Subject - Re: bonus for maternity leave
dear... when a meternity emplooyee covered under ESI Act, 1948, she doesnot covered under Bonus Act. she get benefits under ESIC only. so that she not eligible for take bonus.
Junior Officer - HR & Admn.
IVRCL Infrastructure & Projects Ltd.
From India, Calcutta
dear... when a meternity emplooyee covered under ESI Act, 1948, she doesnot covered under Bonus Act. she get benefits under ESIC only. so that she not eligible for take bonus.
Junior Officer - HR & Admn.
IVRCL Infrastructure & Projects Ltd.
From India, Calcutta
Dear Laxminarayana,
Employees are not covered under ESI, it is the Establishment that is covered under the ESI. By covering under ESI, the provisions of the Payment of Bonus Act are not diluted. Employee continue to be in employment of the establishment. The payment of salary is paid by the ESIC on behalf of the Employer as per the scheme of the ESI Act. Had there been no ESI, employer would had borne the salary. It so even if salary is paid by ESI during the leave period.
So Bonus is payable.
From India, Chandigarh
51Employees are not covered under ESI, it is the Establishment that is covered under the ESI. By covering under ESI, the provisions of the Payment of Bonus Act are not diluted. Employee continue to be in employment of the establishment. The payment of salary is paid by the ESIC on behalf of the Employer as per the scheme of the ESI Act. Had there been no ESI, employer would had borne the salary. It so even if salary is paid by ESI during the leave period.
So Bonus is payable.
From India, Chandigarh
Dear Ramesh,
The following matters arise in this case according to me.
EMPLOYEE COVERED UNDER ESIC
The employee has availed Maternity Benefit from ESIC for 3 months whereas she was absent for a period of 4 months.
ESIC pays twice the standard benefit rate for Maternity benefit. In this case the payment has been made for 3 months.
While on Maternity leave the employee continues to be on your rolls but earns wages through ESIC for which the employer makes contribution. Hence, ESIC pays the employee on behalf of the employer.
EMPLOYEE COVERED UNDER MATERNITY BENEFIT ACT
What happens if the employee draws a wage above the ESI ceiling?
She is covered under the Maternity Benefit Act.
The employer pays wages as per the Maternity benefit act and computes bonus for the wages so paid.
But if the employee avails leave more than her entitlement then the leave availed by her in excess of her entitlement is treated as LOP. In such a case the employee will receive bonus only for the period she is entitled for leave and wages.
Comparing these two situations (covered under ESI and covered under Maternity benefit) we can infer that in the case referred by you the employee will be eligible for bonus proportionate to the wages paid by ESI (she does not earn wages from the employer during the period). For the period she does not earn wages (4 months - 3 months paid by ESI = 1 month) she will not earn bonus.
Eventually she will be entitled for bonus for 8 months she served and 3 months she received benefits from ESI and will not be entitled for 1 months wherein she was not paid any amount by ESI.
From India, Madras
The following matters arise in this case according to me.
EMPLOYEE COVERED UNDER ESIC
The employee has availed Maternity Benefit from ESIC for 3 months whereas she was absent for a period of 4 months.
ESIC pays twice the standard benefit rate for Maternity benefit. In this case the payment has been made for 3 months.
While on Maternity leave the employee continues to be on your rolls but earns wages through ESIC for which the employer makes contribution. Hence, ESIC pays the employee on behalf of the employer.
EMPLOYEE COVERED UNDER MATERNITY BENEFIT ACT
What happens if the employee draws a wage above the ESI ceiling?
She is covered under the Maternity Benefit Act.
The employer pays wages as per the Maternity benefit act and computes bonus for the wages so paid.
But if the employee avails leave more than her entitlement then the leave availed by her in excess of her entitlement is treated as LOP. In such a case the employee will receive bonus only for the period she is entitled for leave and wages.
Comparing these two situations (covered under ESI and covered under Maternity benefit) we can infer that in the case referred by you the employee will be eligible for bonus proportionate to the wages paid by ESI (she does not earn wages from the employer during the period). For the period she does not earn wages (4 months - 3 months paid by ESI = 1 month) she will not earn bonus.
Eventually she will be entitled for bonus for 8 months she served and 3 months she received benefits from ESI and will not be entitled for 1 months wherein she was not paid any amount by ESI.
From India, Madras
There are several members whose answer is in affirmative and sever other whose anser iss in negative. But the question still remains to be unanswered is: “whether the 'maternity benefit' paid to an employee under the ESI scheme can be treated as ‘wages’ under the Payment of Bonus Act, 1965? My views are still the same that the ‘maternity benefit’ does not fall within the meaning of ‘wages’ as per the definition of ‘salary or wages’ given under the Payment of Bonus Act, 1965. Since the bonus is to be paid on the earned ‘wage’ of an employee, therefore, I am of the firm opinion that the employer is not bound to pay bonus to an employee who gets ‘maternity benefit' under the ESI Scheme. For payment of bonus, you have to calculate his ‘wages’ earned during each month. Those who are really serving as Manager (P&A), know how to calculate wage for which bonus is to be paid. However, I feel that the employees who get ‘maternity benefit’ under the Payment Maternity Benefit Act, 1960 would certainly be covered under the provisions of the Payment of Bonus Act, 1965.
Best wishes,
jpratap
From India, Chandigarh
Best wishes,
jpratap
From India, Chandigarh
Dear friend
The mere payment of any benefit, does not exclude the eligibility for receiving statutory bonus. The fact that this has been taken over by ESIC, instead of the company, is in itself a big relief for the company.
Using this plea to debar/deny the employee bonus, does it appear correct ??
Tomorrow if the company wants, the mere fact that salary has been paid by ESIC; and not b the company; amount to a break in service ??
One has to examine an issue from various angles and context to arrive at a proper conclusion; a task which ultimately is performed well by our Courts. But do we need a Court ruling or Case laws on EVERY issue ??
Let us ponder over these questions, in a manner without any prejudice to the interest of the employees.
Warm regards.
From India, Delhi
The mere payment of any benefit, does not exclude the eligibility for receiving statutory bonus. The fact that this has been taken over by ESIC, instead of the company, is in itself a big relief for the company.
Using this plea to debar/deny the employee bonus, does it appear correct ??
Tomorrow if the company wants, the mere fact that salary has been paid by ESIC; and not b the company; amount to a break in service ??
One has to examine an issue from various angles and context to arrive at a proper conclusion; a task which ultimately is performed well by our Courts. But do we need a Court ruling or Case laws on EVERY issue ??
Let us ponder over these questions, in a manner without any prejudice to the interest of the employees.
Warm regards.
From India, Delhi
Dear
Sec 14 (d) of the Bonus Act is clear
14. Computation of number of working days.- For the purposes of section 13, an employee shall be deemed to have worked in an establishment in any accounting year also on the days on which--
(a) he has been laid off under an agreement or as permitted by standing orders under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946 ), or under the Industrial Disputes Act, 1947 (14 of 1947 ) or under any other law applicable to the establishment;
(b) he has been on leave with salary or wage;
(c) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
(d) the employee has been on maternity leave with salary or wage, during the accounting year.
It is to be seen that the entitlement to women is in tune with the United Nations' Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), 1979.
Also Articles 14 and 15 of the Constitution guarantee equality, Article 15(3) enables the State to make special provision for women. The Maternity Benefit Act & Bonus Act provision Sec 14 (d) makes provisions that are are in furtherance of two objectives- affirmative action (Sections 4, 5 and 27) and non-discrimination (Sections 12, 21 and 23). Their universality is undeniable which HR Managers need to note.
The Thumb rule in interpreting beneficial legislation is to interpret it in favour of the employee and if the employees are women then give them the benefit without any doubt.
With Regards
Advocates & Notaries & Legal Consultants[HR]
E-mail : rajanassociates@eth,net,
Mobile : 9025792684.
From India, Bangalore
Sec 14 (d) of the Bonus Act is clear
14. Computation of number of working days.- For the purposes of section 13, an employee shall be deemed to have worked in an establishment in any accounting year also on the days on which--
(a) he has been laid off under an agreement or as permitted by standing orders under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946 ), or under the Industrial Disputes Act, 1947 (14 of 1947 ) or under any other law applicable to the establishment;
(b) he has been on leave with salary or wage;
(c) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
(d) the employee has been on maternity leave with salary or wage, during the accounting year.
It is to be seen that the entitlement to women is in tune with the United Nations' Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), 1979.
Also Articles 14 and 15 of the Constitution guarantee equality, Article 15(3) enables the State to make special provision for women. The Maternity Benefit Act & Bonus Act provision Sec 14 (d) makes provisions that are are in furtherance of two objectives- affirmative action (Sections 4, 5 and 27) and non-discrimination (Sections 12, 21 and 23). Their universality is undeniable which HR Managers need to note.
The Thumb rule in interpreting beneficial legislation is to interpret it in favour of the employee and if the employees are women then give them the benefit without any doubt.
With Regards
Advocates & Notaries & Legal Consultants[HR]
E-mail : rajanassociates@eth,net,
Mobile : 9025792684.
From India, Bangalore
Dear All
While making the Maternity Benefit under the ESI Act, the ESI Corporation will obtain Form 28-A wherein it will be clearly declared that the woman in question did not got the wages from his employer during the period of her maternity leave and she is entitled for the 84 days of Maternity benefit from the Corporation. Basing on this declaration the Corporation will make the payment. It is clear from the above that she had not worked and drawn any wages during the period of her maternity leave, and once she had not drawn any wages from her employer, the question of payment of Bonus during the period of maternity benefit drawn from the corporation does not arise. Hence Bonus is not payable on the ESI MATERNITY BENEFIT AMOUNT drawn by the woman worker.
regards
sanagapalli
From India, Hyderabad
While making the Maternity Benefit under the ESI Act, the ESI Corporation will obtain Form 28-A wherein it will be clearly declared that the woman in question did not got the wages from his employer during the period of her maternity leave and she is entitled for the 84 days of Maternity benefit from the Corporation. Basing on this declaration the Corporation will make the payment. It is clear from the above that she had not worked and drawn any wages during the period of her maternity leave, and once she had not drawn any wages from her employer, the question of payment of Bonus during the period of maternity benefit drawn from the corporation does not arise. Hence Bonus is not payable on the ESI MATERNITY BENEFIT AMOUNT drawn by the woman worker.
regards
sanagapalli
From India, Hyderabad
I fully agree with above. Personnel deptt always calculate wages drawn by an employee during the year on which the %age of bonus is payable. Hence, I also conclude that neither the Act allows maternity benefit the period when ESI pays the same. However, situation is different when the employee does not get such a benefit even though she is covered under the ESI Act. This situation is explained in Section 5A & 5B of the Maternity Benefit Act, 1961 which reads as under:-
5A. Continuance of payment of maternity benefit in certain cases
5A. Every woman entitled to the payment of maternity benefit under this Act shall notwithstanding the application of the Employees' State Insurance Act 1948 (34 of 1948) to the factory or other establishment in which she is employed continue to be so entitled until she becomes qualified to claim maternity benefit under section 50 of that Act.
5B. Payment of maternity benefit in certain cases
Every woman -
(a) who is employed in a factory or other establishment to which the provisions of the Employee's State Insurance Act 1948 (34 of 1948) apply;
(b) whose wages (excluding remuneration for over-time work) for a month exceed the amount specified in sub-clause (b) of clause (9) of section 2 of that Act; and
(c) who fulfils the conditions specified in sub-section (2) of section 5 shall be entitled to the payment of maternity benefit under this Act.
From India, Chandigarh
5A. Continuance of payment of maternity benefit in certain cases
5A. Every woman entitled to the payment of maternity benefit under this Act shall notwithstanding the application of the Employees' State Insurance Act 1948 (34 of 1948) to the factory or other establishment in which she is employed continue to be so entitled until she becomes qualified to claim maternity benefit under section 50 of that Act.
5B. Payment of maternity benefit in certain cases
Every woman -
(a) who is employed in a factory or other establishment to which the provisions of the Employee's State Insurance Act 1948 (34 of 1948) apply;
(b) whose wages (excluding remuneration for over-time work) for a month exceed the amount specified in sub-clause (b) of clause (9) of section 2 of that Act; and
(c) who fulfils the conditions specified in sub-section (2) of section 5 shall be entitled to the payment of maternity benefit under this Act.
From India, Chandigarh
Dear sir/mam,
My wife is working in a private company in gurgaon.
She is pregnant and her expected date of delievery is 24th oct. 2014 .
The company where is employed has more than 10 employees and should fall under providing maternity benefits to her according to indian laws.
However, The company is denying to provide any maternity benefits to her . My wife joined the company on 5th aug 2013 . Her in hand salary is Rs. 36000 per month.
I would like to know whether private companies can make their own rules and laws and not provide maternity benefits on their own discretion . If not, than pls suggest a way forward for to get maternity benefits .
Looking forward for your reply .
Thank you
From India, Gurgaon
My wife is working in a private company in gurgaon.
She is pregnant and her expected date of delievery is 24th oct. 2014 .
The company where is employed has more than 10 employees and should fall under providing maternity benefits to her according to indian laws.
However, The company is denying to provide any maternity benefits to her . My wife joined the company on 5th aug 2013 . Her in hand salary is Rs. 36000 per month.
I would like to know whether private companies can make their own rules and laws and not provide maternity benefits on their own discretion . If not, than pls suggest a way forward for to get maternity benefits .
Looking forward for your reply .
Thank you
From India, Gurgaon
It appears from the views of some of the members that private company can indeed DISPENSE WITH JUSTICE.
They will contravene any welfare act and deny any benefit to the employees.
Some HRs are adept at such things and saving money for their employers.
What if they deny your wife any maternity leave benefits ??
How many people would go to court to fight for justice ???
This is what some rogue HRs know and serve their masters accordingly.
Quite unfortunate though.
Warm regards.
From India, Delhi
They will contravene any welfare act and deny any benefit to the employees.
Some HRs are adept at such things and saving money for their employers.
What if they deny your wife any maternity leave benefits ??
How many people would go to court to fight for justice ???
This is what some rogue HRs know and serve their masters accordingly.
Quite unfortunate though.
Warm regards.
From India, Delhi
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