Introduction

The Maternity Benefit (Amendment) Act, 2017[1] (hereinafter referred to as the “Maternity Act”) is a landmark law which has enhanced the maternity benefits already available under the parent Maternity Benefit Act, 1961. The Act has increased the duration of paid maternity leave available to working mothers from 12 weeks to 26 weeks. However, for women, who already have two surviving children will be only entitled to a paid maternity leave of 12 weeks. Further, the Maternity Act has introduced provisions for adopting mother and commissioning mothers[2] who are entitled to maternity benefit leave of 12 weeks from the date on which the child is being handed over to the mother. 

The Maternity Benefit Act had come into force on April 1, 2017. As certain queries were raised before about the applicability of the Act to contractual women employees, applicability on mothers who have already availed maternity leave and dismissal of women employees due to pregnancy, the Ministry of Labour and Employment clarified such queries, the details of which have been discussed in our article available here.

Provision of Creche under the Act

An important provision, Section 11A, introduced by the Maternity Act is that any establishment which has 50 or more employees shall have the facility of creche. This provision has sparked a lot of debates and discussions among employers on whether the provision is to be interpreted to be applicable on establishments with 50 or more female employees or on establishments with 50 or more employees.

It is pertinent to note that since this section specifically mentions the term ‘employees’, therefore, the obligation to have a creche applies to all establishments with 50 or more employees, inclusive of males and females. The term ‘employees’ has been used to make the provision gender neutral, because though a woman is biologically endowed to give birth, however, the responsibility to take care of a child lies with both the father and the mother. Therefore, even if an establishment consists of only males, such establishment should have a creche facility so as to enable fathers to bring their children to the creche.

Further, Section 11A of the Maternity Act safeguards the intent of Section 48 of the Factories Act, 1948, which requires factories with more than 30 female workers to have a creche. Therefore, even if a factory has less than 50 employees but has at least 30 females, such factory will be under the obligation to have a creche under the Factories Act, 1948. Further, if Section 11A of the Maternity Act had been framed to be applicable on establishments with 50 or more female employees, then, Section 48 of the Factories Act, 1948, would have lost its effect as factories having more than 30 women workers but less than 50 women workers would have done away with the compliance of having a creche.

Manner of having creche under the Maternity Act

The Maternity Act has not prescribed any details or manner of instituting or maintaining a creche in an establishment. Therefore, the Social Security Division, Ministry of Labour and Employment, has issued a circular[3] dated November 17, 2018, wherein State governments have been requested to frame and notify Rules prescribing amenities and facilities required to be provided in a creche. 

As the Guidelines on creche facilities are awaited from the respective State Governments, therefore, establishments may, in the meantime, adopt as guidelines, the provisions relating to creche from various existing laws. For example, both the Factories Act, 1948,[4] and The Building and other Construction Workers’ (Regulation of Employment and Conditions of Service) Act, 1996,[5] provide that creches shall-

  1. provide adequate accommodation
  2. be adequately lighted and ventilated
  3. be maintained in a clean and sanitary condition;
  4. be under the charge of women trained in the care of children and infants.

Further, it is to be noted that creche facilities should be available to employees free of cost.

Risks under the Maternity Act

The benefits available under the Maternity Act are indeed a boon to female employees. However, the issue arises whether such obligations would create apprehension in the minds of employers to employ women owing to financial constraints consequent to providing the benefits. Though existing laws such as provisions of equality and non-discrimination under the Indian Constitution and the Equal Remuneration Act, 1960 prohibit discrimination of males and females at workplace, however, a system is required to keep a strict check at ground level on practices involving intolerance or discrimination towards women at workplace. Also, a system may be developed by the government to reduce the financial liability on the employer to make strike a balance between the interests of the employer and that of the employees.

Further, the proviso of Section 11A states that employer shall allow 4 visits a day to the creche by the woman employee. The proviso conflicts with the section which is applicable on both male and female employees, therefore, the issue arises as to whether male employees are allowed to visit the creche. A clarification or amendment in this regard is awaited.