A

Project Work

On

Analysis on Certain Aspects of Maternity Benefit (Amendment) Act, 2017

Submitted to:

Ms. Vinita Tripathi Mam (Faculty of Women & Law)

Submitted By:

Shubhankar Thakur

Roll no:-149

Semester-X -C

Date of Submission: 6th April 2018

Hidayatullah National Law University

i
 Declaration

I, Shubhankar Thakur, hereby declare that, the project work entitled, ‘Analysis on Certain
Aspects of Maternity Benefit (Amendment) Act, 2017’ submitted to H.N.L.U., Raipur is record
of an original work done by me.

Shubhankar Thakur

Roll No. 149

Section C

Batch XIII

ii
 Certificate
I, Shubhankar Thakur, hereby declare that, the project work entitled, ‘Analysis on Certain
Aspects of Maternity Benefit (Amendment) Act, 2017’ submitted to H.N.L.U., Raipur is made
under the guidance of Ms. Vinita Tripathi Mam, Faculty Member, H.N.L.U., Raipur.

Shubhankar Thakur

Roll No. 149

Section C

Batch XIII

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 Acknowledgement

First and Foremost, I take this opportunity to express my profound gratitude and deep
regards to my teacher Ms. Vinita Tripathi (Faculty of Women & Law) for her exemplary
guidance and encouragement throughout the course of this project. The blessing help and
guidance given by her time to time shall carry me a long way in the journey of life on which I am
about to embark.

I also take this opportunity to express a deep sense of gratitude to IT lab staff and library
staff for their cordial support, valuable information and guidance which helped me in completing
this task efficiently.

Lastly, I thank almighty, my family and friends for their constant encouragement and
help without which this assignment would not be possible.

Shubhankar Thakur

Roll No. 149

Section C

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 Contents

Serial Topic Page No.

No.

1. Declaration ii

2. Certificate iii

3. Acknowledgment iv

4. Chapter-1: Introduction 7

5. Maternity Benefit Act: Applicability and Eligibility 8

6. Applicability of Maternity Benefit Act, 1961 9

7. Key highlights of the Amendment Increase in 10

Maternity Benefit

8. Khaitan Comments 12

9. Conclusion 13

10. Bibliography 14

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 RESEARCH METHODOLOGY

The objective of this project is to get an overview of right to legal aid in India, so the major
sources of literature have been articles, research papers of academicians and reports of various
international organizations committed to bring an end to counterfeiting.

This is a doctrinal research which is descriptive and analytical in nature. Footnotes have been
provided wherever needed, to acknowledge the source.

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INTRODUCTION

The Maternity Benefit Act, 1961 aims to regulate the women employed in factories, shops or
commercial establishments 10 or more employees foe certain period of leaves before and after
child- birth.

Recently, the Maternity Benefit (Amendment) Bill was introduced and passed in Lok Sabha and
Rajya Sabha and the same received the President’s assent on 27th March, 2017. As per the
recommendation of Ministry of Labour and Employment, 1 April, 2017 was decided to enforce
the provisions of Maternity Benefit (Amendment) Act 2017 and all the establishments covered
under the MB Amendment Act would be required to amend their existing maternity benefit
policies in accordance with the MB Amendment Act with effect from 1 April 20171.

As per the new Maternity Benefit (Amendment) Act, 2017, the Maternity leave available to the
working women has been increased from 12 weeks to 26 weeks for the first two children’s.
Besides, provisions relating to work from home and crèche facility have been introduced in the
Amendment Act2.

After the notification of the Amendment Act, a slew of queries have been started flowing both
from the employers as well as the employees. Since the Maternity Benefit Act including the
Amendment Act is applicable to every organization 10 or more people, its impact is fairly wide.

1
http://corporatelawreporter.com/2017/06/20/faqs-on-the-maternity-benefit-amendment-act-2017-2/
2
http://corporatelawreporter.com/2017/06/20/faqs-on-the-maternity-benefit-amendment-act

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Maternity Benefit Act

Context: The amendments to the Maternity Benefit Act, which were introduced in 2017, in
particular the provision of 26 weeks of paid maternity leave and the mandatory crèche facility,
are path-breaking, but there are concerns over their feasibility. Recently, the Labour Ministry
placed the financial burden of implementing these measures squarely on the employers; this
legitimises these concerns.

Need: With the advent of modern age, as the number of women employees is growing, the
maternity leave and other maternity benefits are becoming increasingly common.
But there was no beneficial piece of legislation in the horizon which is intended to achieve the
object of doing social justice to women workers employed in factories, mines and plantation3.

Objective : Providing maternity leave and benefit to women employee to protect the dignity of
motherhood by providing for the full and healthy maintenance of women and her child.

Applicability: The Act is applicable to all establishments which are factories, mines, plantations,
Government establishments, shops and establishments under the relevant applicable legislations,
or any other establishment as may be notified by the Central Government.

Eligibility: As per the Act, to be eligible for maternity benefit, a woman must have been
working as an employee in an establishment for a period of at least 80 days in the past 12
months. Payment during the leave period is based on the average daily wage for the period of
actual absence.

3
https://www.insightsonindia.com/2017/11/16/insights-editorial-maternity-benefits/

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Applicability of Maternity Benefit Act, 1961

The Act is to regulate the employment of women in certain establishments for certain period
before and after child-birth and to provide for maternity benefit and certain other benefits.
 It applies to every establishment being a factory, mine or plantation including any such
establishment belonging to Government and to every establishment wherein persons are
employed for the exhibition of equestrian, acrobatic and other performances4.
 It will also apply to every shop or establishment within the meaning of any law for the time
being in force in relation to shops and establishments in a State, in which ten or more
persons are employed on any day of the preceding twelve months.

The Bill seeks to amend the Maternity Benefit Act, 1961 to provide for the following:-

 Maternity leave available to the working women to be increased from 12 weeks to 26

weeks for the first two children.
 Maternity leave for children beyond the first two will continue to be 12 weeks.
 Maternity leave of 12 weeks to be available to mothers adopting a child below the age of
three months as well as to the “commissioning mothers”. The commissioning mother has
been defined as biological mother who uses her egg to create an embryo planted in any
other woman.
 Every establishment with more than 50 employees to provide for crèche facilities for
working mothers and such mothers will be permitted to make four visits during working
hours to look after and feed the child in the crèche5.
 The employer may permit a woman to work from home if it is possible to do so.
 Every establishment will be required to make these benefits available to the women from
the time of her appointment.

4
https://www.insightsonindia.com/2017/11/16/insights-editorial-maternity-benefits/
5
Clarification by GOI/ Ministry of Labour & Employment vide no. S-36012/03/2015-SS-I dated 12.4.2017.

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Challenges for the implementation of the Act

Cost intensive
1. The measures introduced, particularly the crèche facility, are cost-intensive and may
deter employers from hiring or retaining pregnant women.
2. A 2014 International Labour Organisation report specifically cautions against making
employers solely liable for the cost of maternity benefits for this reason.

Solution:

1. Maternity benefits can be provided either through compulsory social insurance or public
funds6.
2. The government should create a corpus fund to partially sponsor the costs to be incurred
by the employer to provide maternity benefits.

Key highlights of the Amendment Increase in Maternity Benefit:

The period of paid maternity leave (“Maternity Benefit”) that a woman employee is entitled to
has been increased to 26 (twenty six) weeks. Further, the Act previously allowed pregnant
women to avail Maternity Benefit for only 6 (six) weeks prior to the date of expected delivery.
Now, this period is increased to 8 (eight) weeks. 7Maternity benefit of 26 weeks can be extended
to women who are already under maternity leave at the time of enforcement of this Amendment.

 No increased benefit for third child: The increased Maternity Benefit is only available for the
first two children. The Amendment provides that a woman having two or more surviving
children shall only be entitled to 12 (twelve) weeks of Maternity Benefit of which not more than
6 (six) shall be taken prior to the date of the expected delivery.

 Adoption/Surrogacy: A woman who adopts a child below the age of 3 (three) months, or a
commissioning mother (means a biological mother, who uses her egg to create an embryo

6
https://www.insightsonindia.com/2017/11/16/insights-editorial-maternity-benefits/
7
Clarification by GOI/ Ministry of Labour & Employment vide no. S-36012/03/2015-SS-I dated 12.4.2017.

x
implanted in any other woman), will be entitled to Maternity Benefit for a period of 12 (twelve)
weeks from the date the child is handed over to the adopting mother or the commissioning
mother8.

 Creche Facility: Every establishment having 50 (fifty) or more employees are required to have
a mandatory creche facility (within the prescribed distance from the establishment), either
separately or along with other common facilities. The woman is also to be allowed 4 (four) visits
a day to the creche, which will include the interval for rest allowed to her9.

 Work from home: If the nature of work assigned to a woman is such that she can work from
home, an employer may allow her to work from home post the period of Maternity Benefit. The
conditions for working from home may be mutually agreed between the employer and the
woman.

 Prior Intimation: Every establishment will be required to provide woman at the time of her
initial appointment, information about every benefit available under the Act.

8
https://www.icsi.edu/Portals/22/Article%20on%20MBA%20Act,%202017.pdf
9
Clarification by GOI/ Ministry of Labour & Employment vide no. S-36012/03/2015-SS-I dated 12.4.2017.

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Khaitan Comments

Various aspects of the MB Amendment Act need further clarity, for example, period up to which
the crèche facility could be extended to the concerned woman as well as the aspect of
availability, frequency and extent of nursing breaks. It is also unclear whether increased
maternity benefits will apply to women who are presently undergoing maternity leave.
Employers may have to wait until the rules are issued clarifying the position on the arrangements
which could be made with third party service providers for crèche facilities with specific
requirements in terms of distance from workplace, dimensions and other related aspects10.

Moreover, the rationale for having separate effective date for implementing "work from home"
option is also unclear, given the fact that work from home is an enabling provision to encourage
the employers to provide such option to a woman depending upon nature of work being handled
by her and not a statutory requirement under the MB Amendment Act. We expect the Ministry of
Labour to shortly come out with rules clarifying these aspects.

10
http://www.mondaq.com/india/x/582670/Employee+Benefits+Compensation/Maternity+Benefit+Amendment+
Act+2017+Is+Effective+From+1+April+2017

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 CONCLUSION

The Maternity Benefit Amendment Act is a welcome move towards protection for women to
exercise her right to carry profession guaranteed under Indian Constitution. However, the
amendments has few shortfalls like the women working in an unorganized sector are not
included; the concept of “Paternity Leave” not considered; Rules has to provide a better clarity
on prescribed distance for crèche facility; paid leave for 26 weeks shall be an additional cost for
employers so, this may impact the hiring of women employees.

The amendments in the Bill were taken up following the request by the WCD Minister (Minister
of Women and Child Development) to the Hon’ble Labour Minister to bring about these changes
so that a working woman gets time to exclusively breast-feed her child for 6 months after the
birth. This period also enables the working mother to recuperate herself before she goes to back
to work. In her communication to the Labour Ministry, the WCD Minister had also highlighted
the concerns of commissioning and adopting mothers who also require maternity leave.

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Bibliography:

Reference:

www.icsi.edu/Portals/22/Article%20on%20MBA%20Act,%202017
http://corporatelawreporter.com/2017/06/20/faqs-on-the-maternity-benefit-amendment-act-2017
http://www.mondaq.com/india/x/582670/Employee+Benefits+Compensation/Maternity+Benefit
+Amendment+Act+2017+Is+Effective+From+1+April+2017
https://en.wikipedia.org/wiki/Maternity_Benefit_(Amendment)_Act,_2017
https://corporate.cyrilamarchandblogs.com/2017/06/analysis-certain-aspects-maternity-benefit-
amendment-act-2016/
https://www.insightsonindia.com/2017/11/16/insights-editorial-maternity-benefits/
http://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-hotline-single-
view/newsid/3908/html/1.html?no_cache=1

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