Dear All, I want to understand that , when a female staff on Contract goes on Maternity leave, does her employer ( Contractor) suppose to pay her the Benefits under the Maternity Benefit Act, 1961? If yes then which section ?
Can the Principal employer refute to pay for the benefits (Salary) of the Contract employee deployed to work under him?
Thanks
Dinesh Sudhakar Jadhav
From India, Ulhasnagar
2Can the Principal employer refute to pay for the benefits (Salary) of the Contract employee deployed to work under him?
Thanks
Dinesh Sudhakar Jadhav
From India, Ulhasnagar
Hi Dinesh,
It's categorically stated that benefits of maternity leave with full salary cannot be denied to a female employee appointed on contractual basis and they are entitled to maternity leave as per provision of Section 5 of the maternity benefit Act,
Pl.see the relevant provisions -
3. Definitions. --
In this Act, unless the context otherwise requires, XXXXX
......(d) “employer” means –
(i)
in relation to an establishment which is under the control of the Government, a
person or authority appointed by the Government for the supervision and
control of employees or where no person or authority is so appointed, the
head of the department;
(ii)
in relation to an establishment which is under any local authority, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority;
(iii)
in any other case, the person who are the authority which has the ultimate control over the affairs of the establishment and where the said affairs are
entrusted to any other person whether called a manager, managing director, managing agent, or by any other name, such person;
XXXXX
(o) “woman” means a woman employed, whether directly or through any agency, for
wages in any establishment.
XXX
5. Right to payment of maternity benefit. --
(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks XXimmediately following that day.
Explanation. –
For the purpose of this sub-section, the average daily wage means the
average of the woman’s wages payable to her for the days on which she has worked
during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, or one rupee a day, whichever is higher.
(2) No woman shall be entitled to maternity benefit unless she has actually worked in an
establishment of the employer from whom she claims maternity benefit for a period of not less than one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery: XXXXX
From India, Bangalore
It's categorically stated that benefits of maternity leave with full salary cannot be denied to a female employee appointed on contractual basis and they are entitled to maternity leave as per provision of Section 5 of the maternity benefit Act,
Pl.see the relevant provisions -
3. Definitions. --
In this Act, unless the context otherwise requires, XXXXX
......(d) “employer” means –
(i)
in relation to an establishment which is under the control of the Government, a
person or authority appointed by the Government for the supervision and
control of employees or where no person or authority is so appointed, the
head of the department;
(ii)
in relation to an establishment which is under any local authority, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority;
(iii)
in any other case, the person who are the authority which has the ultimate control over the affairs of the establishment and where the said affairs are
entrusted to any other person whether called a manager, managing director, managing agent, or by any other name, such person;
XXXXX
(o) “woman” means a woman employed, whether directly or through any agency, for
wages in any establishment.
XXX
5. Right to payment of maternity benefit. --
(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks XXimmediately following that day.
Explanation. –
For the purpose of this sub-section, the average daily wage means the
average of the woman’s wages payable to her for the days on which she has worked
during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, or one rupee a day, whichever is higher.
(2) No woman shall be entitled to maternity benefit unless she has actually worked in an
establishment of the employer from whom she claims maternity benefit for a period of not less than one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery: XXXXX
From India, Bangalore
Dear Sir,
Thank you for the detailed explanation. I would like to understand one simple concept. Suppose, X is a contract worker who is deputed at Y ( Principal Employer) location. X goes on Maternity Leave for 6 months, who will bear the maternity cost? The employer of X or the Principal Employer Y.
Warm Regards,
Dinesh Sudhakar Jadhav
From India, Ulhasnagar
Thank you for the detailed explanation. I would like to understand one simple concept. Suppose, X is a contract worker who is deputed at Y ( Principal Employer) location. X goes on Maternity Leave for 6 months, who will bear the maternity cost? The employer of X or the Principal Employer Y.
Warm Regards,
Dinesh Sudhakar Jadhav
From India, Ulhasnagar
See the beauty of the Acts passed in the fiftees and sixtees. Had the word "through any agency" not been there, the new gen employers who feel that engaging employees through a contractor or manpower outsourcing is the final word for doing business peacefully would have utilised it for their business benefits. True, there are a lot of employers who deny it. But the intention of passing the Maternity Benefits Act was not to discriminate employees by denying the benefits to those who are not under the direct rolls but to see that all who work for the employer should be treated equally.
From India, Kannur
From India, Kannur
Dear Dinesh,
The payment under maternity benefit to be borne by the employer (pay master). In this case the Contractor is the employer and has to provide the benefit.
The payment by the Principal Employer does not exist but shall make payment by the direction of the authority when contractor fails to oblige.
From India, Mumbai
The payment under maternity benefit to be borne by the employer (pay master). In this case the Contractor is the employer and has to provide the benefit.
The payment by the Principal Employer does not exist but shall make payment by the direction of the authority when contractor fails to oblige.
From India, Mumbai
Dear all, if the contractor is paying salary for the Maternity leave period to the Contractual Employee then can he claim the same paid amount from the principal employer in the monthly bills under the ongoing contract?
From India, Gurgaon
From India, Gurgaon
Dear Hitesh,
In general the principal employer may not consider the amount paid towards any welfare measures as per CL(R&A) Act in force.
Because the WO is being issued by the Principal Employer with the clause, that the contractor would abide by the all the rules and acts that are in force & prevailing at this time. The principal employer would only consider any new laws & act brought by the appropriate Government here in after, the MB Act is not an new law that has been imposed after awarded of the Work Order.
From India, Mumbai
In general the principal employer may not consider the amount paid towards any welfare measures as per CL(R&A) Act in force.
Because the WO is being issued by the Principal Employer with the clause, that the contractor would abide by the all the rules and acts that are in force & prevailing at this time. The principal employer would only consider any new laws & act brought by the appropriate Government here in after, the MB Act is not an new law that has been imposed after awarded of the Work Order.
From India, Mumbai
The contractor is also an employer and in respect of the employees hired by him, he is the employer who has to take care of the employee benefits and welfare. therefore, allowing 26 weeks' leave on account of maternity and paying maternity bonus etc are to be done exclusively by the contractor. At the same time, contract is for deploying a required number of persons on a daily basis. If X is on leave, the contractor is expected to send another person, Y, to the plant/ site. For the Principal employer it does not matter who is doing the work but what is important is whether work is being done by the employee (s) of the contractor.
The above being the legal side, in respect of some contracts, wherein the contractor is asked to deploy persons with special skills or persons identified by him, then the contractor will be sourcing persons with such special skill or persons suggested by the Principal employer, as the case may be, exclusively for the Principal employer, and if that employee has to undergo long leave with pay, say maternity leave, then the employer will have to bear the cost of retaining the person.
In either case, if the employee is covered by ESI, the ESIC will take care of her leave and benefits. Ultimately, the contributions paid by the contractor towards ESI is a cost to the Principal employer only because it will be the total cost including the wages, contributions towards PF, ESI etc and other benefits like Bonus by way of deploying employees that will be agreed to be paid to the contractor. As such, whenever the contractor is asked to deploy a woman employee on a salary above the ESI limit, he should factor the maternity benefits payable in the cost of deployment, or should reach an agreement as to treatment of maternity period with the principal employer.
From India, Kannur
The above being the legal side, in respect of some contracts, wherein the contractor is asked to deploy persons with special skills or persons identified by him, then the contractor will be sourcing persons with such special skill or persons suggested by the Principal employer, as the case may be, exclusively for the Principal employer, and if that employee has to undergo long leave with pay, say maternity leave, then the employer will have to bear the cost of retaining the person.
In either case, if the employee is covered by ESI, the ESIC will take care of her leave and benefits. Ultimately, the contributions paid by the contractor towards ESI is a cost to the Principal employer only because it will be the total cost including the wages, contributions towards PF, ESI etc and other benefits like Bonus by way of deploying employees that will be agreed to be paid to the contractor. As such, whenever the contractor is asked to deploy a woman employee on a salary above the ESI limit, he should factor the maternity benefits payable in the cost of deployment, or should reach an agreement as to treatment of maternity period with the principal employer.
From India, Kannur
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Creche under Maternity Benefit Act.pdf
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