Empowerment of women in employment – Equal Remuneration, Maternity Benefits, Leave & Crèche Facilities

Posted On March 31, 2022

Written By: 
Vasudevan V.
Head, Labour Advisory Cell, EFI
General Counsel & ICC Member for Smollan-HUL JV, Certified Corporate Governance Professional & Member of Core Advocacy Committee – Retailers’ Association of India (RAI)

The Periodical Labour Force Survey 2019-20 reflects that the 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, retail sector and in other occupations. It is note-worthy that a major ratio of these occupations function on contracts.

The Constitution of India has accorded certain special provisions for women empowerment and, inter alia, the following, are the highlights

• The state shall not discriminate against any citizen of India on the ground of sex [Article 15(1)].
• The state is empowered to make any special provision for women. In other words, this provision enables the state to make affirmative discrimination in favour of women [Article 15(3)].
• The state to secure for men and women equally the right to an adequate means of livelihood [Article 39(a)].
• The state to secure equal pay for equal work for both Indian men and women [Article 39(d)].
• The state is required to ensure that the health and strength of women workers are not abused and that they are not forced by economic necessity to enter avocations unsuited to their strength [Article 39(e)].
• The state shall make provision for securing just and humane conditions of work and maternity relief [Article 42].
• It shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women [Article 51-A (e)] .
  
  
• Equal Remuneration Act  

Equal Remuneration Act, 1976 provides for the payment of equal remuneration to men and women workers and for the prevention of discrimination, on the ground of sex, against women in the matter of employment and for matters connected therewith or incidental thereto.

• Section 3 of the Act provides that the provisions of the Act shall have effect notwithstanding anything inconsistent contained in any other law or in the terms of any award, agreement or contract of services, whether made before or after the commencement of the Act, or in any instrument having effect under any law for the time being in force.
• Definition of Remuneration – Remuneration means the basic wage or salary and any additional emoluments whatsoever payable, either in cash or in kind, to a person employed in respect of employment or work done in such employment, if the terms of the contract of employment, express or implied, were fulfilled. Same work or Work of a similar nature
•  Same work or Work of a similar nature means work in respect of which the skill, efforts and responsibilities required are the same, when performed under similar working conditions, by a man or a woman and the differences, if any, between the skill, effort and responsibility required of a man and those required of a woman are not of practical importance in relation to the terms and conditions of employment
• Section 5 – Employer while making recruitment for the same work or work of a similar nature, or in any condition of service subsequent to recruitment such as promotions, training or transfer, shall not make any discrimination against women except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force. However above mentioned section shall not affect any priority or reservation for scheduled caste or scheduled tribes, ex-servicemen, retrenched employees or any other class or category of persons in the matter of recruitment to the posts in an establishment or employment.             
  
  

Supreme Court’s assertion in LIC Case (Ms Meera Mathur vs. LIC 1991)

 A women employee on probation was discharged without assigning any reason and on contest before the Court, it was contended by LIC that (i) the employee had withheld the fact of her pregnancy in the declaration form during medical fitness process and (ii) non-satisfactory performance as reasons.  The reason for termination was only the declaration given by her at the stage of entering the service, though the petitioner was medically examined by the lady doctor and found her medically fit to join the post. The SC, inter alia, observed that the real mischief though unintended is the nature of the declaration required from a lady candidate specially the particulars required to be furnished which are indeed embarrassing if not humiliating. Observing further that the modesty and self- respect may perhaps preclude the disclosure of such personal problems, the SC directed the LIC to reinstate the aggrieved woman.   

• Maternity Benefits Act

The Maternity Benefits Act, provides the following benefits for the women employees

(i) Leave With Pay

•  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 is has 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 maximum of 1 month

(ii) Protection from Dismissal 

• 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. 

(iii) ESIC Act & Maternity Benefits

The Employees’ State Insurance Corporation 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 Rs. 21,000/-) at any point of time,  then the Maternity Benefit Act applies to her during such period.  

How Effective Are the Maternity Benefits Available To Women!

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.

(C) Contract /Fixed Term employment

Certain organizations continue tend to avoid recruiting women, or pre-screen the incumbents to avoid employing women who they perceive might decide to become mothers. All too often, women on contract, or engaged 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, resignation or -termination of the contract, mid–way through their pregnancy. Also        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. A 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 (6-½ months).  Consequently, any duration of maternity leave will either subsume over half a tenure of 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 the beneficiary woman to be in the active payroll of the employer.

However, the Courts have viewed such anomalies from the perspective of the welfare legislations. Such practice is neither legal, nor ethical and in many instances, several High Courts have directed reinstatement of employment or application of maternity benefit. The case of National Highways Authority of India vs National Commission for Women, among others is a classic demonstrative ruling.

(4) Crèche Facility 

The Maternity Benefits Act, by an amendment effected in 2017 (with effect from 1.4.2017), has also mandated providing crèche facilities by every establishment, having 50 or more employees.   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 difficult.  The Ministry of Women & Child Development has established a comprehensive Scheme for provision Crèche Facility and the details of the same are available on their website.

Impact of Labour Codes

The Equal Remuneration Act shall be repealed on the effective date of implementation of the Wage Code, and this Code affords a wider protection to woman. In fact this Code prohibits discrimination on ground of gender. Thus no employer can reduce the wages of any employee and make any discrimination on the ground of sex while recruiting any employee for the same work or work of similar nature and in the conditions of employment, except where the employment of women in such work is prohibited or restricted by or under any law, for the time being in force.

The organizations across industry have well established policies for diversity and inclusion and has extended extensive welfare measures to women employees. Needless to emphasize that, as a corporate governance principle, the employers must evolve to provide fair opportunities for the women in all kinds of employment, without discrimination and afford a level playing ground to the women in all spheres.