As we had communicated earlier, the Ministry of Labour and Employment, Government of India (Ministry of Labour) vide Official Gazette notification dated 31 March 2017 (Notification) had appointed 1 April 2017 as the date on which the Maternity Benefit (Amendment) Act, 2017 (MB Amendment Act) shall come into force. However, the provision relating to the “crèche facility” under Section 4 of the MB Amendment Act was scheduled to be made effective from 1 July 2017.
Now, the Ministry of Labour has examined various queries raised by the stakeholders on the applicability and other aspects of the MB Amendment Act in consultation with Chief Labour Commissioner (Central) and issued clarification to the queries on 12 April 2017.
Clarifications issued by Ministry of Labour
Whether the MB Amendment Act will apply to contractual and consultant women employees?
Yes. Since there is no amendment to Section 2 of the Maternity Benefit Act, 1961 (MB Act), the extant provision will prevail. The MB Act is applicable to all women who are employed in any capacity directly or through any agency, i.e., either on contract or as a consultant.
Whether the enhanced maternity benefit under the MB Amendment Act will apply to women who are presently on maternity leave as on 1 April 2017 (i.e., at the time of enforcement of the MB Amendment Act)?
Whether the enhanced maternity benefit under the MB Amendment Act will apply to women who have already completed their maternity leave and joined the organisation on or before 31 March 2017?
No. Women employees who have already completed their maternity leave of 12 weeks under the MB Act and joined the organisation on or before 31 March 2017 shall not be entitled to avail the extended maternity benefit of 26 weeks.
What protections are available to women in case she is fired by the employer after learning about her pregnancy?
Under Section 12 of the MB Act, any dismissal or discharge of a women during pregnancy is unlawful and punishable under Section 21 of the MB Act.
Whether benefits under MB Amendment Act can be extended to the women employed in unorganised sector?
Yes. The MB Act is applicable to all mines, plantations, shops and establishments, factories, etc. in the organised sector as well as the unorganised sector. Also, as clarified in query 1 above, the MB Act is applicable to all women who are employed in any capacity directly or through any agency, i.e., either on contract or as a consultant.
The Ministry of Labour has provided much needed clarity on the queries being raised by the establishments and women employees in relation to the MB Amendment Act. As mentioned in the clarifications issued by the Ministry of Labour and in the decision of the Supreme Court of India in Municipal Corporation of Delhi vs Female Workers (Muster Roll) & Anr, AIR 2000 SC 1274, the benefits provided under the MB Act will be applicable to all women employees, whether engaged as casual employees or on muster rolls or daily wages.