Maternity Benefit Act 1961:

Table of Contents

Introduction

The Maternity Benefit Act, 1961 is a legislation that protects the employment of women at
the time of her maternity. It entitles women employees of ‘maternity benefit’ which is fully
paid wages during the absence from work and to take care of her child. The Act is applicable
to the establishments employing 10 or more employees. The Maternity Benefit Act, 1961 has
been amended through the Maternity (Amendment) Bill 2017 which was passed in the Lok
Sabha on March 09, 2017. Thereafter, the said Bill was passed in Rajya Sabha on August 11,
2016. Further, it received assent from the President of India on March 27, 2017. The
provisions of the Maternity Benefit (Amendment) Act, 2017 (“Amendment Act”) came into
effect on April 1, 2017, and the provision with regard to crèche facility (Section 111 A) came
into effect with effect from July 1, 2017.

Applicability 

Upon reading Section 2 along with Section 3 (e) of Maternity Benefits Act, 1961 (“Act”), it
can be safely concluded that the Act is applicable to establishments such as factories,
(“factory” as defined in the Factories Act, 1948), mines (“mine” as defined in the Mines Act,
1952) and plantations (“plantation” means a plantation as defined in the Plantations Labour
Act,1951). 

The Maternity Benefit Act also applies to establishments belonging to Government and
establishments wherein persons are employed for the exhibition of equestrian, acrobatic and
other performances as per section 2(b). The said Act is also applicable to every shop or
establishment defined under law, wherein ten or more persons are employed on a day during
the preceding twelve months and which is applicable in relation to shops and establishments
in a particular state.

Thus, considering the above, in Delhi, the Act applies to all “establishments” and
“commercial establishments” which are covered under the ambit of Section 2(9) and 2(5)
respectively of the Delhi Shops and Establishments Act, 1954.
Further, as per the proviso of Section 2 of the Maternity Benefit Act, the State Government
may, subject to obtaining approval from the Central Government, declare that the provisions
of Act be applicable to any other establishment or class of establishments which are either
carrying out industrial, commercial or agricultural activities or otherwise any other activity.

It may be noted that the provisions contained in this Act, save as otherwise provided
in sections 5A and 5B, shall not be attracted to any factory or other establishments to which
the provisions of the Employees’ State Insurance Act, 1948, as per Section 2(2) of the Act.
Further, as per Section 26 of the Act, the appropriate Government has the power to exempt
through a notification, an establishment, from the ambit of the Act subject to the conditions
laid down in Section 26.

Eligibility 

A woman must be working as an employee in an establishment for a period of at least 80

days in the past 12 months to be entitled to maternity benefit under the provisions of the
Maternity Benefit Act. 

Main Highlights of the Amendment in Material Benefit 

The time of maternity leave which a lady worker is qualified for has been expanded from 12
weeks to 26 (twenty) weeks. The Act once in the past enabled pregnant ladies to profit
Maternity Benefit for just 6 a month and a half before the date of anticipated conveyance and
a month and a half after the date of conveyance. Presently, this period has been expanded to 8
months. The time of maternity advantage of 26 weeks can be stretched out to ladies who are
as of now under maternity leave at the hour of usage of this revision in the Act. The improved
Maternity Benefit can be profited for the initial two kids. According to the revision, a lady
having at least two enduring kids will be qualified for 12 (twelve) weeks of Maternity Benefit
of which not more than 6 (six) will be taken preceding the date of the normal conveyance. A
lady who embraces a kid underneath the age of 3 (a quarter of a year, or an appointing mother
(that is an organic mother, who utilizes her egg to make an undeveloped organism embedded
in some other lady), will be qualified for Maternity Benefit for a time of 12 (twelve).
Each foundation having 50 (fifty) or more representatives will be required to have an
obligatory creche office (inside the recommended good ways from the foundation), either
independently or alongside other normal offices. The lady is likewise to be permitted 4 (four)
visits per day to the creche, which will incorporate the interim for rest permitted to her.

Work from home: If the idea of work allocated to a lady is with the end goal that she can
telecommute, a business may enable her to telecommute post the time of Maternity Benefit.
The conditions for telecommuting might have commonly concurred between the business and
the lady.

Prior Intimation: Every foundation will be required to give the lady at the hour of her
underlying arrangement, data about each advantage accessible under the Act. 

The arrangement identifying with “telecommute has been presented through the Act and can
be practiced after the expiry of 26 weeks’ leave period. Considering the idea of work, a lady
can profit advantage of this arrangement on such terms that are commonly concurred with the
business. The raising of the maternity profits by 12 weeks to 26 weeks is in accordance with
the proposal of the World Health Organization which gives those kids must be solely
breastfed by the mother for the initial 24 weeks. 

The expansion in the maternity leave can help in expanding endurance paces of youngsters
and solid improvement of a kid.

Creche Facility Introduced by Maternity Benefit (Amendment) Act, 2017

In terms of Section 11A of the Maternity Benefit Act, every establishment to which the Act
applies and have fifty or more employees must establish a Crèche facility within such
distance as may be prescribed through notification. The Creche must be established either
separately or along with common facilities. The employer must allow women at least four
visits a day to the crèche and it shall also include the interval for rest allowed to her. Every
establishment is required to intimate in writing and electronically to every woman at the time
of appointing her initially regarding every benefit available under the Maternity Benefit Act.
National Guidelines for setting up and running creches under the Maternity Benefit
(Amendment) Act, 2017

Section 11A mandates the establishment of crèches within such distance as may be
prescribed, either separately or along with common facilities. As per Section 2(l),
“prescribed” means prescribed by rules made under this Act. Further, as per Section 28 of the
Act, rules can be prescribed by the State or Central Government as the case may be for
carrying out the purposes of the Act. The following are some of the key guidelines published
in the Gazette by the Ministry of Women and Child Development. 

Crèche For Whom

The use of a crèche facility is proposed to be extended to children of the age group of 6
months to 6 years of all employees including temporary, daily wage, consultant and
contractual personnel. 

Crèche Location

The center should be near/at the workplace site or in the beneficiaries’ neighborhood, within
500 meters.

Timings

The crèche preferably should open for 8 hours to 10 hours. In this case, the workers can
follow a shift system. In case the establishment has day and night shifts, then the crèche
should also be run in shifts.

Facilities to be provided

Crèches should be concrete, with a min space of 10-12 sq.ft. per child, with ventilation,
drinking water and with no unsafe places such as open drains, pits, garbage bins near the
center. Further, other facilities to be provided include:

 A guard, who should have undergone police verification. 



 Ramps and handrails.

  Every Creche should have one supervisor per crèche.
 The Creche should have a minimum of one trained worker for every 10 children
who are under three years of age.
 For every 20 children above the age of three, the creche should have one trained
worker along with a helper.
 No plumbers, drivers, and electricians and other outside persons should be allowed
inside the crèche when children are present.
 A Crèche monitoring committee should be formed having representations from
among crèche workers, parents, and administration. 
  Forming a grievance redressal committee for inquiring into instances of sexual
abuse.

Maternity Benefit (Mines and Circus) Amendment Rules 2019

It is pertinent to note these rules do not apply to Crèches established in Mines and Circus
establishments. Crèches in Mines are regulated by the Maternity Benefit (Mines and Circus)
Amendment Rules 2019. Some of the key provisions include:

 Rule 2 (b) – The crèches are set up for children under 6 years of age.

 Rule 4- The crèches are divided into 4 Types (A, B, C, D) based on the number of
women employed. 

 Rule 4- Basic Standard requirements to be provided. 

 Rule 8- The crèches shall be open during the whole day and open at night if the
women employees are at the office. 

 Rule 9- Restriction of access to outsiders. 

 Rule 10- Guidelines for medical arrangements. 

Are creche facilities mandatory?

The language of Section 11A of the Amendment Act, 2017 is that Crèche facilities shall be
established at “every establishment”. Thus, going by the rule of literal interpretation, it can be inferred
that the section mandates to establish crèches only in those “establishments” covered under the
definition of “establishment” under Section 3 (e) of the Act. 
Further, it can also be inferred that an “establishment” excluded under Section 2(2) or excluded by
notification under Section 26 of the Act, is not obliged to set up a crèche as mandated. 

As mentioned above, Section 11A’s mandate to set crèches applies to “establishments” under the
ambit of the Maternity Benefit Act, 1961. Further, the clarification notification issued on behalf of
The Maternity Benefit (Amendment) Act, 2017, clarified that as Section 2 has not undergone an
amendment, there are no changes regarding the application of the Act of 1961. As per Section 2(b), an
“establishment” includes every shop or establishment within the meaning of any law for the time
being in force in relation to shops and establishments in a State. 

Consequently, crèches are mandatory in all establishments covered under Delhi Shops and
Establishment Act, 1954. As per Section 2(5) of the 1954 Act, “commercial establishment” means any
premises wherein any trade, business or profession or any work in connection with, or incidental or
ancillary thereto is carried on..”. Further, as per Section 2(9) of the Act of 1954, “ ‘establishment’
means a shop, a commercial establishment…”. 

Thus, Crèches are mandatory in companies, firms and consultant companies even though they may be
incorporated or registered under The Partnership Act, 1932 or Companies Act, 2013.

Conclusion

The Amendment Act has come into force with effect from 1 April 2017. All establishments covered
under the Amendment Act were supposed to amend their existing maternity benefit policies to bring it
in line with the Amendment Act with effect from 1 April 2017. The changes brought through the
Amendment Act are applauded by everyone. However, there are different aspects of the Amendment
Act that require clarity. It is not clear whether increased maternity benefits will also be applicable to
women who are currently undergoing maternity leave. Furthermore, the justification for having
separate effective date for implementing “work from home” option is not clear, for the reason that
works from home is an enabling provision brought into force to inspire employers to provide such
choice to a woman depending upon the nature of work being handled by her and not a statutory
requirement under the MB Amendment Act. The requirements like creche facilities require more
capital and operating expenditure on the part of the employer. The establishments will have to bear
the whole cost of providing leave to employees. In most countries, the cost of maternity leave is
shared by the government, employer, insurance agency and other social security programs.