Hello Everyone,
I need help in understanding a doubt of mine wrt Maternity Benefit Amendment Act 2016.
Suppose a woman has applied for Maternity Leave as per old rules (twelve weeks leaves) and while she was on leave, this amendments are notified by Government and new rule of twenty six weeks becomes applicable.
Under such scenario, can woman (already on leave of 12 weeks per previous act before amendment) extend her leaves (legally) to 26 weeks per new amendments?
I am sure many people will have this question.
Any help/guidance on this will be humbly appreciated.
Thanks
From India, Mumbai
I need help in understanding a doubt of mine wrt Maternity Benefit Amendment Act 2016.
Suppose a woman has applied for Maternity Leave as per old rules (twelve weeks leaves) and while she was on leave, this amendments are notified by Government and new rule of twenty six weeks becomes applicable.
Under such scenario, can woman (already on leave of 12 weeks per previous act before amendment) extend her leaves (legally) to 26 weeks per new amendments?
I am sure many people will have this question.
Any help/guidance on this will be humbly appreciated.
Thanks
From India, Mumbai
Now that the Government has extended the Maternity Leaves, the New Maternity duration stands to 6 months, irrespective of whether you are OR are not in your Maternity period.
The important thing to note is that, today’s date shouldn’t fall in the six months period from the start of your Maternity Leave.
Elaborating simply:
If you started Maternity Leave from today, your Leaves are upto 6 months from today.
If you had started your Leave from last week, your Leaves are upto 6 months from last week.
If you started Leaves from 3 months back, your Leave are upto 6 months from 3 months back.
Now, even if you have rejoined your office after completing your ML, and if you notice that today's date is lesser than six months from the start of your ML, then you are entitled to avail the additional leaves.
For example:
If you had started you ML on 11th May’16, then as per extant rules, your ML would have expired on 11th Aug’16 - and you would have joined office on 12th August.
However, the new rules require that six months to be granted to all mothers. Hence, 6 months from 11th May’16 comes upto 11th Nov’16. Hence, you are entitled to again ‘Leave’ office for the prescribed duration upto 11th Nov’16
This also means that Employees who had exhausted their Paid Maternity Leave and extended with additional LOPs/LWPs (Loss of Pay/Leave without Pay) - are entitled to receive salary for the same and also avail the remaining additional pending leaves amounting to 6 months.
Hence, the only people who will be benefited from this New Rule are employees who had started availing Leaves from or after 11th Feb’16. (SInce obviously the Six Months rule do not advantage people before 11thFeb’16)
Employees who had taken 3 months of ML last year, cannot ask for additional 3 months this year, since the rule applies only to the continuous entitlement of 6 months duration from the start of the Maternity Leave Date.
The above has been formulated and concluded in accordance with the various governmental organizations, who had experienced similar hurdles while implementing the same during the beginning of this year.
From India, Mumbai
The important thing to note is that, today’s date shouldn’t fall in the six months period from the start of your Maternity Leave.
Elaborating simply:
If you started Maternity Leave from today, your Leaves are upto 6 months from today.
If you had started your Leave from last week, your Leaves are upto 6 months from last week.
If you started Leaves from 3 months back, your Leave are upto 6 months from 3 months back.
Now, even if you have rejoined your office after completing your ML, and if you notice that today's date is lesser than six months from the start of your ML, then you are entitled to avail the additional leaves.
For example:
If you had started you ML on 11th May’16, then as per extant rules, your ML would have expired on 11th Aug’16 - and you would have joined office on 12th August.
However, the new rules require that six months to be granted to all mothers. Hence, 6 months from 11th May’16 comes upto 11th Nov’16. Hence, you are entitled to again ‘Leave’ office for the prescribed duration upto 11th Nov’16
This also means that Employees who had exhausted their Paid Maternity Leave and extended with additional LOPs/LWPs (Loss of Pay/Leave without Pay) - are entitled to receive salary for the same and also avail the remaining additional pending leaves amounting to 6 months.
Hence, the only people who will be benefited from this New Rule are employees who had started availing Leaves from or after 11th Feb’16. (SInce obviously the Six Months rule do not advantage people before 11thFeb’16)
Employees who had taken 3 months of ML last year, cannot ask for additional 3 months this year, since the rule applies only to the continuous entitlement of 6 months duration from the start of the Maternity Leave Date.
The above has been formulated and concluded in accordance with the various governmental organizations, who had experienced similar hurdles while implementing the same during the beginning of this year.
From India, Mumbai
Dear Friends, Was there any official Ordinance/Order/notification received form the Govt of India about the enactment it this regard, please share Anil Kumar
From India, Pune
12From India, Pune
So far there is no gazette notification implementing the new amendment in Maternity benefit Act.As on the day you can follow the old rule.
From India, Thiruvananthapuram
From India, Thiruvananthapuram
@Anil: Official notification has not been published yet. Bill is pending to be passed in Lok Sabha. Labour Ministry had plans to enforce the amendments by way of passing an Ordinance. An article appeared in Times of India that Labour Ministry had urged PMO for the same. But there is no update on Ordinance since then.
@Smita: From where did you got the date 11th Feb 2016 as reference? Amendments proposed in Bill is not enforced yet. So any woman applying for ML before release of official notification/ordinance will get 3 months leaves only.
The real question is what will happen in case of women who are already on ML on the day when the notification is released. Can these women get their leaves extended to 6 months? Or they will not be eligible for the benefits per new amendments?
I request people practicing law to throw some light on it.
From India, Mumbai
@Smita: From where did you got the date 11th Feb 2016 as reference? Amendments proposed in Bill is not enforced yet. So any woman applying for ML before release of official notification/ordinance will get 3 months leaves only.
The real question is what will happen in case of women who are already on ML on the day when the notification is released. Can these women get their leaves extended to 6 months? Or they will not be eligible for the benefits per new amendments?
I request people practicing law to throw some light on it.
From India, Mumbai
Unless specified, the amendment shall be prospective. Accordingly the extended number of 26 weeks shall be applicable to only those who proceed on ML after the amendment is notified. In the existing case where the woman is already on ML she will have only 12 weeks which does not get enhanced automatically
Mr. Anonymous,
Currency of leave matters much. The revised limit of maternity leave would apply, if the woman employee is still on such leave on the date of effect of the amended Act. If the period of her maternity leave has already expired and she joined her duty before the date of effect of the amended Act, she would not be able to avail the enhanced period of maternity leave.
From India, Delhi
Currency of leave matters much. The revised limit of maternity leave would apply, if the woman employee is still on such leave on the date of effect of the amended Act. If the period of her maternity leave has already expired and she joined her duty before the date of effect of the amended Act, she would not be able to avail the enhanced period of maternity leave.
From India, Delhi
Mr. Kanan and Mr. Dhingra: Thank you so much for your replies. But I have been receiving such mix responses and answer to this question.
I totally understand woman who has completed her ML period will not be eligible. But confusion still persists for those who will be in their ML period when the amendments are notified.
Some people say new amendments will not benefit woman actually on ML leave (and not completed the leave duration or not joined duty yet) during notification and some people say she can get the benefit.
Could you please share the basis on which one can logically decide what will be the case: like wording provided in the amendment act as re-produced below:
"It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint:
Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to this commencement of this Act shall be construed as a reference to the coming into force of that provision."
How do we interpret this?
From India, Mumbai
I totally understand woman who has completed her ML period will not be eligible. But confusion still persists for those who will be in their ML period when the amendments are notified.
Some people say new amendments will not benefit woman actually on ML leave (and not completed the leave duration or not joined duty yet) during notification and some people say she can get the benefit.
Could you please share the basis on which one can logically decide what will be the case: like wording provided in the amendment act as re-produced below:
"It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint:
Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to this commencement of this Act shall be construed as a reference to the coming into force of that provision."
How do we interpret this?
From India, Mumbai
As told by Mr. Dhingra any women availing the MB Leave gets completed before the amendment notification cannot get the extension as she has already resumed the duty. If any women employee who is availing the MB Leave and if the amendment is notified in between then she can further apply for such extension as per the amendment and can avail the extended leave. Last but not the least company are at will to give extension of MB Leave if desired so, but it is not mandatory as of date. Hope this clarifies
From India, Ahmadabad
From India, Ahmadabad
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ESI Rule amendment reg enhancement of Maternity Benefit Jan 2017.pdf