Labour Law Maternity Benefit Act Assignment

1. Maternity
Benefit Act

2. INTRODUCTION
In India women constitute a significant population of workforce i.e. 23.6%.In our country
Women with infants and children are working in both informal and formal sectors of economy.
Maternity and family leaves are for parents of newborn and newly adopted child which helps
the worker to balance their career and family. Maternity leaves are very crucial to provide
support for a women's career and also allow for peace of mind as they ensure benefits along
with security of work and pay, many employers consider it to be a baseline and may extend
the benefits in terms of duration or payment.
As the topic is extensive we have Focused on bare act and concerning studies. Here we have
also reviewed similar laws governing maternity benefits in selected developing countries .Its
main focus on difference in approach towards the Act and possible changes. Limited
comparitative review includes Singapore, Malaysia, Thailand, Indonesia and Philippine...the
parameters for comparison is also kept limited. Rest of this paper unfolds as follows. Section 1
being the introduction. Section 2 discusses the global landscape of maternity benefits and
policies. It also provides more details on the history of maternity policy and the act in India.
Section 3 covers the criticisms faced by the act in India and suggestions for the same. Section 4
compares the act in India with the aforementioned countries. Section 5 provides concluding
thoughts and scope for further research.

3. History of Maternity Benefit Act in India
Introduction of Bill
• The Bombay maternity Benefit Bill was first introduced in 1929 in the Bombay legislative council.
• It was the first law established for working women in India. The legislation for working women has always remained a double-
edged sword.
• The bill was first introduced in Bombay as it was a textile hub for India with more number of textile Industries with more
female worker population.
• Since, after the introduction of the bill, the number of women workers was retrenched for two reasons, i.e., Due to the
introduction of the Maternity Benefit bill and Restriction for engaging women workers in the night shift.
• In Pre–Independence era passing of labour legislation was significantly determined by colonial perspective as it had to cater to
diverse interests, interests of the colonial state, metropolitan capital, the interests of Indian Business, nationalists Trade
unionists and Philanthropists in Britain and India.
• A study on the high rate of infant mortality by Lady doctor Barnes, who was appointed by the British Government and she
supported the maternity benefit scheme by quoting few reasons which included lack of medical care and nursing, defective
sanitation, industrial employment of married women, delivery at the work premise in a poor unhygienic environment.
• Mill owners refused as they have to strive for the competition with the rest of the other countries like Britain and Japan, also
considered any social welfare legislation as interests of the British Industry and to deliberately bring down the Indian textile
Industry. They felt it as an additional burden to paying cotton cess and would destroy the textile industry
• Dr. Babasaheb Ambedkar, N.M Joshi and M.K Dixit drafted the bill, and thereafter, defended it in the assembly.

4. Whose responsibility for providing benefit to women– State, Capital or husband?
N.M. Joshi (Trade unionist): Maternity Benefit Fund should be created through a tax on the whole of the industry and should be
administered by the local Government.
M.K.Dixit: The husband and not the employer should be responsible.
BR Ambedkar: The burden of this ought to be largely borne by the Government because the conservation of the people’s welfare
is primarily the concern of the Government.
• With the above opinions shared, the bill was revised with the onus of responsibility of payment of maternity benefit on to the
employers alone.
• As Employers felt it is extremely unfair it was amended by changing general tax on all factories to tax only those factories
which engage women workers and the bill was passed.
• As per the recommendation of Royal Commission on labour in 1929, similar such bills were enacted in other provinces, based
on that central Government brought the first central enactment Mines Maternity Benefit Act 1941 and other central legislations
like ESI Act 1948 and Plantations Labour Act 1951, Working Journalists (Conditions of Service) and Miscellaneous Provisions
Act, 1955 which had limited application.
Delayed enactment of the Maternity Benefit (post-Independence)
The Maternity Benefit Act, 1961 was enacted as per Article 42 of the constitution which states a humane working condition for
pregnant women and keeping in view all the pre-constitution legislations and the revised ILO Maternity Protection Convention,
1952.
History of Maternity Benefit Act in India

5. Amendments in MBA

6.  Commissioning mother included
 The maternity leave increased from 12 weeks to 26 weeks
 12 weeks for women having more than two or more surviving children
 Commissioning mother and a woman who legally adopts a child below the age of three months shall be entitled for a period of
twelve weeks from the date the child is handed Over to commissioning mother or adopting mother
 Work from home with mutual agreement between the employer and woman
 Every establishment having fifty or more employees shall have the facility of crèche
 Four visits to crèche in a day which includes the interval for rest allowed
 Intimation of maternity benefit in writing and electronically to every woman at the time of appointment
Amendments in MBA
• The Ministry of Women and Child Development has formulated the National Minimum Guidelines for setting up and running
crèches under the Maternity Benefit Act 2017
• The latest amendments increased the employer’s liability in providing maternity benefit to the manifold.
• Initially, the benefit was provided to organized sectors now with the latest amendments, women in unorganized sectors are also
covered. About 1.8 million women, in the organized sectors, are benefitted. With enhanced benefits, India is now ranking in 10th
position with rest of the other countries. It is quite a long struggle for fifty-six years to have the basic rights of health and safety of
women.
• Maternity benefit bill which was intended to provide protection to the women and to exercise their rights during the maternity
period now remains a deterrent to the employment of women in various industries.

7. Maternity Benefit Act 1961
Maternity Benefit Act 1961 is a law that provides maternity benefits to working women. It also prohibits the employment of
women in unhealthy conditions or during night shifts or overtime.
Maternity Benefit Act, 1961 is a social welfare legislation enacted by the Parliament of India. It ensures that the women
who have been employed for at least 6 months prior to their pregnancy and are employed till the time when they cease
to work due to child bearing shall be eligible for maternity benefit.
The act extends to the whole of India and applies to all factories, workshops and other premises wherein ten or more
persons are employed. It applies not only to female workers but also to male workers in case where a woman is
employed during her pregnancy or within six months after childbirth for lactation purposes.
One of the main disadvantages of Maternity Benefit Act 1961 is that it does not protect women from being fired
for taking maternity leave.
The disadvantages of Maternity Benefit Act 1961 are that it does not cover female employees in case of miscarriage
or abortion, which are common occurrences during the pregnancy. This exclusion is discriminatory against female
employees and should be removed by making suitable changes in the act
Lastly, this act does not provide for maternity leave for adoptive mothers or for foster
parents taking care of children in need of special care because these people do not
qualify as 'employees' under the provisions of this law.

8. The Maternity Benefits (Amendment) Bill was passed &
received assent from the President of India on March 27, 2017.
The MB Amendment Act is a welcome move towards protection
for women to exercise her right to carry profession guaranteed
under Indian Constitution.
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.
MATERNITY BENEFIT ACT 2017.

9. Increase in Maternity
Benefit
The period of Maternity Benefit that a woman employee is
entitled to has been increased to 26 (twenty-six) weeks.
Also , the Act previously allowed pregnant women to
avail Maternity Benefit for only 6 weeks prior to the date
of expected delivery. Now, this period is increased to 8
weeks.
Adoption/Surrogacy:
A woman who adopts a child below the age of 3 months,
or a commissioning mother 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 mother.
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 .
Creche Facility:
Every establishment having 50 or more employees are required
to have a mandatory creche facility. The woman is also to be
allowed 4 visits a day to the creche.
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.

10. Comparison of Maternity
Benefit Act of India with
some other Countries

11. MATERNITY LEAVES GIVEN IN VARIOUS
COUNTRIES
INDIA
12-26 WEEKS
AUSTRALIA
18 WEEKS
BELGIUM
UPTO 15 WEEKS
CHINA
13 WEEKS
SINGAPORE
UPTO 16
WEEKS

12. ■ When we observe we can clearly understand that the maternity benefits and leave period offered by government in
India is high while comparing with the other four countries given above. If we convert that into percentage then India
is offering 30% out of 100%, Singapore is offering 18% out of 100%, Australia is offering 20% out of 100%, China is
offering 15% out of 100% and Belgium is offering 17% out of 100%. Therefore, INDIA is giving a reasonable and fair
level of maternity leave for women employees.
■ In comparison of the above given countries, the act currently in effect in India is beyond par than almost all other
countries in some manner or the other. India provides almost 85% more duration of maternity leave than the
international convention, whereas, all of these countries provide leave for twelve to fourteen weeks on average. India
has a better structure and process of remuneration than these countries. The biggest drawback of the act implemented
in India is that the maximum liability falls on the employer and almost nothing on the Government. E.g. Thailand has a
social welfare fund, which provides 45 days of maternity leave payment. Moreover, India is the only country amongst
the considered, which makes a crèche facility mandatory. Prior to the 2017 amendment of the act, the benefits
available in India were comparable to those available in the aforementioned countries. In the past couple of years,
India has taken major steps in transitioning from a developing economy to a developed one, by providing multiple
benefits to employees to boost the workforce. This includes an increase in facilities of the existing labour laws. This
has put India in the 3rd position globally for the maternity facilities it provides.

13. CASE-1 ON
MATERNITY
BENEFIT ACT
Prachi Sen v. Ministry of Defence (2021)

14. Background of the case-
In India, maternity benefits are governed under the Maternity Benefit Act, 1961 (the “Act”).
The Act is applicable to every organization having ten or more employees. As per the Act, every
woman who is employed in an organization for eighty days or more is eligible for maternity
benefits.
In 2017, the Government of India amended the Act and provided for more inclusive maternity
benefits to women. Among other changes, a new provision, i.e., Section 5(5), was inserted in the
Act, under which the work from home benefit was provided to women availing maternity leave. As
per Section 5(5) of the Act, an employer may allow nursing mothers to work from home if the
nature of work assigned to them so permits, on mutually agreed conditions between the employer
and woman employee.
In furtherance of the amendment and due to the Covid-19 pandemic, in June 2021, the
Government of India issued an advisory encouraging employers to provide the work from home
benefit to nursing mothers wherever the nature of work so permits for at least one year from the
date of childbirth. The advisory further directed the employers to spread awareness about the
benefits provided under Section 5(5) of the Act

15. Case Summary-
The Karnataka High Court
reaffirmed that the work-from-
home advantage under Section
5(5) of the revised 2017 Act may
only be granted in circumstances
where the nature of the task
provided to the woman permits
her to do so in the case of Prachi
Sen v. Ministry of Defence (2021)
who held the position of executive
engineer At the Semiconductor
Technology and Applied Research
Centre (STARC), a division of the
Indian Ministry of Defence.
Following her maternity leave , she had not
gone back to work and asked STARC for
childcare leave. After she had been out of
the office for two months without
authorization, STARC sent her a
communication asking her to return. A
petitioner who was seeking benefits under
the Act and contesting the communication,
therefore, appeared before the Court who
emphasised that she was engaged in
sensitive and challenging scientific work.,
which was private and was not allowed to be
made public. As a result, her work was of a
type that prevented work from home from
being feasible
The Court’s ruling specifies the circumstances
under which female employees may use the
work-from-home benefit . It can be said that
the ruling was a good first step toward
comprehending the restrictions placed on some
companies ability to offer benefits under the
Act. Employers should take the initiative to
accommodate nursing moms and make sure
that there are sufficient childcare services on-
site or nearby. As a result, the court
determined that the work-from-home benefit
under Section 5(5) of the Act would not be
available in this particular instance. However,
the Court ordered STARC to show compassion
for working moms of new borns while taking
the pandemic situation into.

16. CASE-2 ON
MATERNITY
BENEFIT ACT
Dr. Mandeep Kaur v. Union of India

17. In the case of Dr. Mandeep Kaur v. Union of India (2020), the Himachal Pradesh High Court ruled
that contractual employees are also entitled to maternity benefits in addition to all consequential
benefits, such as a continuation of service.
Facts of the case
The Respondents hired the Petitioner on a temporary basis to serve as a medical officer. She
requested maternity leave for 180 days, and she received all related perks, such as continued
employment. The Respondents, on the other hand, disputed her claim by pointing to the parties’
employment contract, which lacked the clause that would have given her the right to maternity
leave.
The Himachal Pradesh High Court determined in its ruling on July 15, 2020, that the Petitioner was
entitled to maternity leave benefits notwithstanding the fact that the contract did not contain a
covenant with respect to the claim. Even though she was employed contractually, the Court ruled
that denying her the benefit of maternity leave would be a breach of Article 21 of the Indian
Constitution’s intentions. The Municipal Corporation of Delhi v. Female Workers & Anr (2000),
which gave a “clear mandate” about the access to maternity leave for women employees who are
employed on a daily pay, was one of many rulings on which the Court relied. Additionally, the Court
cited two rulings, namely, Rasitha C. H. v. State of Kerala (2018) and Rakhi v. State of Kerala (2017),
both of which upheld the right of contractual workers to benefits under the Maternity Benefit Act
of 1961.

18. Provisions discussed in the case
The Maternity Benefits Act of 1961 contains the pertinent sections in this case. Section 2 of the Act
lists all the circumstances in which it is applicable. The Act is mentioned as being applicable to
industries, mines, or plantations, as well as government-owned facilities where workers are
engaged for equestrian, acrobatic, and other performance exhibitions. It also applies to any other
store or business with ten or more employees that fall under the purview of any currently in effect
statute. Another clause that applies in this situation is Article 21 of the Indian Constitution, which
stipulates that no one may be deprived of their life or personal freedom unless they are doing so in
accordance with a legal process.
Judgement delivered by the Himachal Pradesh High Court
1. The Court ruled that every establishment with 10 or more employees has the right to receive
maternity benefits under Section 2 of the Maternity Benefit Act of 1961.
2. The Court ruled that although she worked at the ECHS clinic, she was still entitled to maternity
benefits under Section 2 of the Maternity Benefit Act of 1961.
3. The Court also ruled that even though she was a contractual employee, she was still eligible
for benefits under this statute because all women employees, regardless of whether they had
a permanent or contract position, are entitled to maternity leave.

19. Critical analysis of the judgement
In relation to India, this judgement is the appropriate step in securing and advancing working women’s rights. The
nation had approved the Maternity (Amendment) Bill, 2017, which expanded the amount of time that working
women were entitled to paid maternity leave from 12 weeks to 26 weeks, the third-highest amount in the world.
Although the government took this laudable action for working women, it was regrettable that just 1% of all
working women were able to take advantage of this “phantom legislation”. Only those who work for companies
with at least 10 workers were covered by the rule, which represents a minuscule part of the small number of
working women in India.
According to estimates, 84% of women work for businesses with fewer than 10 employees, meaning they are not
covered by the Act as it is now written. Prior to the verdict, women who were working under a contract were
likewise not eligible for maternity leave benefits. This suggests that the bulk of the Act’s beneficiaries would not be
able to take advantage of its provisions. However, a lot more working women in India would be able to take
maternity leave as a result of the Himachal Pradesh High Court’s ruling.
Additionally, the decision is apt for working pregnant women because it guarantees them not only maternity leave
till delivery but also other perks, such as keeping their jobs.. The Court correctly held that denying maternity leave
to someone who is employed under a contract would constitute a violation of the right guaranteed by Article 21 of
the Constitution. Regardless of the nature of their profession, all working women have the right to be treated with
respect and dignity at the workplace, and as such, they must be given all the resources necessary to uphold that
standard.
In order to safeguard their fundamental right to life, women must take maternity leave. Additionally, if she is forced
to work while pregnant, the health of the unborn child may also be harmed, which would again be a breach of the
mother’s and the foetus’s rights to life. As a result, it’s imperative that all working women receive the benefits of
maternity leave.

20. CASE STUDY :
ENERCON(INDIA) Ltd V. ENERCON
GmbH (2014)

21. THE PARTIES
Enercon (India) Limited Enercon GmbH
This was an Indian company with its registered
office in Daman, India, incorporated in 1994 with
the collabo-ration of Enercon GmbH. The
company was formed to conduct business in
alternative sources of energy, specially wind
energy, using the patented technology of Enercon
GmbH made accessible through patent licensing.
The company had planned to manufacture and
sell wind turbine generators in India.
This was a German company founded in 1984
with its registered office in Aurich, Germany. The
company was involved in the business of
alternate energy, particularly wind energy. The
company held several patents for technology
related to wind turbine generators. GmbH
(Gesellschaft mit beschränkter Haf-tung) is
German for ‘company with limited liability’.
A B

22. FACTS
• A dispute between the parties related to non-delivery of certain
supplies in accordance to the Intellectual Property License
Agreement(IPLA). The important aspects are highlighted here:
i. IPLA is governed by the Indian Law
ii. The venue for arbitration proceedings was London
iii. The applicable law for arbitration proceedings was Indian Arbitration
Act

23. JUDGEMENT
• Both the substantive law and the law governing arbitration
agreement was Indian Law.The ‘venue’ was London, but there
was no mention of ‘seat’ of arbitration. On the facts, the SC held
that despite London being chosen as ‘venue’ of arbitration, the
‘seat’ of arbitration was India as parties had specifically chosen
Indian Laws to govern different aspects of the dispute. Moreover,
they had not designated another forum to be the ‘seat’ using
express words to that effect and that besides being designated as
the ‘venue’ there was no other factor connecting the dispute to
London. Hence India had a closer and more intimate connection
with the contract. The court could not find any connecting factors
which indicated that London is the seat of arbitration.

24. • On the other hand irrespective of what the seat of arbitration is, the
hearings, meetings and other proceedings of an arbitration can be held
anywhere, as agreed to between the parties, and/or with the consultation
of the arbitrators, and is commonly known as the ,’venue’ of arbitration.
This is for the sake of convenience of the parties and the arbitrators, in
saving time,money and labour.
• Therefore, it was ruled by the hon’ble SC that London was the ‘venue’
chosen by the parties merely for the conduct of arbitration and India was
the ‘seat’.

25. Understanding the concept of ‘seat’ & ‘venUe’
Every arbitration must have a “Locus arbitri” or the place of
arbitration which governs the proceedings of the arbitration
and have supervisory powers over the arbitration. The terms
“seat” and “venue” often sounds mystifying for deciding the
jurisdiction. In general, the “seat” is a place where the court
have supervisory and governing powers over the arbitral
proceedings. However, the “venue” is a place where the
proceedings of arbitration such as hearing of witnesses,
experts or the parties or the inspection of goods and
properties are concluded. When the venue is designated
without specifying the seat of the arbitration in the arbitration
agreement then the stated venue is the juridical seat of arbitral
proceedings. The courts puts emphasis on the language of the
arbitral agreement. When the venue is designated for arbitral
proceedings then it can be considered as seat but where the
venue is designated for the purpose of hearing or inspections
then it may signify that such place is only a venue.

26. Major Learnings
 Article 15(3) of the Indian Constitution empowers the State to make special provisions for women. The main
objective of Article 15 (3) is based on “protective discrimination” keeping in view the weak physical position of
women.
 Article 21 – Right to Life and Personal Liberty means the right to lead a meaningful, complete and dignified life.
It does not have restricted meaning. 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 Directive Principles of State Policy contained in Part IV of the Constitution of India, under Article
41 requires the State to make effective provision for securing the right to work and to education.
 Article 42 requires that the State shall make provision for securing just and humane conditions of work and for
maternity relief.
What are the key features of the Maternity Benefit Act 1961?
The 1961 Act seeks to regulate the employment of women in some establishments for a particular period before
and after childbirth and to provide for maternity benefit and certain other benefits.

27. Applicability:
The act is applicable to all establishments employing 10 or more employees – factories, mines, plantations,
Government establishments, shops and establishments under the relevant applicable legislation, or any other
establishment as may be notified by the Central Government.
Benefits under the Act:
 Leave with average pay for 6 weeks before the delivery.
 Leave with average pay for 6 weeks after the delivery.
 A medical bonus if the employer does not provide free medical care to the woman.
 An additional leave with pay up to 1 month if the woman shows proof of illness due to the pregnancy, delivery,
miscarriage or premature birth.
 In the case of miscarriage, six weeks leave with average pay from the date of miscarriage.
 Light work for ten weeks (six weeks plus one month) before the date of her expected delivery, if she asks for it.
 Two nursing breaks in the course of her daily work until the child is 15 months old.
 No discharge or dismissal while she is on maternity leave.

28. CONCLUSION
Today, it is a well-known fact that women also need a maternity leave for various reasons. In this regard, the Maternity
Benefit Act will be beneficial for them as well as their child. This can be done by taking some precautions such as eating
healthy foods, getting enough sleep and rest, etc., which will help them to recover soon.
Maternity benefit act then and now is a great opportunity to look at how our laws have evolved over time and what
the current state of affairs is. The Maternity Benefit Act has been amended in many ways. From providing a
maximum period of 12 weeks leave (excluding the 4 weeks compulsory statutory leave), to providing 16 weeks
maternity benefit, to allowing mothers to avail maternity leave both before and after childbirth and so on.
The Maternity Benefit Act is a law in India that mandates the payment of maternity benefits for women employees
working in private and public sector to enable them to take care of their child and themselves after childbirth. The act
was passed by the Parliament of India on 2nd October 1961, and came into effect on 1st January 1962.
The Maternity Benefit Act of 1961 was first passed to ensure that working women received adequate maternity
benefits. However, a closer look at it reveals that it did not guarantee a minimum duration of paid leave, which could
be taken by the woman in the form of cash or medical insurance.
Since its inception, this law has been one of the most important laws protecting women's rights at work.

29. Team Members

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