Maternity Benefits in Organised and Unorganised Sector

Author: Sudhanshu Kumar, Symbiosis Law School, Hyderabad

The organised sector has shown a lot of improvement and inventions in employment benefits which has made it one of the fast-paced industries. On the other hand, the unorganised sector has been giving employment to people with no major educational background or skill-set. As there has been a rise in economic growth and improvements, the expectation and skill requirements have also increased. This has majorly affected the traditional unorganised sector.

The labour legislations in India have been less effective in the traditional sector as they do not apply to most unorganised sectors. (Arpita Mukherjee, Tanu M. Goyal, Employment Conditions in Organised and Unorganised Retail: Inspections for FDI Policy in India, 6 JBRMR, 26 (2002).) There are possibilities of employees getting salaries way below the minimum wage, employees might need to work late hours, and have little to no bonus payments, maternity and sick leaves, and other labour rights. As the number of women employees has been increasing in each industry, it has become more important to regulate and provide maternity benefits to the working mothers. The main aim of these benefits and leaves is to provide safe space for mothers who can take complete rest during pregnancy and post birth.

History of Maternity Benefits in India

The International Labour Organisation came up with the “Maternity Protection Convention” in 1919 where it talked about protection of motherhood in workspaces. In India, the Government failed to understand the need for suitable maternity legislations and was too slow to adopt the recommendations. The provincial government of Bombay was the first one to pass the Maternity Benefit Act in 1926, which was followed by other Provinces.

In order to reduce the disparity in different benefits available in different provinces the State passed “the Maternity Benefit Act” in 1961 which preserved the rights of working mothers so that they can take care of themselves and their new-borns. The Indian parliament’s sole objective in enacting the Act was to protect motherhood and to regulate women’s employment for a specific period pre- and post-childbirth.

Maternity Leave Provisions

As per Sec 11(2) and Sec 67(2) of the Act, and the Code, each business needs to illuminate ladies representatives "about the benefits accessible to them under the Maternity Benefit Act" at the their of their recruiting. They likewise need to post a rundown of maternity benefit arrangements, as indicated by Sec 19 of the Act and Sec 71 of the Code.

Under Sec 4(1) and Sec 10, a business can’t employ a lady, in no less than about a month and a half from the time she has conveyed or had an unsuccessful delivery. According to Sec 59(1) and Sec 65(1), no lady can work in a foundation following her delivery for somewhere around a month and a half. According to Sec 4(2) and Sec 59(2) a business can't give any kind of debilitating, or difficult movement which incorporates long working hours for a time of a month after the multi week duration. In the new change of 2017, under Sec 4(3), and Sec 59(3) the most extreme time a lady is permitted maternity benefit was extended to 26 weeks. Additionally, Sec 5(5) states that on the off chance that the idea of the work performed by the lady should be possible from home, the business might permit her to do as such subsequent to profiting of the maternity benefit for such period and on such circumstances as the business and the lady may commonly concur.

Applicability of Maternity Benefits in different sectors

Under the Maternity Benefits Act, every woman who has been employed in an organisation for at least 80 days, which includes public holidays and days she was not working, is allowed to avail maternity leave. (Sec 5(2) of Maternity Benefit (Amendment) Act, 2017 and Sec 60(2) of Code on Social Security, 2020.) This act, including its latest amendment, leaves out 95% of women’s workforce as they are unorganised workers. Under chapter IX, it has been specified that the “Central Government shall frame and notify laws and welfare schemes pertaining to unorganised workers on matters relating to life and disability cover, health and maternity benefits, old age protection, education, and other benefits as the government may deem fit.” (Chapter IX, Code on Social Security, 2020.)

In the case of B Shah v. Labour Court, Coimbatore and Ors., (1978-1 LLJ 29.) the SC observed, in the event of business in light of day to day wage, the salary should be made for the entire days, this incorporates wage-less occasions so the pay received isn't only 100 percent of the wages which would likewise incorporate advantages that were profited through maternity benefits.

Although the Code provides for the application of maternity benefits in the unorganised sector, the lack of any length, schematic provisions, or deadlines, among other things, makes it appear to be a highly speculative proposition. [Vineet Bhalla, The Flaw in India’s Maternity Benefit Law, (2018), https://www.thequint.com/voices/opinion/the-flaw-in-indias-maternity-benefit-law (last visited June 2, 2022).] Furthermore, the Code excludes many workers, including farm labourers, scheme workers, and contributory workers. When you add in the requirement that unorganised workers register on a platform, you have an exclusionary recipe that appears to be designed to make accessing such benefits more difficult rather than easier.

Conclusion and Recommendations

Our existing maternity leave policies, with its boss obligation worldview, will keep on deterring numerous organizations from employing ladies without even a trace of help or motivating forces. Rather than bringing the whole monetary weight of extended maternity benefits on bosses, the public authority could acquaint a component which lessens the weight on the business while likewise filling in as an inspiration for the organizations to utilize more female workers.

With the existing issues regarding employment of women, it is critical to improvise the existing regulations. The Indian government should play the role of regulator and should continue focusing on generating employment and methods to protect maternity benefits in the organised sector, while at the same time it should balance and insulate the unorganised sector from the adverse impact. In order to do so a major change can be brought by making maternity leaves gender-neutral. This will be quite beneficial to ensure that both parents can participate in child-rearing and the burden does not just lie upon the working mother.