OPINION ON CRECHE
As per the Maternity Benefit (Amendment) Act, 2017, it has been made mandatory for the establishments employing 50 or more employees (inclusive of males and females )to provide crèche facility, either separately or along with common facilities within a prescribed distance.
Time to time, advisories are issued to State Governments for strict enforcement and compliance of the provisions of the Maternity Benefit Act, 1961.
By virtue of the amendment in 2017, which has come into effect from 01.07.2017, Section 11A has been introduced to provide facility of Crèche’ within such distance either separately or along with common facilities.
That, the employer shall allow the woman 4 visits a day to the crèche by the woman which will include her interval for rest allowed under the amended provisions of The Maternity Benefit Act 1961.
As per the said section at 11A (2), every establishment shall intimate in writing and electronically, to the every woman at the time of her initial appointment, regarding every benefit available under the Act.
The Act has increased the duration of paid maternity leave available to working mothers from 12 weeks to 26 weeks.
Provided that, for women, who already have two surviving children, will be entitled for paid maternity leave of only 12 weeks
Further, Section 11A of the Maternity Act safeguards the intent of Section 48 of the Factories Act, 1948, which requires factories with more than 30 female workers to have a crèche. Therefore, even if a factory has less than 50 employees but has at least 30 females, such factory will be under the obligation to have a crèche under the Factories Act, 1948. Since the Maternity Act is more beneficial legislation, the no. of female employees is not a necessary criteria if the establishment is having 50 or more employees
As the Guidelines on crèche facilities are awaited from the respective State Governments, in the meantime, the establishments may adopt as guidelines, the provisions relating to crèche from various existing laws such as The Factories Act, 1948, and The Building and other Construction Workers’ (Regulation of Employment and Conditions of Service) Act, 1996, Maharashtra Shops and Establishments Act. These laws provide that crèches shall-
- provide adequate accommodation
- be adequately lighted and ventilated
- be maintained in a clean and sanitary condition;
- be under the charge of women trained in the care of children and infants.
Further, it is to be noted that crèche facilities should be available to employees free of cost.
- The factories Act 1948
- Maternity Benefit Act 1961
- Maharashtra Shops and Establishments Act 1948
- The Maternity Benefit Amendment Act 2017, is the recent amendment to the said Act, particularly, the insertion of section 11A(1)
“ Every establishments having 50 or more employees , shall have the facility of crèche within such distance as may be prescribed either separately or along with common facilities.
- Since there is no specific direction issued by the State Government in respect of the “distance” and “common facilities”, it is the duty of the employer to act prudently and fairly to safeguard the interest of the child and such cost shall be borne by the employer.
- The employer is permitted to avail such common facility from the nearby place where such crèche is being run and the employee concerned cannot insist any special facility unless the same is possible and warranted within the framework of law.