Article (June-2017)


Fall out of increased maternity benefits

H.L. Kumar

Designation : -   Advocate, Supreme Court

Organization : -  New Delhi


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Increase of maternity from 12 to 26 weeks for employees in the female sector is definitely a quantitative leap. However, will establishments be comfortable giving employees six months off and keeping intact when they return? Will it, in effect, it is bound to lead to a decrease in demand for female labour? In fact, well-intentioned as they may be, such 'pro-women' measures may further queer the pitch for women (who already get a raw deal in the labour market) as employers will view women professionals as difficult hires with too much baggage. It may also become legitimately unaffordable for many small and medium establishments to pay 'unproductive' employees for long periods; thereby further marginalising women in the workplace.

While there is an all-round applause from women activists and also from those who are hardly face to face with the alarming unemployment situation in the country. Populism may serve the purpose of winning appreciations for the time being but it is an undeniable fact that it has disconnect with the hard realities prevailing on the ground. The purpose of this representation is not to sermonize but to make the government realistic.

There is no doubt that the maternity leave is very important for the health of the newborn baby because it enables the working woman to exclusively breast-feed her child for six months after birth, which is also recommended by the World Health Organisation. This period also enables the working mother to recuperate herself before she returns to work as well as bond with the child.

Creche facility will further decrease the jobs for women
The enhanced number of leave would be adjusted by the employers but the newly added provision for creche facility would dissuade the employers to incur heavy financial burden in maintaining the creche. The amended provision simply states that "every establishment having fifty or more employees shall have the facility of creche within such distance as may be prescribed, either separately or along with common facilities. Provided that the employer shall allow four visits a day to the creche by the woman, which shall also include the interval for rest allowed to her". Similar provision existed in section 48 of the Factories Act providing for maintenance of creche wherein 30 or more workers are employed. The legislature in its wisdom clarified that not total 30 but 30 women workers were ordinary employed.

This needs clarification. Assuming that an employer is having 50 workers in his establishment and out of that only 4 happened to be women, the interpretation of the amended provision as stated above will call the employer to maintain the creche which will be too expensive and cumbersome.

In order to understand the legal implications it is pertinent to refer to Rules 73 of Delhi Factories Rules pertaining to creche inter alia providing as under:

73. Creches- (1) The creche shall be conveniently accessible to the mother of the children accommodated therein and so far as is reasonably practicable it shall not be situated in close proximity to any part of the factory where obnoxious fumes, dust or odours are given off or in which excessively noisy processes are carried on.

(2) The building in which the creche is situated shall be soundly constructed and all the walls and roof shall be of suitable heat-resisting materials and shall be water-proof. The floor and internal walls of the creche shall be so laid or finished as to provide a smooth impervious surface.

(3) The height of the rooms in the building shall be not less than 12 feet from the floor to the lowest part of the roof and there shall be not less than 20 sq. ft. of floor area for each child to be accommodated.

(4) Effective and suitable provision shall be made in every part of the creche for securing and maintaining adequate ventilation by the circulation of fresh air.

(5) The creche shall be adequately furnished and equipped and in particular there shall be one suitable cot or cradle with the necessary bedding for each child, (provided that for children over two years of age it will be sufficient if suitable bedding is made available) at least one chair or equivalent seating accommodation for the use of each mother while she is feeding or attending to her child, and a sufficient supply of suitable toys for the older children.

(6) A suitably fenced and shady open air play-ground shall be provided for the older children, provided that the Chief Inspector may by order in writing exempt any factory from compliance with this sub-rule if he is satisfied that there is not sufficient space available for the provisions of such a play-ground.

Like maternity benefit the creche facility is equally important since the object of a creche is a place where small children can be left to be looked after while their mothers are attending to their duties as employees in an establishment. But will it not dissuade the employers from employing young women is million-dollar question? It is easier said than done because of the expenses involved and increase responsibilities of the employers.

The only way out is that the government should take it upon itself to open the creches in the proximity of the factories or work places to help facilitate the working women. After all the government is a welfare state and it can shirk from shouldering the responsibilities.

Therefore, the responsibility of providing creche facilities must be undertaken by the Government because it is also a part of the social and women welfare measure.