The expansion of capitalism translates into an unequal relationship between the employer and the employee, this power disparity also impacts the bargaining power of employees when it comes to safe and equal working conditions. This unequal distribution of power and wealth should be addressed, worker’s rights should be acknowledged and then only can we as a society come closer to achieving social justice. While the Constitution secures workers’ rights under Article 14, 15 (1), 15 (3), 16 (1), 16 (2) and Article 21, it should be mentioned that these rights are only enforceable against the state and cannot be enforced against private enterprises. Similarly, the Directive Principles of State Policy may be fundamental in nature but are not justiciable through courts of law and private enterprises are not obligated to adopt them in their functioning. This is precisely why labour policies are required so the rights of workers can be extended to those working in private enterprises.
Different labour policies have been formulated overtime, they address issues like payment of minimum wages, unfair labour practices, prevention of sexual harassment at workplace, protection from exploitative practices, improving safety and welfare of women at workplace and delineate on rules regarding vulnerable workers, pay, leave, hours of work, intervals of rest, etc. These policies apply to women workers too but they are not gender specific in their content and application. The Maternity Benefit (Amendment) Act 2017 increased the maternity leave from 12 weeks to 26 weeks which is well above the prescribed period stipulated in the ILO Convention No 183 (14 weeks).
It ought to be noted that according to Section 2 of the Act, mines, plantations, establishments and factories fall under the jurisdiction of the Act, hence extending benefits to women working only in the organised sector and protecting women who are employed in any capacity, hence including both contractual and consultant employees. The pre-condition attached to the applicability of the Act is that the woman must have worked in the establishment for at least 80 days in the past 12 months. The only exception to the applicability of the Act is establishments governed by Employees State Insurance Act 1948, to which provisions apart from the payment of maternity benefit do not apply.
Section 3 was amended and (ba) was inserted through which the Act defined ‘commissioning mother’ as the biological mother who contributes her egg to the creation of an embryo that is implanted in another woman[1]. Section 5 (3) was amended to increase the period of maternity leave from 12 weeks to 26 week.[2] In the principal Act under Section 5, subsection (4) and (5) have been added that provide for maternity benefits to commissioning and adopting mother and prescribe the provision for work from home after availing the maternity benefit in some cases. Section 11 A delineates on the provision of crèche facility in any establishment with 50 or more employees.[3]
The Maternity Benefit (Amendment) Act 2017 increased the maternity leave from the previous 12 weeks to the present 26 weeks for working women with less than two surviving children and in cases where a woman has more than two children, the leave is limited to 12 weeks only. The maternity leave can be availed 8 weeks before the expected date of delivery that was 6 weeks prior to the amendment. Among the key changes made to the Act are provisions for work from home for nursing mothers, mandatory provision for establishments having fifty or more employees to have a facility of crèche and recognition of 12 weeks of maternity benefit to the commissioning mother and the adopting mother from the date the child is handed over.
Where nature of work permits, there is also an enabling provision that imparts authority to the employer and the employee to negotiate ‘work from home’ after the expiry of 26 weeks leave period ‘on such conditions as the employer and the woman agree upon’. However, whether women actually get the autonomy to partake in negotiations with the employer remains a concern which brings into question the bargaining capacity of female employees in Indian workplaces. Lack of awareness on maternity benefits can act as an impediment to them rightfully asserting their rights at the workplace and in some cases where the female employees are either engaged as daily wagers or as independent contractors, the employer succeeds in misleading them into believing that they cannot accrue the benefits of the Maternity Benefit Act. In order to avoid such instances of depravity at the workplace, it is also held to be the onus of the employer to compulsorily educate women about maternity benefits available to them at the time of their appointment.
Parental leave and Paternity leave are not statutorily recognised in India. Even after paternity or parental leaves are statutorily recognised in India, organisations may find themselves, subconsciously or in some cases, even outrightly categorising the parents as primary or secondary caregivers in their HR policies which might adversely affect the leave uptake by fathers. The limitations of policy in the face of social norms can be observed in the case of Denmark where due to the prevalent wage gap, men are disincentivised to take up parental leave. The leave uptake by Danish fathers was at a staggering low of 31 days in 2015 compared to 297 days of leave taken by mothers.[4] This accounts for a mere 10% of the total parental leave afforded to parents against 30% of leave uptake by fathers in Sweden and Iceland.[5] This only furthers the gender pay gap situation.
Intra-household issues of care work are entrenched in gendered notions of power and hierarchy, which affects women in their personal as well as professional space. Women are more likely to downshift their career goals, settle for lesser rewarding opportunities in anticipation of family obligations.[6] This influences their freedom of choice and the capacity to capitalise on economic opportunities which in turn has a detrimental impact on their participation in powerful networks of trust and reciprocity in personal and community interactions at workplace and at home, hence affecting a woman’s entitlement to physical and social security.[7] Work-family life imbalance also affect the social capital determinants of men as their non-participation in parenthood activities negatively impacts their ability to contribute to familial needs, their self esteem and their emotional security.
Health is a public good which is characterised by non-rivalry (once one person secures it, other consumers can consume it at no additional cost) and non-excludability (a person cannot be prevented from using the good once it has been produced). Health as a merit good should be provided free of charge or at least be subsidised as consumption of such goods ought not to be dependent on the ability to pay. No female employee should be left out of the purview of the maternity entitlements as have been defined by the Act irrespective of the nature of the work performed by the employee.
- Maternity entitlements should be applicable to all female employees irrespective of the industries they work for or the nature of their work. The application of maternity benefits should be unconditional and the Labour Code should be amended accordingly.[8]
- The pre-condition as to the minimum period of employment with an establishment before accruing the maternity benefits should be removed as it will help female employees from the unorganised sector avail these benefits without having to face the disadvantage due to the irregularity in their employment.
- A tax based mechanism for delivery of maternity entitlements should be worked out so employers do not evade their responsibility towards advancing social justice and worker rights of female employees in the name of ‘increased burden on workplace resources’.
- Duration of crèche visits and nursing breaks should be defined and a provision for reasonable extension of the same should be made to meet demands of certain situations.
- Introduction of a gender agnostic policy of individual rather than family based entitlement that could provide compulsory period of parental leave for both the genders.
- ‘Equal work for Equal Pay’ should be effectively implemented so male partners do not hesitate to take up their share of parental leave.
Legal provisions encouraging men to take leave will ensure uniform reform across sectors and also help in acknowledging men’s role as care givers, women’s role as breadwinners and achieve greater social acceptance for work-life balance for both genders. Besides aiding entry to labour market for mothers and gender neutralising labour market access, uptake of leave by fathers through government promotion of shared carework would also lead to maternal benefits (reducing post-partum health complications- both mental and physical), positive impact on work-life balance for both partners, reconciliation of work and family responsibilities and also effect demographic outcomes as fathers taking parental responsibility affects a woman’s choice of having kids. When fathers assume parenthood responsiblities, leave flexibility is taken to be imperative to child care in general rather than being a ‘mother’s issue’.
Shreya Devgan is a law student at Symbiosis Law School, Pune.
[1]Maternity Benefit (Amendment) Act 2017.
[2] Section 5 Maternity Benefit (Amendment) Act 2017.
[3] Section 11 Maternity Benefit (Amendment) Act 2017.
[4] Maternity, Paternity and Parental Leave: Data related to duration and compensation rates in the European Union, Directorate General for Internal Policies, European Parliament, 2015.
[5] Mark Preisler, Danish opposition to EU rules on daddy leave, Nordic Labour Journal, March 06, 2019.
[6] Indian women are more likely to quit jobs mid career due to ‘double burden’, The Economic Times, July 11 2016.
[7]Claridge, T., 2004. Social Capital and Natural Resource Management: An Important role for social capital? Unpublished Thesis, University of Queensland, Brisbane, Australia.
[8] Divya Varma, Kavya Bharadkar & Raghav Mehrotra, India’s new labour codes fail migrant workers whose vulnerability was highlighted by lockdown crisis, Scroll India, 27th September 2020.
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