Certainly, as per 5A if a woman under ESI is not qualified to get maternity benefit under ESI Act, she will get it from the employer following the provisions of Maternity Benefit Act. But sub section (c) of section 5B of the Maternity Benefit Act clarifies that 80 days working is required to make a woman employee entitled to get maternity benefit. That means, minimum working of 80 days in during 12 months immediately preceding the date of delivery is mandatory. However, if she is not qualified to get the benefit from ESI, then it becomes the responsibility of the employer to give the benefits PROVIDED she has worked at least for 80 days.
Regards,
Madhu.T.K
From India, Kannur
4250Regards,
Madhu.T.K
From India, Kannur
Hi Everyone,
I have started working as an HR recently & so not well versed with laws. Plz help me.
In my organisation we have less than 10 employees in Bangalore & female employee has been working there for past 1 year & she has also worked for 80 days in the same year.
She went on Maternity leave in March 2011 but my problem is there is confusion between me & management that since we dont have 10 employees in the organisation we are not liable to give Maternity leaves.
Also we have a confusion since my co. has three org. so we have divided employees in a way that there are less than 10 employees
From India, Mumbai
I have started working as an HR recently & so not well versed with laws. Plz help me.
In my organisation we have less than 10 employees in Bangalore & female employee has been working there for past 1 year & she has also worked for 80 days in the same year.
She went on Maternity leave in March 2011 but my problem is there is confusion between me & management that since we dont have 10 employees in the organisation we are not liable to give Maternity leaves.
Also we have a confusion since my co. has three org. so we have divided employees in a way that there are less than 10 employees
From India, Mumbai
Dear Mr.Krishnan/M.Madhu,
I have slightly different question regarding MB.
Whether it is manadatory for an lady employee to avail these leaves in 2 parts i.e. pre delivery & post delivery.
Can, someone claim these in 1 go itself, is their any stautory bindation regarding this?
Regards
Ranjeet
From India, New Delhi
I have slightly different question regarding MB.
Whether it is manadatory for an lady employee to avail these leaves in 2 parts i.e. pre delivery & post delivery.
Can, someone claim these in 1 go itself, is their any stautory bindation regarding this?
Regards
Ranjeet
From India, New Delhi
Dear Mr.Ranjeet
A lady employee can avail the entire leave in one part subsequent to delivery. In such a case the first day of leave should be the day of delivery. Prior to delivery the leave availed by her cannot exceed 6 weeks.
From India, Madras
A lady employee can avail the entire leave in one part subsequent to delivery. In such a case the first day of leave should be the day of delivery. Prior to delivery the leave availed by her cannot exceed 6 weeks.
From India, Madras
Dear Mr.Krishnan,
Thanks for the clarification, Till now i was in assumption that the half ML should be pre delivery & than post, May be it read some where.
Sir, Can you put youe valuable guidance in one of my querries in Labour & employee relations in PF on overtime sublect.
Regards
Ranjeet
From India, New Delhi
Thanks for the clarification, Till now i was in assumption that the half ML should be pre delivery & than post, May be it read some where.
Sir, Can you put youe valuable guidance in one of my querries in Labour & employee relations in PF on overtime sublect.
Regards
Ranjeet
From India, New Delhi
Dear Radhika,
For applicability of Maternity Benefit Act there seems to be no employee limit. Therefore, if your establishment is registered under Factories Act or Shops and Commercial Establishments Act and if your establishment comes under the purview of Industrial Disputes Act, then the Maternity Benefit Act will also apply to your establishment. You have to give maternity leave and benefits( medical bonus) as applicable.
Regards,
Madhu.T.K
From India, Kannur
For applicability of Maternity Benefit Act there seems to be no employee limit. Therefore, if your establishment is registered under Factories Act or Shops and Commercial Establishments Act and if your establishment comes under the purview of Industrial Disputes Act, then the Maternity Benefit Act will also apply to your establishment. You have to give maternity leave and benefits( medical bonus) as applicable.
Regards,
Madhu.T.K
From India, Kannur
Dear Ms.Radhika Lakhotia
The information furnished by you in your post is not sufficient to give an appropriate view on the issue raised. However, I will attempt to answer the query raised by you.
1.Please check whether the organization(s), either separately or together are covered by the provisions of the ESI Act. If the ESI Act is applicable, the woman employee is entitled to get the maternity benefit under the ESI Act subject to the provisions of the ESI Act. Please remember that if the ESI Act is applicable to your organization(s) then non recovery of the employee’s contribution or the non-remittance of the employers contribution cannot disentitle the woman employee from getting the benefits under the ESI Act.
2. If the ESI Act is not applicable…..In which case the Maternity Benefit Act is applicable, You have not stated in your post as to what is the nature of the establishment(s) referred to by you. In case it is a factory, it is sufficient if it satisfies the definition of the term “factory” as defined under the Factories Act the MB Act becomes applicable. It may be that your organization(s) satisfy the definition of “factory” as defined under the Factories Act, but might not have been registered under the Factories Act. This makes no difference. Failure to register or non-registration as a factory is not the mistake of the employee and she is entitled to get the benefit of the MB Act. A premises becomes a factory not by registration under the Factories Act, but by coming within the ambit of the definition of the term “factory” as defined under the Factories Act. I presume that your organization(s) are not mines or plantations. In case your organization(s) is either “a shop or establishment within the meaning of any law relating to shops and establishments” then the MB Act becomes applicable if ten or more persons are employed or were employed on any day during the preceding twelve months. [Please see section 2(1)(b) of the MB Act.]. So even though as of now, there are less than ten employees, please check whether during the past twelve months there were at any point of time ten or more employees. If it be so, then the MB Act becomes applicable from the date on which there were ten or more employees, though the number might have gone down below ten after some time and is below ten even now. Further please check whether the State Governments in which your organization is situated, have extended the provisions of the MB Act to shops or establishments employing less than ten persons. In such a case, the MB Act becomes applicable though the number of employees is less than ten (Please see the proviso to Section 2(1)(b) of the MB Act.
From India, Madras
The information furnished by you in your post is not sufficient to give an appropriate view on the issue raised. However, I will attempt to answer the query raised by you.
1.Please check whether the organization(s), either separately or together are covered by the provisions of the ESI Act. If the ESI Act is applicable, the woman employee is entitled to get the maternity benefit under the ESI Act subject to the provisions of the ESI Act. Please remember that if the ESI Act is applicable to your organization(s) then non recovery of the employee’s contribution or the non-remittance of the employers contribution cannot disentitle the woman employee from getting the benefits under the ESI Act.
2. If the ESI Act is not applicable…..In which case the Maternity Benefit Act is applicable, You have not stated in your post as to what is the nature of the establishment(s) referred to by you. In case it is a factory, it is sufficient if it satisfies the definition of the term “factory” as defined under the Factories Act the MB Act becomes applicable. It may be that your organization(s) satisfy the definition of “factory” as defined under the Factories Act, but might not have been registered under the Factories Act. This makes no difference. Failure to register or non-registration as a factory is not the mistake of the employee and she is entitled to get the benefit of the MB Act. A premises becomes a factory not by registration under the Factories Act, but by coming within the ambit of the definition of the term “factory” as defined under the Factories Act. I presume that your organization(s) are not mines or plantations. In case your organization(s) is either “a shop or establishment within the meaning of any law relating to shops and establishments” then the MB Act becomes applicable if ten or more persons are employed or were employed on any day during the preceding twelve months. [Please see section 2(1)(b) of the MB Act.]. So even though as of now, there are less than ten employees, please check whether during the past twelve months there were at any point of time ten or more employees. If it be so, then the MB Act becomes applicable from the date on which there were ten or more employees, though the number might have gone down below ten after some time and is below ten even now. Further please check whether the State Governments in which your organization is situated, have extended the provisions of the MB Act to shops or establishments employing less than ten persons. In such a case, the MB Act becomes applicable though the number of employees is less than ten (Please see the proviso to Section 2(1)(b) of the MB Act.
From India, Madras
We have 19 employees here in a software co. it was establish in March.our 11 employee's salary are more than 15000 k (Gross salary) and left 9 is getting below, in this conditions:
I have four question here :
1. Is it mandatory for registering with ESIC as a software development co.
2.If yes, Please suggest what are the procedures for an old co. to get registered in ESI.
3.Is there any penalty for not doing it till now? if yes so how much.....?
4.How long it will take to get registered? Can we do it online? (Formalities please)
Please tell me it soon so that i can do it in welfare of our employees.
From India, Lucknow
I have four question here :
1. Is it mandatory for registering with ESIC as a software development co.
2.If yes, Please suggest what are the procedures for an old co. to get registered in ESI.
3.Is there any penalty for not doing it till now? if yes so how much.....?
4.How long it will take to get registered? Can we do it online? (Formalities please)
Please tell me it soon so that i can do it in welfare of our employees.
From India, Lucknow
Hello,
One of my employee is in our rolls since nov 2010 and was on maternity leave w.e.f Jun 2011.She was not eligible for esi maternity benefits since she has not completed 9 months preceding to her date of delivery on 04 JUn 2011, where as she had completed 80 days of working prior to delivery. Does the employer is required to pay the materity leave benefits for 84 days since she is under esi? She
With regards
Pravin
From India, Bangalore
One of my employee is in our rolls since nov 2010 and was on maternity leave w.e.f Jun 2011.She was not eligible for esi maternity benefits since she has not completed 9 months preceding to her date of delivery on 04 JUn 2011, where as she had completed 80 days of working prior to delivery. Does the employer is required to pay the materity leave benefits for 84 days since she is under esi? She
With regards
Pravin
From India, Bangalore
Dear Mr.Pravin
Please see section 5 A of the Maternity Benefit Act. I am extracting this section for your benefit. It reads as follows
5-A Continuance of Payment of Maternity Benefit in certain cases:- Every woman entitled to the payment of maternity benefit under this Act shall notwithstanding the application of the Employee's State Insurance Act 1948 to the factory or other establishment in which she is employed continue to be so entitled untile she becomes qualified to claim maternity benefit under section 50 of that Act.
The real import of this section reproduced above is that until the time the woman to whom the ESI Act is applicable, becomes eligible to get the maternity benefit under the ESI Act, she will be entitled to get the benefit under the Maternity Benefit Act until she becomes entitled to get the maternity benefit under the ESI Act. Therefore in the case stated by you as the woman is not entitled to get the maternity benefit under the ESI Act she is entitled to get the maternity benefit under the Maternity Benefit Act.
With regards
From India, Madras
Please see section 5 A of the Maternity Benefit Act. I am extracting this section for your benefit. It reads as follows
5-A Continuance of Payment of Maternity Benefit in certain cases:- Every woman entitled to the payment of maternity benefit under this Act shall notwithstanding the application of the Employee's State Insurance Act 1948 to the factory or other establishment in which she is employed continue to be so entitled untile she becomes qualified to claim maternity benefit under section 50 of that Act.
The real import of this section reproduced above is that until the time the woman to whom the ESI Act is applicable, becomes eligible to get the maternity benefit under the ESI Act, she will be entitled to get the benefit under the Maternity Benefit Act until she becomes entitled to get the maternity benefit under the ESI Act. Therefore in the case stated by you as the woman is not entitled to get the maternity benefit under the ESI Act she is entitled to get the maternity benefit under the Maternity Benefit Act.
With regards
From India, Madras
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Maternity Leave Policy - posting.doc