Open Access Research Article
Analyzing Maternity Benefits Under New Social Security Code (By- Vyshnavi Praveen & Ananya Soni)
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Article Details
Analyzing Maternity Benefits
Under New Social Security Code
Authored By- 1. Vyshnavi Praveen
2. Ananya
Soni
Abstract
In
recent times, there has been a push for increasing the role that women play in
the workforce. Globally, there have been several schemes enacted to promote
women’s interest in entering the workforce and providing them with the
necessary skills and benefits to facilitate their entry. Although these efforts
have been beneficial in terms of providing encouragement, women remain a
minority in the male-dominated workforce and are subject to several injustices
such as sexual harassment at the workplace, discrimination, unequal pay and so
on. It is for this reason that the government has to enact special legislation
to protect and promote the interests of women and the Maternity Benefit Act of
1961 is only one such example. The Maternity Benefit Act protects and promotes
women's maternity rights and interests and also ensures that women are not
pushed into giving up their work-life after pregnancy. It is also an important
tool used in integrating women back into society and providing them with the
necessary resources to get settled back in. By application, the original intent
of the Maternity Benefit Act was to cover a wide variety of establishments and
at present covers factories, (as defined in the Factories Act, 1948), mines (as
defined in the Mines Act, 1952) and plantations (means a plantation as defined
in the Plantations Labour Act, 1951). It applies to both governmental and
non-governmental establishments[1].
The Act also applies to shops and establishments that are said to employ more
than 10 individuals as covered under the law. With regard to the Act and in the
interest of protecting and uplifting the position of pregnant women in the
workforce, the State Government is vested with the power to cover any other
establishment under this Act subject to approval by the central government[2].
The New Code of Security 2020 replaces the existing Maternity Benefit Act and
codifies several labour legislations in a bid to simplify and unify these
existing laws.
Key
Words: Maternity Benefits, Women’s Rights, Legal Developments, Unorganized
Sector, Social Security
Chapter
1: Analysing The Need For New Code Of Security, 2020
The
Social Security Code, 2020 or the SS Code was passed by both the houses of the
Parliament and also received Presidential assent in September, 2020. The SS
Code has been enacted to amend and consolidate the laws relating to social
security with the goal to extend social security to all employees and workers
either in the organised or unorganised or any other sectors. The main aim of
the Code is to create a major reform with regard to labour laws and ensures
that there is uniformity and unification of labour legislations. Social
security is an important aspect of improving the working conditions of workers
and also ensures increased participation by the workers and goes a very long
way in ensuring that there is no exploitation. India has a long-drawn history
of workers' exploitation with several individuals, especially short-term
contractors and part-time workers belonging to the unorganised sector being
prey to unfair working conditions and hours without getting the necessary
payments. The aim of this Code is to ensure that benefits not only apply to
those workers with secured jobs in the organised sector but also to other
employees. A study shows that there are over 15 million gig workers in India
and the new social Code aims to ensure that the benefits are not only
applicable to those workers in established jobs[3].
Such eligible female employees are entitled to maternity benefit of 26 weeks
which is not more than 8 weeks shall precede the expected date of her delivery.
The ‘Report of the Committee on Unorganised Sector Statistics’ of the National
Statistical Commission (NSC), 2012 states that the informal sector constitutes
93% of the overall workforce and contributes 50% to the Gross National Product[4].
There are several benefits - such as PF, maternity benefits, life insurance -
that several workers have no access to. With the implementation of the new
Code, more workers will get access to such benefits which will increase the
quality and satisfaction among the workers.
a
gaping hole in the welfare structure for labourers. India is home to one of the
biggest unorganised sectors in all of the world and in that light, the new
security Code seems crucial to protect and promote the interests of these
workers. The aim of this Code is to ensure that benefits are availed by all
workers and not just those working in major establishments. By bringing the maternity benefit under this
Code, the protection and well-being bestowed by the Code is extended to all
women workers, thus enabling them to protect their maternal health while also
preventing discouragement from the workforce. Appropriate measures for the
protection of health and wages of women workers during the maternity period are
of great significance for women as well as society. This Code would ensure that
the maternity benefits are availed by all women workers and are not limited by
the nature of their employment.
Chapter
2: Analysing The Changes Under The New Social Security Code With References To
Maternity Benefits
There
are several benefits that are provided to women under the Maternity Benefit
Act. However, in the new Code there are a few specific changes that have been
brought about under the new Code relating to maternity benefits.
Aadhar
Application:
These
provisions establish the identity of an individual in order to obtain the
benefits under the Maternity Benefit Act. Under Section 142, any individuals
belonging to the unorganised sector will now be required to provide proof of
identification to obtain benefits[5]. The person further has to establish their
identity and the identity of the person nominated to receive maternity benefits
in the event of her death through an Aadhar number. This was a new feature
brought about by the Code which previously did not exist under the Maternity
Benefit Act. The primary reasoning behind such enactment was that if the
government was going to increase the benefits available to individuals and
extend the scope of its applicability, it is essential to ensure that there is
some sort of verification to prevent exploitation and misuse of such benefits.
By bringing about identification requirements, the government will be able to ensure
that such benefits are not being wrongfully obtained. However, this does raise
the question of what will happen to those individuals who do not possess proper
identification documentation.
As
the majority of the Indian unorganised workforce is uneducated, bringing about
such technical requirements might act as a deterrent and act as a roadblock to
the very reasoning for creating such a Code.
Punishments
for non-compliance:
One
of the biggest challenges of any labour statute is with respect to effective
implementation. Despite there being several existing standards, employers
rarely follow up and actually provide their employees with the needful. This is
the reason that the labour standards in India see little to no improvement. Another
crucial aspect is that often workers and employees themselves are not aware of
their rights and this results in exploitation. Considering that the entire aim
of the new Social Security Code is to ensure that even part-time workers and
those people engaged in the unorganised sector seek access to employment
benefits, it would have little to no impact unless the enforcement mechanism is
strictly implemented. In order to ensure this, under the ambit of the new Code
if any employer is found in contravention of the provisions of the Code or the
Maternity Benefit Act and is found denying pregnant employees of their deserved
benefits, then they shall be held liable for a contravention of Section 133 of
the Code and accordingly be subject to imprisonment that may extend up to 6
months or even a fine of up to Rs 50000[6].
This provision contrasts with the provisions under the Maternity Benefit Act,
which calls for punishment in the form of jail time between 3 months to one
year and a fine ranging from Rs 2000 to 5000. Under the new Social Security
Code, repeat offenders found guilty of denying pregnant women the benefits
under the Act can be subject to imprisonment between 2-3 years or a fine that
extends up to Rs 300000. When we place this side by side with the provisions of
the Maternity Benefit Act relating to repeat offenders, we see that the
provisions are a lot more lenient which only calls for imprisonment up to 1
year and a fine that may amount to Rs 5000. By comparing the provisions of the
Code and the Maternity Act, it is evidenced that the new rules under the Code
are more stringent and improve the scope for enforceability. Additionally, the
Code also ensures that all those individuals in charge of providing benefits
but did not do so would be liable under the provisions with the only exception
being that if a few officers involved including the secretary or so on was not
aware of such acts then he or she would not be held guilty under the provisions
of the
Code. With regard to enforceability, the new Code
appears to be the right step in the right direction as it holds employers to
higher standards of care and ensures compliance by placing very high penalties.
This is instrumental to ensure that there is increased compliance and
protection of pregnant women in the workforce. The Code does a good job of
promoting the interests of women and ensuring the benefits under the Maternity
Benefit Act are delivered.
No
right to trade union office bearers to file a complaint before the courts:
Earlier,
under the provisions of Section 23 of the Maternity Benefit Act, officer
bearers of a particular registered trade union of an establishment or
organization - where there exists a pregnant aggrieved woman - were allowed to
approach the courts with the complaints on behalf of the aggrieved[7].
However, under the provisions of the new Social Security Code, this power will
no longer be granted to them and if the aggrieved pregnant woman is facing any
issues which she would like resolved then she would be required to make a
complaint on her own. Under the
provisions of Section 136 of the Code, the power to make a complaint regarding
the unavailability of any benefits that are owed to a pregnant woman can only
be brought about by the aggrieved woman herself and not via any other
intermediary[8]. This particular provision
has garnered its fair share of criticism as it takes away the very meaning and
spirit of collectivism which is a driving force in the labour law movement. For
centuries, collectivism and representation have been extremely important
factors with regard to furthering the rights and liberties of employees and
workers and preventing women from the opportunity to represent their concerns
through an intermediary is a step back.
One fact to note is that women in a lot of cases tend to be subject to
ill-treatment with their opinions not being given as much importance as their
male counterparts and hence a lot of women, in this case, would resort to
making complaints with the help of an intermediary. Denying women the right to
represent themselves and asking them to come forward directly would essentially
deter the movement as a lot of aggrieved women may refuse to come forward in
fear of losing their job or being subject to more unfair treatment. It also
might make them feel isolated and cause a sense of fear which employers may
exploit and prevent aggrieved women from coming forward and exposing such
unfair practices at the workplace. Furthermore, there is a major concern
regarding the anonymity of the women which is something that must be given
utmost importance. By protecting the anonymity of the complainant, employers
can no
longer
coerce or threaten the employees and this would also encourage more and more
women employees to come forward and report their experiences as well. In this
regard, it appears that this feature does not align with the interest of the
women and the Maternity Benefit Act works better.
The
availability of a prior opportunity before punishment in any form:
Although
the provisions for non-compliance under the new Code are a lot more stringent,
it appears that there is more opportunity and increased scope for employers to
try and be in compliance. If it is found that any employer is not in compliance
with their duties under the Maternity Benefit Act and is not providing their
employees with the benefits under the same, then before the imposition of the
penalties as we discussed above, they will first be given an opportunity to
amend their actions and be in compliance before any legal action will be taken.
The inspector or facilitator would be required to issue a written statement of
direction instructing the employer to comply with the provisions of the act and
do the needful within a specified time period and must be given the opportunity
to do so. If the employer adheres to this written command and does the needful
within such period, then no action shall be taken against him however failure
to follow the orders of the inspector within the determined time frame would
result in the punishment as detailed in the Code It is, however, to be noted that the Code
does not provide any sort of legroom or leniency to those individuals found
repeatedly committing the same offence and ensures that strict action is taken
against repeat offenders. The Code mentions that if any employee is found
violating the provisions of the Maternity Benefit Act or denying women
employees the pregnancy benefits repeatedly within a span of three years from
when the first act was committed, in such a case no relief shall be granted and
no time shall be allowed for them to be in compliance with the act and
prosecution under the necessary acts will be carried out immediately under
chapter XII of the Social Security Code, 2020. There are several other features
under the new social security Code that work towards ensuring the upliftment of
the rights of pregnant women. Section 60 of the Code states that all those
women who have worked with the establishment of the organization for a minim
period of 80 days at least in the period before the 12 months from the expected
date of delivery would be entitled to receive maternity benefits[9].
Such eligible female employees are entitled to maternity benefit of 26 weeks of
which not more than 8 weeks shall precede the expected date of her delivery.
This provision for example is very similar to the Maternity Benefit
Chapter
3: A Series Of Missed Opportunities: The New Social Security Code, 2020
While
some of the provisions of the new Code are impressive and appear to work in the
interest of pregnant workers, there still appears to be a major gap that the
Code could have bridged. Firstly, the Code could have ensured increased
flexibility in terms that women should be given maternity leave between 18-26
weeks as this would ensure that all those women who desire to return sooner
have the option of doing so. With several policymakers of the opinion that
prolonged maternity leave may
impact
women's chances of receiving promotions or moving further in their careers,
some women may desire to return to the workplace sooner and such choice must be
provided to them which the new Code does not do. Another approach that the new
Code could have taken would be to enable women to avail a sort of credit for the
period that they did not take off, a cash-in mechanism of sorts. Assuming a
woman only avails 24 out of the 26 weeks that are granted as maternity leave,
then she should be able to receive the two weeks of pay as an incentive to her
salary. This is also a great addition to the maternity benefits available as it
is a step in the direction of ensuring women's financial independence. In addition to this, women should be offered
work from home policies where there is no physical labour involved as this can
further ensure the safety and protection of the mother and the child she bears.
It also is a great way of reducing the workload of women. Another seemingly
major miss by way of the new Code is although it set out to provide benefits to
all sorts of workers including gig workers and workers in the unorganised
sector, the identity requirement makes this a major miss. Another important
fact regarding the applicability of the entire new Social Security Code is the
fact that the government seems to have overlooked the recommendation of the
Sixth Central Pay Commission[11].
The unorganized sector is extremely wide yet somehow under the purview of the
new Code, labourers from the agriculture sector, seasonal workers, domestic
workers and construction workers are left out of the ambit of the new Code. So
many women are engaged in agricultural activities and it is the backbone of the
country yet it appears counterproductive that the act does not cover women
engaged in such acts within the Code. With over 90% of the working women class
in the informal sector, only a few of them are even within the purview of the
Act.
While the Unorganised Workers’ Social Security
Act, 2008 includes maternity benefits as one of the entitlements for the
unorganised, no wage-linked scheme for such purpose has yet been notified by
the Government. The Janani Suraksha Yojana has been notified under this Act,
but the same is a mere incentive for institutional delivery and nothing more.
The Code even fails to universalise the ambit of payment of maternity benefits.
Until and unless maternity benefits are universalized by way of the appropriate
provision in the Code, a majority of women who work in the informal sector
would be excluded from its purview
Conclusion:
The Missing Pieces And Recommendations
While
there is much to celebrate with the implementation of the new Code, there are
also several drawbacks and loopholes. Firstly, The Code fails to universalise
the ambit of payment of maternity benefits. Until and unless maternity benefits
are universalized by way of the appropriate provision in the Code, a majority
of women who work in the informal sector would be excluded from its purview and
this defeats the very purpose of the implementation of the Code. There needs to
come in place a solid plan that provides for universal coverage of maternity
benefits. Agricultural workers must be included under the ambit of the
Maternity Benefit Act considering that they make up a considerable portion of
the entire workforce. Another interesting take on the act is that it fails to
make room for the possibility of paternity leave. Paternity leave can be a
great mechanism by which more men are encouraged to help out and be integrated
with the domestic life and may also help ease the burden on women. With several
companies and countries pushing for incorporating paternity leave, the new Code
could have made certain provisions to ensure a step in the right direction. The
Indian system is already highly male-centric and by providing paternity leave,
women may feel a sigh of relief and it might help in improving labour
standards. Clause 22 of the European Union (Directive of European Parliament,
2019) specifies the need for maternity, paternity and parental benefits in case
of a social security system opted by the establishments[12].
Additionally, appropriate provisions should be incorporated in the Code to
ensure six months of paid leave to every woman worker for childbirth. This is especially
the case with women employed in the unorganised sector.
The
respective payment should be done via the unorganised sector welfare board and
the government should ensure that there are strict mechanisms in place which
prevent misuse of funds allocated for maternity benefits and stringent
provisions should ensure that payment is made in a timely fashion.
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Article Information
Analyzing Maternity Benefits Under New Social Security Code (By- Vyshnavi Praveen & Ananya Soni)
Authors: Vyshnavi Praveen, Ananya Soni
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/08/12
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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