10th March 2019 From India, Salem
It is possible to take another view. Here the the nomenclature can be anything but she is probably issued an appointment letter giving the terms of service . If the school has more than 10 employed persons and she has worked for more than 80 days then regardless of her designation , in my view ,she is an employee and therefore covered under the MB Act.
She is paid for full attendance and doing her job as Consultant.
She is entitled for the MB
10th March 2019 From India, Mumbai
(o) ďwomanĒ means a woman employed, whether directly or through any agency, for wages in any establishment.
Ministry of Labour & Employment issued a clarification dated April 12, 2017, wherein it was stated that as there was no amendment to Section 2(o) of the Act of 1961, the Act is applicable to all women who are employed in any capacity, directly or through any agency i.e. contractual or consultant employment.
What is the condition/eligibility to claim maternity benefit?
Section 5(2) of the Act clearly states that a woman is entitled to maternity benefit if she has actually worked in an establishment of the employer for a period of not less than 80 days in the twelve months immediately preceding the date of her expected delivery.
There exists grounds for the consultant to claim maternity benefits.
10th March 2019 From India, Pune
You are very much eligible to claim full maternity benefits from the school if the school employs more than 10 employees. You are expected to act like an employee; however you do not enjoy the same benefits as employees. The school's contract with you is a "sham contract" and is unfair in nature. Please write a letter to the school, seeking full benefits under the Maternity Benefit Act.
11th March 2019 From India, Delhi
In the former case of FTC between the poster and the establishment, there exists a substantial relationship of employer-employee and in the latter case too such a relationship gets extended by virtue of the indisputable application of the Maternity Benefit Act,1961 to the school. Thus, the existence of a contract of service, whether express or implied, determines the relationship of employer and employee between the parties.
On the contrary, a contract for service results only in the creation of the relationship of contractor and contractee between the parties to the contract. Contextually, the term "consultant" employed in the original post refers not only to the work done by the poster but also her status of engagement as a "contractor" on retainer basis as per the terms of the contract. To be more elaborate, under any contract for consulting service, there are two types of retainers viz., Pay for Work Retainer and Pay for Access Retainer. In either case, " the engaged consultant" cannot become an integral part of the establishment/organization like an employed person.Thus, the poster is not an employed woman in the establishment and the consolidated amount she is paid monthly is just the retainer fee and not "wages" as defined under the MB Act,1961.
I am unable to think that the definition of "woman" under the MB Act,1961 cited by Mr.Rao would be helpful unless "the woman" is employed in the establishment under a contract of employment nor the clarificatory circular dt 12-04-2017 of the Ministry of Labor&Employment would be of any aid to the ultimate question of the poster as it covers the cases of contract employees either under FTC or a contract through any agency or contractors.
If the poster claims statutory maternity benefit as suggested by Mr. Rahul on the alleged premise of the existing contract being a sham one, the school management may terminate the contract under the foreclosure clause.
Hence I reiterate my earlier answer.
11th March 2019 From India, Salem
#AnonymousThank you so much everyone for giving me some insight and clarification!
11th March 2019 From India, Delhi
Now, having appointed as a teacher with a designation of Consultant, on a consolidated pay with all the other code of conducts of service, she should be doing the work of a teacher only. As such there exists employee employer relationship, I understand. If she is a consultant, she should first possess a higher qualification which enables her to give valid advises to the faculty or the management on the matters connected with teaching, management of school etc. Secondly, she should not be following the timing of the school and should not be signing the muster rolls. Thirdly, she should not be doing the same work as other teaching staff are doing.
In Worckhardt Hospitals Ltd Vs Dep.of Income Tax a similar situation had come with the Doctors who were appointed as Consultants. The I T Department found that these Doctors were governed by the service rules of the hospital with regard to timing and reporting and accordingly they should be considered as employees. In the similar way, the arrangement here is also something which is to safe guard the interests of the establishment,ie, the school. They have appointed a teacher as Consultant with a view to reducing their burden of paying PF, Bonus and other payments to which she will otherwise be eligible, leaves of any kind and even gratuity at the time of her leaving. And in my opinion, if she is teaching the students, she is a teacher by all means and designation of Consultant is only a smoke screen and she should be getting all the benefits which are available to other teachers of the school including maternity leave.
Unquote: There are two ways,either to demand the leave and if refused, escalate the same to the labour department. If you do so, the school will also say that you do not possess the qualification prescribed and you may please go. Then why did they appoint you etc etc is different question. The second way is to take a break for maternity without any paid leave and join back after the academic period or as directed by the school authorities.
12th March 2019 From India, Kannur
so there is no employee relationship
i to worked for a company like this only and they deducted 10 % TDS From my legal payment and issued form 16.and i encashed retainer leaves RL(they given 14 RL's Per year) after relieving
And they showed me as a consultant
Need suggestions about my opinion.
13th March 2019 From India, Hyderabad
14th March 2019 From India, Kannur
One way is employee or consultant as termed in original query can seek labour officers view on the matter on the quiet.
GOI had good welfare thoughts in mind when they introduced MBAct and now increased duration, but effect is on female employees.Some companies try to avoid hiring ladies itself.
These are all growing pains in an economy which is struggling but will eventually achieve full potential.
18th March 2019 From India, Pune
It is good to speak women empowerment and equality. recently I have attended a session organised by CII on IR issues in Kerala. In that seminar eminent personalities have said a lot about enforcement of labour laws for the benefits available to workers but included in that was the HR Head of one organisation which has been experimenting on how to deny these benefits!!! It is also surprising that such personalities will be awarded the Best HR Managers!!!
18th March 2019 From India, Kannur