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What About Maternity Benefits, Creche Facilities For Women In The Informal Sector?

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By Vasudevan V

In May this year, several news reports suggested that a variety of state governments in India were contemplating amendments to labour law, which, according to experts, disproportionately intended to negatively impact women in contract labour. Among other proposed amendments, sweeping changes to the Maternity Benefits Act were also debated among other measures such as equal pay, safe working conditions, basic food and water, lighting and transport and overtime fees. The argument made in favour of amendments suggests that a more business-friendly environment will be created.

From a workplace and justice lens, the maternity benefit law is vital. Labour laws apply to that area of activity where workers are working under a “contract of employment“.  Working women, especially, in informal labour arrangements, are a large absolute number.

The 2011 Census data demonstrates that female migration for employment and business grew from 12% to 16% between 2001 and 2011, the same data also demonstrates that there is a shift in the pattern of female labour migration from predominantly rural destinations to urban. Forty-seven per cent of all women migrating for work/business were in urban areas in 2001, by 2011 migration to urban destinations had jumped to 58%.

The Periodic Labour Force Survey (PLFS) data for 201718 demonstates a dramatic fall in work participation rates (WPR) among rural women from 24.8% to 17.5% (a fall of almost 25 million women workers) in rural India after 201112.  While the decline is broad, it is most intense for women from Scheduled Castes (SC) and Scheduled Tribes (ST) categories. Meanwhile in urban India, stagnation in ter,s of female WPR has continued to be worrysome at a lowly 15% and 14% across the last decade.

Women in self-employment or in casual (contractual) workers, do not get to share India’s growth story. The data demonstrates that only women in “regular employment“, defined narrowly as “consistent hours of work not including wages or working conditions”, have seen a somewhat consistent increase over the last three decades.

PLFS 201718, also tells us that manufacturing workers constituted the single largest occupation for the female workforce in urban areas, followed by textile and garment workers, food processing, tobacco products (beedi workers) and leather goods. Teachers constituted another big chunk as are domestic workers (care workers) followed by salespersons,  housekeeping and restaurant services workers, clerks and in other occupations. All these occupations function on contracts.

For a great overview on labour law and women, head here.

Representational image.

What position do these contract workers occupy in law? It is reasonable to assume that the nature of ­coercion experienced by these women workers with unimaginable levels of job insecurity, and increased cost and demands of urban living, is qualitatively different from those felt and experienced by men. For these workers, wages and other conditions of work are critical. This article does not get into the nature of changes proposed by state governments in recent times, but does instead, examine the current Maternity Benefits Law and how it applies in particular to contractual labour.

Do Maternity Benefits Apply To Contractual Labour

Yes; As per section 2(o) of the Act, it applies to a woman employed, whether directly or through any agency, for wages in any establishment. Therefore, the benefits under this law cover all women who are employed on contractual, casual, fixed-term, including consultants.

Here is what the law provides:

  • At an average daily wage of 3 months before the date of leave amounting to 26 weeks, of which not more than 8 weeks to be before delivery of the child OR if the woman has two or more than two surviving children then 12 weeks, of which, more than 6 weeks have to be before delivery of the child.
  • A medical bonus of Rs.3500/- if there is no free pre or post-natal care given.
  • Leave with wages for miscarriage for a period of  6 weeks, following a miscarriage
  • Leave with wages for a tubectomy operation for a period of 2 weeks
  • Leave for illness arising out of pregnancy, delivery, premature birth, etc., subject to a maximum of 1 month
  • Where a woman has availed due leave as permitted under the Act, she can’t be discharged or dismissed either during such leave or on such a day where the leave expires, citing absence on such date of expiry.
  • Conditions of service can’t be modified to her disadvantage during the intervening period,  a ploy popularly used by effecting change like transfers, to discourage a woman employee from pursuing her career.

The Employees’ State Insurance Corporation (ESIC) Act, 1948, an Act enacted to provide for certain benefits to employees in case of sickness, maternity and employment injury, covers women who are employed, wherever the establishment is covered under this Act, and not the Maternity Benefit Act. However, if a woman employee crosses the ceiling of wages prescribed under the ESI Act (currently at ₹21,000/-) at any point of time,  then the Maternity Benefit Act applies to her during such period.

How Effective Are Maternity Benefits? 

In Municipal Corporation of Delhi v. Female Workers (Muster Roll) & Anr 2000 I CLR 879 (S.C.), the Supreme Court held that the provisions of the Maternity Benefit Act, 1961 are:

Wholly in consonance with the Directive Principles of State Policy as set out in Article 39 and in other Articles, specially, Article 42 of the Constitution of India. It further held that a just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood.

Unfortunately, several organizations continue to avoid recruiting women, or worse still pre-screen women, to avoid employing women who they perceive might decide to become mothers. All too often, women on contract, or engage in casual labour, either lack a contract completely or don’t understand their own contracts. There are even instances where a woman employee is conveniently discharged either by asking to go, asked to resign or termination of the contract, mid-way through their pregnancy.

Representational image.

For most women, as with men, employed in contractual labour, the functional operating requirements of any field or on-site industry requires workforce to perform manual labour with little or no space for rest during work shifts.

Nearly every industry has a set of workers engaged, either directly (basis Industrial Employment Standing Orders Act, or through agencies under the Contract Labour Act) governed by fixed-term contracts. In cases where such contracts are covered by ESIC, the benefits to women are comprehensive and relatively fair.

The serious flaw in a fixed-term contract system is in the nature of its fixed-ness. An FTC is usually valid for a period of 12 months, which is in direct conflict with the leave available under the Maternity Benefits Act at 26 weeks or  6-½ month.  Therefore, any duration of maternity leave will either subsume over half a tenure of an engagement or overshoot the tenure if the maternity period occurs on the verge of the tenure’s end!

This seriously impacts welfare benefits, especially under ESI because the scheme calls for active payroll of the woman. Such practice is neither legal nor ethical, and in many instances, several High Courts have directed reinstatement of employment or application of maternity benefits, as in the case of National Highways Authority of India vs National Commission for Women, among other cases. 

Representational image.

The Maternity Benefits Act, by an amendment effected in 2017 (w.e.f. 1.4.2017), has also mandated providing creche facilities by every establishment, having 50 or more employees. While the Ministry of Labour and Employment issued a notification on November 17, 2017, advising the state governments to frame rules regarding crèche facilities, only, 2 States have notified relevant rules viz. Karnataka, and Haryana, while Tamilnadu has only recently issued draft rules for comments and review.

While there have been numerous representations to the ministry by employers fora, chambers and industry, thus far nothing seems to have moved. Even if there are prospective developments of rules or regulation, making implementation feasible seems rather difficult.

Making Things Better

  • Every fixed-term contract or consultancy agreement or any similar type of assignment, for women, needs to have a standard clause, stating that the contract is deemed to have been extended and valid, wherever the woman employee has availed leave under the Maternity Benefits Act/ESIC till the date of expiry of such leave.
  • Whenever a woman employee applies for an extended leave basis medical proof as permissible under the MB Act/ESIC, extend the tenure of the contract suitably and automatically.
  • Ensure that every woman employed or deployed at an on-site facility is either directly or indirectly are aware of the benefits and avails of it in due course, if and when she so chooses.
  • Ensure that every pregnant woman who continues to work at an on-site facility during pre-maternity leave is provided with basic facilities such as an area to sit and rest.
  • Initiate an assessment of the actual need of a creche by employees or wherever the infrastructure permits, engage with reputed creche agencies.
  • Consider a fair creche allowance to employees.

About the Author: Vasudevan has a rich experience in legal and corporate governance over 35+ years of experience in FMCG and Retail Industry. Currently, he is the General Counsel(Consultant) for Smollan-HUL JV and the Head – Retail Vertical for Ungender.


Ungender Insights is the product of our learning from advisory work at Ungender. Our team specializes in advising workplaces on workplace diversity and inclusion. Write to us at contact@ungender.in to understand how we can partner with your organization to build a more inclusive workplace.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

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Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

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MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

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A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

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A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

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A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

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A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
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Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
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