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CRECHE RULES UNDER THE MATERNITY BENEFIT ACT

INTRODUCTION

Among the BRICS countries, India stands with the lowest percentage of women in the labor force.[1]In India, where the epidemic was at its worst,[2] a poll conducted by LinkedIn and the report as depicted in the LinkedIn Workforce Confidence Index[3], revealed that 46% of working moms admitted to staying late to make up for lost time at the office and that 42% found it difficult to concentrate on work when their kids were at home. Better childcare facilities are needed for mothers so they can care for their newborns until they are six years old. How the amended Maternity Act is going to address the issue is discussed below.  

ENACTMENT OF THE MATERNITY BENEFIT ACT

The Act was passed by the government at the central level and its enforcement is in the hands of the ruling governments at the state level for implementation in all industrial sectors (including organized and unorganized sectors) except the mining and circus industries. The old Maternity Benefit Act, 1961 was amended by the new Maternity Benefit Act, 2017. This is a landmark piece of legislation that not only add to the provisions of the previous Act like increasing the number of fully paid maternity weeks, and providing full-paid maternity leave to adoptive mothers but also introduces new provisions like the crèche facility.

PROVISIONS OF CRECHE FACILITY

Any business with a fixed number of 50 or more employees is mandated to have a creche facility under Section 11A[4]. If the dilemma arises whether the establishment needs to have 50 male or female workers for the application of the provision then it becomes necessary to highlight the term “workers” which is used expressly in this section. It states that all businesses with 50 or more employees—both male and female—are required to provide a crèche. The phrase “workers” has been chosen to make the clause gender-neutral.

The Maternity Act makes no specific recommendations for how to set up or operate a crèche in a business. As a result, to address this issue, the Ministry of Labour and Employment’s Social Security Division under the Government of India released a circular in November 2018 in which it encouraged state governments to prepare and publish rules defining the amenities and facilities that must be offered in a crèche. Employees under Section 67[5] are provided with the alternative of maintaining a common crèche facility by availing the common creche facility of central and state governments, municipalities, private entities, NGOs, etc. With regard to removing the requirement for individual creche facilities, the aforementioned alleviates a significant obstacle that businesses face, in addition to saving the cost of infrastructure requirement of such facility.

In addition to the aforementioned, any woman who starts working for an employer must get a notification in writing through email. Every benefit that such a woman employee is eligible for under the Maternity Benefits Act must be described in this notification. Significantly Karnataka government was the first among state governments to draft and issue the crèche rules in July 2018 followed by the state of Haryana among the Indian states.[6]

BURDEN ON WOMEN EMPLOYEES AND EMPLOYER

Not every woman has the good fortune to have her parents or in-laws help with the child. Even the commutable distance between a woman’s home and her place of employment has a significant role in whether or not she chooses to bring her child along with her. Women working in the unorganized sector only make enough money to cover their basic expenses, and the natural world is a little too demanding for them to be able to bring their children with them to work which in turn makes the crèche facility useless even if the workplace has access to a usable crèche facility.  This, therefore, makes the lady unsure about whether to return to her profession or stay at home and care for the child.  

India has recently surpassed many European nations in terms of the facilities offered for maternity benefits. The Income-tax Act defines a “prerequisite” as any benefit provided to an employee by their company. Unless specifically exempted as specified in the Income Tax Act, perks are typically subject to taxation. The disadvantage of this is that the Indian government does not offer any help in the form of a tax rebate, leaving the employer to pay for it. Rich businesses are thus interested in adopting and putting into practice the crèche point of the Maternity Act. Small businesses, however, find it difficult to follow the same crèche guidelines in all industries.[7]

CONCLUSION

Employers will discriminate against women of reproductive age if such leave is mandated by the employer, as it is in India. Policy design is crucial. More capital and operating expenses are necessary because of additional requirements like creche facilities. The proposed Rules’ uncertainty about the location of the creche facility is the main issue with the inclusion of the aforementioned provisions. The necessity to make it accessible to female workers who work from home might create logistical snares since the wording “at an adequate distance” is not sufficiently precise. Providing the employer with the alternative to compensate the employees for the childcare used, is a significant move that can be advantageous to both employers and employees. To make sure that costs are not increased exponentially, this has to be regulated with a limit that can be charged as compensation. For maintaining equality between employers and employees, a minimum amount of reimbursement might also be implemented. The gospel is that only female staff are being allowed for crèche visits as per Section 11A[8], the lack of paternity leave for men/single fathers reinforces the belief that children are the responsibility of women. With no provisions for paternity leave in the Act and failure on the part of the government to entirely enforce the maternity benefit act are questions of concern. The government’s ambitious objective to have an equal number of men and women in every institution takes a hit as a result.

Author(s) Name: Susmita Sen (Panchanan Barma University, Cooch Behar)

References:

[1] Devanik Saha, ‘Only 27% Indian women are in labour force- the lowest among BRICS countries’ (Business Standard, 04 May 2017) <https://www.business-standard.com/article/current-affairs/rising-income-stability-linked-to-declining-working-females-in-india 117050400150_1.html#:~:text=Only%2027%25%20Indian%20women%20are,BRICS%20countries%20%7C%20Business%20Standard%20News> accessed 04 December 2022

[2] Martin Farrer, ‘‘World’s worst outbreak’: what India’s papers say as coronavirus crisis toll mounts’ (The Guardian, 22 April 2021) < https://www.theguardian.com/world/2021/apr/22/worlds-worst-outbreak-what-indias-papers-say-as-coronavirus-crisis-toll-mounts > accessed 04 December 2022

[3]LinkedIn ‘Nearly 50% of India’s working women are feeling increased stress due to the pandemic (10th edition, 2020) 1 <https://www.indiaspend.com/uploads/2021/03/03/Workforce%20Confidence%20Index%20(Wave%2010).docx> accessed 04 December 2022

[4] Maternity Benefit (Amendment) Act 2017, s 11A

[5] The Code On Social Security 2020, s 67

[6] ‘Karnataka Creche Rules Notified Establishments’ (Sattva CFO) <https://sattvacfo.com/karnataka-creche-rules-notified-for-establishments/> accessed 20 December 2022

[7] (Income Tax Department) <https://incometaxindia.gov.in/pages/acts/income-tax-act.aspx> accessed 04 December 2022.

[8] Maternity Benefit (Amendment) Act, 2017, s 11A