Authors: Divyanshi Saxena, Gurusha Muniyal
B.A. LL.B (Hons.) 4th Year
University of Petroleum and Energy Studies, Dehradun
Introduction on Code on Social Security:
In order to improve compliance mechanism and also to ensure scope of uniformity in labour laws of India, the NCL recommended a strict consolidation of labour laws into following category that included:
- Industrial relations
- social security
- welfare and working conditions
The Ministry of Labour and Employment introduced total of 4 Bills in order to consolidate twenty-nine central labour laws pursuant to which in the year 2020, The Social Security Code, 2020 (“herein referred as SS Code”) was passed by both houses i.e., Lok Sabha and Rajya Sabha of the Parliament and subsequently received the assent of the President on 28th September, 2020.
The aim of the SS Code was to consolidate the laws that were in relation with the social security of the employees belonging from both organized and unorganized sector. The code on social security absorbed the following acts including:
- The Payment of Gratuity Act, 1972
- The Unorganised Workers’ Social Security Act, 2008
- The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959
- The Maternity Benefit Act, 1961
- The Cine- Workers Welfare Fund Act, 1981
- The Building and Other Construction Workers Welfare Cess Act, 1996
- The Employees’ State Insurance Act, 1948
- The Employees’ Compensation Act, 1923
- The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952
The following acts has been repealed i.e., the acts mentioned above will cease to operate as soon as the code is enacted in the country. The current article deals with the aspect of additions and amendments brought in by the SS code with regards to Maternity Benefits in India. As soon as the code is enacted, the women working in establishments will not be able to seek Maternity benefits via The Maternity Benefit Act, 1961 rather seek the same from SS code.
The code has defined certain key terms for better understanding of the scope of code. Certain set of definition being:
- Employee: The term employee under the SS code has been defined as a person (excluding apprentice (intern) engaged under the Apprentices Act, 1961) who is employed on wages by the establishment so defined, either directly or via a contractor with the aim to do any sort of skilled, semi-skilled, manual, unskilled as well as operational, managerial, supervisory, administrative, clerical, technical or any sort of work either during the terms of employment (express or implied).
- Social Security: The term social security as per the SS Code is understood as the measures of protection which can be afforded to the employees, gig workers and platform workers and unorganised workers in order to make sure that the access to health care and income security especially in cases of old age, maternity, unemployment, injury and sickness or loss of a breadwinner is provided as a means of rights under the SS Code
- Unorganized Sector: The unorganized sector as per the code is defined as an enterprise which is owned either by individuals or by self-employed workers or by people engaged in the process of production or sale of goods and services and where the enterprise employs workers who are less than ten (10) in number.
- Unorganized worker: As per the SS Code, the Unorganized worker is defined as a home oriented or home-based worker or in some matters a person who is self-employed or in cases a wage worker who is in the Unorganised Sector.
- Requirement of Adhaar Card:
As per Section 142 of the SS Code, in case there is any employee or worker in the unorganized sector (establishment) who is seeking maternity benefits under the said SS Code, the person will have to establish her identity. As per the SS code, in matters of the identity of the person who is nominated to receive maternity benefits the identity so accepted is only through an Aadhaar number. It is understood that in absence of an Aadhar Number the person will not be able to avail maternity benefits under the SS code. Earlier, there was no such requirement under the Maternity Benefit Act, 1961 however the requirement is brought forth in the SS code establishing importance of identity via Adhaar.
- Introduction of Inspector-cum-Facilitator:
Earlier as per section 14 of the Maternity Benefit Act, 1961, the appropriate Government has the power to appoint Inspectors in order to enforce the provisions of the Maternity Benefit Act. However, with the arrival of SS Code, the Appropriate government delegated the authority to Inspector-cum-Facilitator to enforce the provision of SS Code.
It is however noted that the duties and powers of Inspector-cum-Facilitator of SS Code and inspector of Maternity Benefit Act are similar and coherent in nature. The authority at any reasonable time has the power to enter any establishment where the women are employed. They have the authority to examine and interrogate any person who they ordinarily and reasonably think is an employee and have the requirement of gaining information regarding the names and addresses of women employed along with the payments made to them.
As per the SS Code, Inspector cum-Facilitator in case of any complaint of Compliance also has the power to enquire and pass order they deem fit and proper.
- Restriction on Officer bearers of Trade Union to file Compliant in Court:
During the tenure of Maternity Benefit Act, in case an aggrieved woman is denied maternity benefits then under Section 23 of the act allowed an officer of registered trade Union (trade Union to which the aggrieved woman is a member) to file complaint regarding any offence in a competent court however as per introduction of SS Code, the officers of Trade Union no longer have the power to do so. As per section 136 of the SS code, now only the aggrieved woman or the Inspector cum-Facilitator can file the complaint to the competent court.
Section 133 of the Code mentions about the punishment when the benefits have been devoid of in cases where the women were permitted to. Imprisonment for a term extending up to 6 months or with a fine which may extend up to INR 50,000 or both can be imposed on the person who in the capacity of being an employer fails to provide the maternity benefits to the women entitled under the code.
The punishment has been enhanced in the SS code, as the Maternity Benefit Act,1961 provided for imprisonment of no less than three months which could extend to one year and fine not less than INR 2000 may extend up to INR 5000.
If there is a repetition of the offence of not providing the maternity benefits to the women who is entitled to under the code, the imprisonment shall not be less than two years and may extend up to three years, and shall also be liable to a fine of INR 3,00,000. As associated to the Maternity Benefit Act,1961 which in cases of re-occurring offences, mentioned the punishment with imprisonment that could extend up to one year or with fine which could extend to INR 5,000 or both.
In cases when the offence is committed by a company, each individual who, at the time the offense was succumbed, was directly accountable for, and was reliable to, the company for the conduct of the matter of the company, will be considered to be at fault for the offense and will be obligated to be continued against and rebuffed accordingly.
Moreover, where such offense has been committed by a company and it is demonstrated that that the offense was submitted with the assent/consent or conspiracy of, or is inferable from any disregard with respect to, any Director, secretary or other official of the organization, such director, secretary or other official will likewise be considered to be at fault for that offense and will be liable to be continued against and punished accordingly.
Nonetheless, if such director, secretary or other official demonstrates that the offense was submitted without their insight or that they practiced all due perseverance to prevent the commission of such offense, no action will be taken against them.
- Prior Opportunity Before Prosecution
Before the initiation of the prosecution proceedings against an employer who has not provided the maternity benefits to the women entitled to, then the inspector cum facilitator shall give him an opportunity to comply with the relevant provisions by way of a written direction, mentioning the time period for such compliance. If there is compliance within the period specified than no such proceedings will be initiated against the employer.
If there occurs a repetition in violation within a period of three years from the date on which the first violation was committed, for not providing the maternity benefits then no such opportunities are given to the employer. In these cases, Chapter XII of the code will be applied.
The Social Security Code subsumes various prevailing and existing labour laws in India. Considering the Maternity Benefits not mere a legal responsibility but also a paramount social responsibility of the employer and the government. The various provisions for women relating to maternity benefits are concerned, the Labour Codes have made a progress and a promising start towards reforming the laws.