Introduction
Unorganised Sector has been, in entirety, defined in “Report on Conditions of Work and Promotion of Livelihoods in the Unorganised Sector, September 2007”[1] by the National Commission for Enterprises in the Unorganised Sector (NCEUS) as, “the unorganised sector consists of all unincorporated private enterprises owned by individuals or households engaged in the sale and production of goods and services operated on a proprietary or partnership basis and with less than ten total workers”.
Generally, the terms “unorganised sector” and “informal sector” are used interchangeably.
There has been the absence of reliable statistics on the size, distribution or contribution to the economy, the unorganized sector has always remained a poorly understood and grossly neglected area. According to the report of the Economic Survey released in 2019, the unorganized sector accounts for 93% of the total workforce of the country.[2]
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% towards the Gross National Product (GNP)[3].
It is a well-known fact that the unorganized sector has a big hand in running the country’s economy, yet there has not been concrete provision to protect it from time immemorial and yet, such a large workforce lacks clear legal protections.
In pursuance of the necessity, the legislation came up with the Social Security Code with an objective of consolidating all social security laws (which are already implemented) with a view to providing social security to all employees and workers, either in organised or unorganised sectors, gig workers and platform workers.
The research aims to analyse the provisions and rules of maternity benefits as guaranteed under the Social Security Code, 2020 in India.
Need Due to the Disruption
The necessity to protect the maternity rights of female workers was recognised by the legislation a long time back. The laws related to maternity benefits have been introduced with the aim to regulate the employment of women at certain periods (before and after childbirth).
It was first introduced in 1961; the Maternity Benefit Act, 1961. The objective of the Act was: “to regulate the employment of women in certain establishments for certain periods before and after child-birth and to provide for maternity benefit and certain other benefits.”
Stand of Protection of Maternity Benefits recognised in International Customary Law and Convention
Article 23 of the Universal Declaration of Human Rights, 1948[4] states that
- “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
- Everyone, without any discrimination, has the right to equal pay for equal work.
- Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
- Everyone has the right to form and to join trade unions for the protection of his interests.”
The said customary law indirectly infers the necessity of providing such benefits and thereto protecting them further.
On the Global front, the standardised regulations regarding maternity benefits have been established under the Maternity Protection Convention, 2000 (No. 183) after the replacement of its first Maternity Protection Convention in 1919 (No. 3) and Maternity Protection at the Workplace, 1952 (No. 103) and also the adoption of Maternity Protection Recommendation, 2000 (No. 191). Also, during the 92nd International Labour Conference in 2004, International Labour Organisation member states adopted resolutions relevant to extending maternity protection access and promoting work-life balance in its entirety. India is a founding member of ILO.
Stand under the Constitution of India
Article 42 of the Constitution of India contains the directive that the State shall make provision for securing just and humane conditions of work and maternity benefits.
Furthermore, on comparative lines, in order to regulate the employment of women in certain establishments for specific periods before and after childbirth and to accommodate for maternity benefits and certain other benefits, the Indian Parliament enacted the Maternity Benefit Act, 1961. The Maternity Benefit Act, 1961 was enacted keeping in view not only all those legislations related to maternity that existed from the pre-Constitution days, but also ILO’s mandate regarding maternity protection (ILO Maternity Protection Convention, 1952- No. 103).
Is Objective getting Fulfilled?
The Code on Social Security, 2020 has been passed by both Houses and has already received Presidential assent on September 28, 2020, but it is yet to be implemented.
As we have known, the main objective of the introduction of the Social Security Code, 2020 was to consolidate laws to all employees, but the major question which arises is whether the maternity interests of the female workers are getting protected or not.
Hence, for the same let’s analyse the provisions of the Code related to Maternity Benefits.
Chapter VI of the Code 2020 recognises the aspect of Maternity Benefits.
The Code has been proposed with an intention to subsume a few of the Central Labour Law Acts under the garb of ‘simplifying and rationalising’ the said provisions.
The very well intention behind the consolidation of laws into the self-contained and exhaustive Code on Social Security is extending the ambit and expansion of welfare to the workers fraternity.
But when examining the provisions set under the Code related to maternity benefits set out under Chapter VI of the Code, the intention cannot be wholly covered.
Maternity Benefits- Not mere a Legal Responsibility but a Social Responsibility
Providing maternity benefits to every woman worker is the paramount social responsibility of the government and the employer. But it is quite evident in India that the generous maternity benefits grant benefits to just 1% of the women workers as a whole. Ensuring maternity benefits is a universal cry. This is essential to ensure the upliftment and empowerment of women and gender equality. The 98th International Labour Conference held in June 2009 even acknowledged that the strengthening of maternity protection is the key to gender equality at workplace, whilst keeping in mind the application of ILO Convention on Maternity Protection (No. 183) which promotes and gives utmost priority to equality of all women in the workforce and the health and safety of the mother and child.
The Missing Aspects: Analysis of Chapter VI of the Code and in furtherance Recommendations
The government seems to have overlooked the recommendation of the Sixth Central Pay Commission[5] and has left out a majority of the workforce that works in the unorganized sector; including labourers from the agriculture sector, seasonal workers, domestic workers or construction workers.
With over 90% of working women class in the informal sector, only few of them are even within the purview of the Act. While the Unorganised Workers’ Social Security Act, passed in 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 only entitlement currently available for all women is specified under the National Food Security Act, which promises a benefit of drawing Rs. 6,000 to all pregnant and lactating women. In the Code, there is no such mentioning of the sufferings of the informal sector women faces due to an implicit high workload, resulting in an increase of cases of illness and chances of miscarriage.
The Code even fails to universalise the ambit of payment of maternity benefit. 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. Hence, it is recommended that requisite amendments should be made to give universal coverage of maternity benefits to all women workers including those working in the unorganised/informal sector.
Payment of maternity benefits to every woman worker should be ensured. The existing Maternity Benefit Act is quite a generous one. This may be amended to incorporate all the women workers including the agricultural workers. But subsuming the Act in the Code, the Code does not spell out anything clearly. The Code should incorporate infrastructure, institutional mechanism and budgetary allocation to ensure the fulfilment of social commitment.
The Code also seems to miss out the opportunity to introduce paternity leave and possibly a chance to spread the message that the responsibility of running a family should be of both the parents.
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.[6]
Countries such as the United Kingdom, Singapore, Sweden and Australia have realised the need of the hour and thereby introduced various other categories of leaves relating to childbirth, like parental leave, family leave etc. in order to provide the leave benefits to both parents, and thereby helping them to have a balance between their careers and personal life and also ensuring that the child’s proper care and attention from both the parents in his/her initial years of development. Although the steps taken by the government are commendable, the government has missed out this opportunity to catch up with such requirements. Hence, under Clause 60 of the Code, it is recommended that paternity leave as per the guidelines should also be included in the provision.
Appropriate provisions should be incorporated in the Code to ensure six months paid leave to every woman worker for childbirth. For the women of the unorganised sector where there are multiple employers; the government, central or state, as the case may be, should make payments equal to such wage rate in the respective industry through the unorganised sector welfare board. And in States, where there are no boards, the payment should be made through the Ministry of Labour.
In most of countries, the cost related to providing such benefits is entirely borne by the government and/or shared by both government and employer as per the social security schemes provided. But it is not the case in India, where the wages during the maternity leaves are borne by the employer only (with a mere exception under the ESI Act). There is also a requirement of having a crèche facility, etc., which would, in turn, require employers to establish adequate infrastructure thus prompting more inquiries and more expenses. Hence, there is need of an explicit provision citing the regulations regarding the bearer of such expenses, shared by both government and employer. Or explicitly mention the allowance of shared crèche with other establishments, where maintaining a separate crèche would not be practicable or economically feasible for the employer.
The Code under Clause 59 (3) does prohibit “work of arduous nature” done by any woman during the prescribed period before the date of expected delivery. But the same has not been defined, as to what is considered under the ambit of “work of arduous nature”.
Hence, there is a need for a specific and unambiguous definition of “work of arduous nature” in order to establish “arduousness” so that employers can be held accountable for risk work as women workers especially in the informal sector are often engaged in hazardous and risky forms of work and also in order to ensure its proper and uniform interpretation in the Code.
Conclusion
Definitely, adoption of such benefits is a boon to society.
But any Law enforceable has become meaningful only through its effective enforcement and particularly, in case of labour laws, periodic inspection and/or inspection on receipt of complaint is the life line of enforcement. The effective application of the relevant provision through the system of labour inspection has been surpassed in this Code. Hence, the entire approach is to make the law efficiently enforceable in order to protect the workers’ interests.
References:
[1] https://msme.gov.in/sites/default/files/Condition_of_workers_sep_2007.pdf
[2] https://pib.gov.in/newsite/PrintRelease.aspx?relid=191213
[3]http://14.139.60.153/bitstream/123456789/2848/1/Report%20of%20the%20Committee%20on%20Unorganised%20Sector%20Satatistics.pdf
[4] https://www.un.org/en/about-us/universal-declaration-of-human-rights
[5] https://doe.gov.in/sites/default/files/6cpchighlights%281%29%281%29.pdf
[6] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019L1152&rid=3
