THREATS

Introduction

With the beginning of present phase, as the number of women employees is growing, the
maternity leave and other maternity benefits are becoming increasingly common. Pregnancy
in the workplace is a fundamental human rights issue of equality of opportunity between
women and men. Women should not suffer negative consequences in the workplace simply
because they are pregnant. Job functions and workplace rules may affect a pregnant employee
differently than other employees. As a result, adjustments to working conditions may be
required to reduce or eliminate discriminatory effects. The origin of the scheme of maternity
protection can be traced towards the end of nineteenth century in Germany when maternity
allowance itself became a part of the insurance scheme. Other developed countries, including
the United Kingdom and Australia, also adopted similar schemes. In Great Britain, maternity
allowance was included in the health insurance scheme in 1912 and in Australia Maternity
Allowance Act came into force in 1912. However, international recognition for maternity
benefit was only achieved by the efforts of the International Labour Organization. Women
are to be protected from discrimination on the basis of gender. This includes protection from
discrimination because of: pregnancy, childbirth, breastfeeding, miscarriage or stillbirth,
abortion, and complications arising from any of the above. Pregnancy and maternity are an
especially vulnerable time for working women and their families. In many occasions
pregnancy leads to loss of employment and loss of pay to the working women. Maternity
benefit is important human rights which cannot be denied on any grounds. It is fundamental
human rights promoting gender equality intends to improve the mother and child health. It
plays important role in economic growth and poverty reduction and it is a part and parcel of
decent work agenda. Taking in to consideration of the miserable condition of the working
women ILO attempted to safeguard the health of expectant and nursing mothers and protect
them from job discrimination. Maternity Protection Convention, 2000 (No. 183) is the most
up-to-date international labour standard on maternity protection, although the earlier relevant
instruments, the Maternity Protection Convention, 1919 (No. 3), and the Maternity Protection
Convention (Revised), 1952 (No. 103) are still in force in certain countries. Convention No.
183 provides for 14 weeks of maternity benefit to women to whom the instrument applies.
Women who are absent from work on maternity leave shall be entitled to a cash benefit
which ensures that they can maintain themselves and their child in proper conditions of health
and with a suitable standard of living and which shall be no less than two-thirds of her
previous earnings or a comparable amount. The convention also requires ratifying states to
take measures to ensure that a pregnant woman or nursing mother is not obliged to perform
work which has been determined to be harmful to her health or that of her child, and provides
for protection from discrimination based on maternity. The standard also prohibits employers
to terminate the employment of a woman during pregnancy or absence on maternity leave, or
during a period following her return to work, except on grounds unrelated to pregnancy,
childbirth and its consequences, or nursing. Women returning to work must be returned to the
same position or an equivalent position paid at the same rate. Also provides a woman the
right to one or more daily breaks or a daily reduction of hours of work to breastfeed her child.

Maternity Protection in India

In India, Article 42 of Indian Constitution contains the directive that the State shall make
provision for securing just and humane conditions of work and maternity benefits. Art. 21,
Right to Life and Personal Liberty is not merely a right to protect one’s body but the
guarantee under this provision contemplates a larger scope. Right to Life means the right to
lead meaningful, complete and dignified life. It does not have restricted meaning. It is
something more than surviving or animal existence. The meaning of the word life cannot be
narrowed down and it will be available not only to every citizen of the country. Therefore, the
State must guarantee to a pregnant working woman all the facilities and assistance that she
requires while protecting her employment as well as her own and her child’s health. The
measures and provisions which are made in the Post-Constitution Period for women workers
are mostly based on these constitutional provisions. In order to regulate the employment of
women in certain establishments for certain periods before and after childbirth and to provide
for Maternity benefits and certain other benefits, the Indian Parliament enacted the Maternity
Benefit Act, 1961. The Maternity Benefit Act, 1961 was enacted keeping in view not only all
those legislations related to maternity that existed from the pre-Constitution days, but also
ILO’s mandate regarding maternity protection (ILO Maternity Protection Convention 103,
1952).

The newly passed Maternity Bill in Rajya Sabha increases the leaves of a pregnant mother
from 12 weeks to 26 weeks. This is available for women working both in the private sector
and public sector. Nursing mothers may be allowed to work from home beyond the 26 week
maternity leave period. However, this depends on the organisation she works for.
The 26 week maternity benefit is available only to those women employees who have two
children. Women who opt for a child through surrogacy or adopt a baby below three months
will be entitled to only 12 weeks of maternity leave. This Act is applicable to all
organisations that employ 10 or more persons.
Organisations with 50 employees will now have to mandatorily have crèches. Another option
is for a few firms to set up a common facility within a prescribed distance. The employer will
have to allow the mother to have four visits to the crèche which will include the interval of
rest allowed to women employees

Notice of claim for maternity benefit

A pregnant woman is required to give her employer a notice in writing, stating that the
maternity benefit that she is entitled to should be given to her or any person nominated by her
and that she will not be working during the period in which she receives the benefit. This
notice should start from the date when she was absent from work, provided that date is not
earlier than six weeks from the date of her expected delivery. This notice can also be given
soon after the delivery.

On receiving the notice, the employer is bound to permit the woman to absent herself from
work until the expiry of six weeks after the delivery. In case a woman fails to give notice, this
does not disentitle her from claiming maternity benefit. The employer is still liable to pay her
the amount due to her.

There are some cases which says about the use of Maternity benefits act and what extent it
can be extended can be seen through the following cases.

In Municipal Corporation of Delhi v. Female Workers’ (Muster Rolls) and Another, the
Municipal Corporation of Delhi stated that it granted maternity leave to its regular female
workers but not to the daily wage ones, that is, the ones on the muster rolls. The respondents
argued that the practice was unfair as there was hardly any difference in the work allotted to
female workers who were regular and those who were on daily wage. Accepting the
contention, the Supreme Court upheld the right of female construction workers to be granted
maternity leave by extending the scope of the Maternity Benefits Act, 1961 to daily wage
workers.
In a landmark case last year, Kakali Ghosh v. Chief Secretary, Andaman & Nicobar
Administration and Others, the main question was whether a female employee of the Central
Government could ask for 730 days of uninterrupted child care leave under the Central Civil
Services (Leave) Rules, 1972. Justices S.J. Mukhopadhaya and V. Gopala Gowda of the
Supreme Court held that a female employee of the Central Government is entitled to two
years uninterrupted leave for childcare, which may also include illnesses and schoolwork. It
held that the judgment of the Calcutta High Court, Circuit Bench at Port Blair was ignorant of
the rules framed by the Central Government and directed the respondents to comply with the
directions issued by the Central Administrative Tribunal, Calcutta, Circuit Bench at Port
Blair.

Shah vs. Presiding Officer, Labour Court, Coimbatore and others[17]: The question before
the Supreme Court was whether in calculating the maternity benefit for the period covered by
Section 5 Sundays being wage less holiday should be excluded. Issues Raised before the
Courts with Reference to Maternity Benefit Act, 1961.

 The Apex Court in holding that Sundays must also be included, applied the beneficial
rule of construction in favor of the woman worker and observed that the benefit
conferred by the Act read in the light of the Article 42 of the Constitution was
intended to enable the woman worker not only to subsist but also to make up her
dissipated energy, nurse her child, preserve her efficiency as a worker and maintain
the level of her previous efficiency and output.
 During this period she not only cannot work for her living but needs extra income for
her medical expenses. In order to enable the woman worker to subsist during this
period and to preserve her health, the law makes a provision for maternity benefit so
that the woman can play her productive and reproductive roles efficiently.
 Performance of the biological role of child bearing necessarily involves withdrawal of
a woman from the workforce for some period.

CONCLUSION

After analyzing various provisions of the 1961 Act and related cases it can be concluded that
Maternity Benefit Act, 1961 is a boon for the working women in the sense that they don’t
have job insecurity during their maternity period. But there are certain shortcomings of the
Act which needs to be looked upon. Firstly, the duration of leave must be extended in order
to allow a mother to fully recover and recuperate as well as efficiently nurse her new born
child. Within this, the duration of post natal period must be extended keeping in mind factors
like rise in number of late marriages, caesarean births, nuclear families and increasing
urbanization. In the 44th Indian Labour Conference, held in February, 2012, it has been
recommended that Maternity Leave under the Maternity Benefit Act be increased from the
present level of 12 Weeks to 24 Weeks.

Secondly, The MBA does not comply with international standards and there are huge gaps in
its implementation as the entire responsibility of the Act rests with the employer. Placing the
entire burden of providing maternity benefit on the employer is akin to giving him an
incentive to not provide any benefit at all. Thus, the cost of maternity protection should be
shared amongst different agencies through some form of social insurance scheme or general
taxation.

Thirdly, the responsibility of child care is often singularly put upon women. This reinforces
patriarchal notions and stereotypes and also enhances the discrimination they face from
employers. In order to reduce these factors, the Act should also make a provision for
paternity leave and follow a more egalitarian approach. Also, protection should be available
to persons who adopt children.