Sunday, September 4, 2016

The Maternity Benefit (Amendment) Bill, 2016: Will the new law alter female labour force participation?

Ashmita Sharma

Government legislations and policies have introduced significant changes in the participation of women in the labour markets over recent decades. However, substantial gender differences in formal sector employment remain a stark reality even today. Notwithstanding the differences in the nature of work, system of payment, working conditions and working hours, and wage gap between men and women, much of the differences also stem from the gendered division of parental responsibilities at home, with women being entrusted with the primary responsibility of child-care. Much of the gender gap is also reflected in social policies that were originally created with the assumed bias of treating men as the breadwinners and women as homemakers. Despite sincere efforts at policy level to eradicate this bias, government programs continue to mirror the same. The proposed Maternity Benefit (Amendment) Bill, 2016 is a case in point.

In this context, this article briefly highlights the amendments to the existing Maternity Benefit Act, 1961 and discusses some of the emerging concerns and policy implications on employment equity for women in the labour market.

1961 to 2016: Recent Amendments
The Maternity Benefit Act, 1961 was implemented to regulate the employment of women in certain establishments for certain periods before and after childbirth and to provide for maternity benefits and certain other entitlements. The Act was an important milestone as it ensured women full paid absence from work in order to take care of her child. The Act provided for a maximum period of 12 weeks for which any woman was entitled to avail the maternity benefits. The Act clearly specified that the maximum period of 12 weeks included six weeks up to and including the day of delivery and six weeks immediately following the day of delivery.[1] Prior to the amendment of 1989, a woman was not entitled to the six weeks leave preceding the date of her delivery; she was entitled to six weeks leave only following the day of her delivery. However, the above amendment brought about a perceptive change to the existing clause.[2] Under this Act, any woman working in agricultural, commercial or industrial establishments or shops with 10 persons or more was entitled to the benefits.[3]

With a view to expand the scope of the existing provisions and government’s claims to justify ‘family-friendly’ policies and ‘fairness at work’ for women employees, a bill providing for enhancement of maternity leave from 12 to 26 weeks in the organized sector was passed on August 11, 2016 by the Rajya Sabha. The Maternity Benefit (Amendment) Bill, 2016 as it is called, is a step aimed at increasing the strength of female labour force in the country. In contrast to the provisions of the principal Act, the amended bill provides for increasing maternity benefit to 26 weeks for two surviving children and 12 weeks for more than two children. Apart from the increased maternity leave, the bill contains among other things several welfare provisions for working women which includes mandatory crèche facility for establishments with 50 or more employees, nursing breaks between work, enabling provision to facilitate work from home for new mothers, time off from work for miscarriages and tubectomies and extension of paid maternity leave for commissioning mothers[4] and adopting mothers.

While the proposed new bill comes as a welcome step and a much needed legal reform in the light of the inadequate enforcement of the provisions of the existing Act, the amended law is a peculiar rider in many respects. While at the outset the recent changes represent some improvement over the previous provisions of the principal Act, a careful examination of the listed amendments demonstrates the underlying patriarchal bias. The new bill is highly selective in nature and content, catering to only a small section of the working Indian women. While the Union Labour Minister has made tall claims of the bill aiming to increase women’s participation in the workforce, no attempt has been made to introduce changes to the structure of work as an essential pre-requisite to promote equity of outcome in women’s employment. In assessing its commitment to family-friendly policy initiatives, it should therefore be kept in mind that a substantial part of the proposed legislation is only reinforcing the gender-based inequalities at work and home.

However, a striking feature of the new bill that came as a sign of relief for many women employees was the extension of the 26 weeks maternity leave to women employed in the private sectors. While most of the public sector women employees already enjoyed the 26 week maternity benefit, women in the private sectors were entitled to avail only 12 weeks of maternity leave. With a view to create a level playing field for women employees in the two sectors of employment, the recent amendments were seen as the need of the hour. At 26 weeks, India is proud to join the league of 42 nations where maternity leave exceeds 18 weeks. It, however, falls behind many East European, Central Asian and Scandinavian countries with the most generous national legislation for paid maternity leave.[5] The Union Labour Minister claimed that the new bill would vault India to the third position in terms of the number of weeks allowed for maternity leave, behind Norway and Canada.[6]  Therefore, it appears that a large part of the policy legislation is introduced not as the government’s own initiative to improve women’s economic participation, but in order to secure a position internationally by accepting its commitment to global labour standards.   

While the proposed changes in the new bill is a bold step towards providing social safety net for women in the organized sectors, many of the emerging gender concerns and larger policy implications have not been accorded requisite attention. The following section will attempt to highlight some of these debates and concerns.

Equality of ‘opportunity’ to Equity in ‘Outcome’: Challenges and Concerns
An analysis of the provisions in the new bill suggests that there are persisting areas of gender concerns despite government interventions to strengthen existing mechanisms of policy implementation. Feminist scholars have highlighted the gendered impact of such policies, which increases women’s job vulnerability in different employment sectors. However, they agree that some special benefits in the form of welfare measures designed by the government are essential for women’s employment equity while enabling them to continue their role as mothers. The contention in different feminist positions stems from whether policies focussing on ‘equality of opportunity’ with men will lead to equity and justice for women or the emphasis should be more on the ‘equity of outcome’ considering the biological differences between men and women (Baker 1997).

Despite the long due amendments to the Maternity Benefit Act, 1961, it should be noted that leave policies with respect to pregnancy and child-care have changed at a snail-like pace. Moreover, the changes suggested in the new legislation have precipitated raging debates among scholars and academicians alike. This is primarily because many of the maternity and parental leave policies are based on the societal belief that women are the ‘natural’ caregivers. Such policies, therefore, suggest measures to protect the health of the pregnant woman and the mother, to protect women against income and job loss during pregnancy and childbirth, and facilitate the intended development of mother-child attachment.  We see that none of the benefits discussed so far have pitched for paternity leave norms to enable fathers to play an active role in childcare. Asked about paternity leave and other benefits for fathers, the Union Labour Minister commented that the new bill is only for mothers and children, not for men.[7] Although India does not have a law mandating paternity leave, the Centre allowed fathers to take 15 days paid leave from 1999.[8] As opposed to the 26 week maternity leave for women, 15 days is too tokenistic a benefit to realize the objective of ‘shared parental responsibility’, besides perpetuating gendered division of labour. Such policies also discriminate against men who want to be involved with their infants and impede upon equal rights for biological and adoptive or single fathers.

While such statutory protections are viewed as a mechanism to allow working women equal opportunity in the workforce, long term job-protected benefits directed only at women would discourage employers from hiring women of childbearing age, thereby greatly affecting female labour force participation rates. Moreover, it is apparent that the amendment has narrowed the definition of working women by stressing statutory benefits for women employed only in the organized sector, thereby, excluding about 96 per cent of women concentrated in the unorganized sector. The bill, therefore, assumes that all women are full-time workers with continuous attachment to the labour force. As a result, many women who are home-based workers, contract or part-time workers, or those who hold temporary positions are not entitled to the statutory provisions under the law. The amended law suggests that women with more than two children will only be entitled to 12 weeks of paid maternity leave. While discrepancy in paid leave depending on the number of children demands further explanation in the law, such an act of penalizing women needs to be outrightly challenged. This is because women who bear more than two children do not necessarily ‘choose’ to get pregnant. In addition, 12 weeks of maternity leave to commissioning mothers and adopting mothers has also come under severe criticism. This once again reiterates the patriarchal stereotype that motherhood is ‘biological’ and never a matter of ‘choice’.    

Thus, the recent amendments to the Maternity Benefit Act, 1961 reflect that while enough opportunities have been created and re-created to provide job protection to women against social risks, differential access to resources, roles and responsibilities in the market and in the household has led to unequal outcomes. The new bill establishes a simplistic correlation between female labour force participation and maternity leave policy. Not only ‘participation’ but an assessment of the nature of women’s work is required to contribute to women’s economic development. A key challenge to overcome is women’s concentration in poorly paid or low skilled jobs characterized by the absence of upward mobility and opportunity, leading to the creation of ‘horizontal occupational segregation’.[9]

Feminists and other progressive groups have fought relentlessly for paid maternity leave, although there have been on-going debates about the practicality and viability of long-term leave for gender equality at home and in the labour force (Baker 1997).  It has been felt over the years that despite the implementation of various reform proposals, traditional division of labour and patriarchal relations have been maintained. This is primarily because policies and legislations across countries have been formulated and implemented within an inflexible gender-structured labour market. While maternity and parental benefits are essential for promoting women’s employment equity, these social programs are not enough to resolve the structural inequities at home and in the labour market. Social policies and welfare measures need to stress the importance of other related issues like pay equity between men and women in all sectors of employment, accessible and affordable childcare, infrastructural development in the workplace, universal healthcare, and men’s equal participation in childcare and housework. Therefore, the Maternity Benefit (Amendment) Bill, 2016, should focus on addressing some of these emerging concerns for achieving women’s employment equity and justice in the labour market.

Notes 
[1] The Maternity Benefit Act, 1961, http://www.ilo.org/dyn/travail/docs/678/maternitybenefitsact1961.pdf, accessed August 13, 2016.
[4] A biological mother who uses her egg to create an embryo implanted in any other woman, http://www.ilo.org/dyn/travail/docs/678/maternitybenefitsact1961.pdf, accessed August 15, 2016; http://www.prsindia.org/uploads/media/Maternity%20Benefit/Maternity%20Benefit%20Bill,%202016.pdf, accessed August 15, 2016.

References
Baker, Maureen. 1997. ‘Parental Benefit Policies and the Gendered Division of Labour’, Social Service Review, 17(1): 51-71
Government of India. nd. ‘Report of the Working Group on the Empowerment of Women’, Ministry of Women and Child Development
Nair, Shalini. 2015. ‘Government to increase maternity leave in private sector to 26 weeks’, The Indian Express, December 29
Rao, Menaka. 2016. ‘Maternity leave increases to 26- but only for a small section of the Indian women’, Scroll.in, August 13
The Economic Times. 2016. ‘Coming soon! Six months of maternity leave for private sector employees’, July 1
The Hindu. 2016. ‘Women MPs pitch for paternity leave’, August 11

The Author is doing PhD at Tata Institute of Social Sciences, Mumbai. 

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