MATERNITY BENEFIT (AMENDMENT) ACT 2017 (UPDATE)

Clarifications Issued By Ministry of Labour

Ministry of Labour and Employment, Government of India vide Gazette notification dated 31^st March 2017 has fixed 1^st April 2017 as the date on which the Maternity Benefit (Amendment) Act, 2017 shall come into force.

The Ministry of Labour and Employment has also issued a corrigendum notification bearing No. S.O. 1049 (E) dated 3^rd April 2017 clarifying that Section 4(1) of the Amendment Act which deals with crèche facility to be provided by establishments having 50 or more employees, shall come into effect from 1^st July 2017 and not Section 3(5) which deals with working from home!

Further, on 12^th April 2017 the Ministry of Labour in consultation with Chief Labour Commissioner (Central) has examined various queries raised by stakeholders on the applicability and other aspects of the Amendment Act and issued clarification to those queries. This has provided much needed clarity on the queries being raised by various establishments and women employees in relation to the 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.

One of the important clarifications provided by the Ministry is that the benefits given under the Amendment Act are applicable to women who are on the maternity leave at the time of coming into effect of the Amendment Act.

Example A: Lady has taken maternity leave which continues beyond 1^st April 2017. Based on the clarification provided, she will be entitled to avail the benefits under the Amendment Act and get extended leave of 26 weeks.

Example B: Lady has taken maternity leave which gets completed on 31^st March 2017. She will not be entitled to the benefits of the Amendment Act.

Clarifications issued by Ministry of Labour

	Queries	CLARIFICATION
1.	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.
2.	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)?	Yes.
3.	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.
4.	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 woman during pregnancy is unlawful and punishable under Section 21 of the MB Act.
5.	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.