Umakanthan53
Labour Law & Hr Consultant
Madhu.T.K
Industrial Relations And Labour Laws
Nagarkar Vinayak L
Hr And Employee Relations Consultant
Rahul Chhabra
Hr Professional
SameerBG
Hr & Welfare Professional
Nathrao
Insolvency N Gst Professional
+3 Others

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Anonymous
I teach in a school since the past 2 years but as a consultant as I do not have a b.ed degree yet. I have been hired as a consultant and get a consolidated payment at the end of each month. No other benefits are extended- pf , esi, mediclaim, no CL, PL. 10% TDS is deducted per month. However I have to maintain regular, full time attendance.
I wanted to know if I am eligible for maternity leave and benefits as my contract hasnít spelled out anything in this regard.
Thanks.

From India, Delhi
The poster is not eligible to get statutory maternity benefits as she is only under a contract for service with the school. To be eligible to claim certain statutory rights and benefits available under the Labor Laws, the basic requirement is that the hired person should be an employee covered by a contract of service or employment.
From India, Salem
Dear Colleague,
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
Regards,
Vinayak Nagarkar
HR- Consultant

From India, Mumbai
Definition of woman sec3(o) MB Act
(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.

From India, Pune
Dear Anonymous,
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.
Regards
Rahul Chhabra

From India, Delhi
I've carefully gone through the replies of the above three learned members and I would have been in complete agreement with them had the poster been "employed" by the establishment as a "contract employee" either directly such as a fixed term contract employee or indirectly through any third party or agency like a contractor.
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.

From India, Salem
Anonymous
Thank you so much everyone for giving me some insight and clarification!
From India, Delhi
In my view the relationship between the this member and the school is not like a retainer and the employer. Under a retainership arrangement the consultant is not guided by the code of conduct of the establishment with regard to timing, attendance, leave, etc and it is expected that she/ he should possess some special skill which he/ she uses for the benefit of the person who engages him/ her. At the same time, the member here does not possess the prescribed qualification required to teach the students. Now what kind of advise shall she give to the management or the students when she is not even qualified to teach? Certainly with a Doctorate Degree or similar qualification you can become an adviser to the faculty members but not a teacher on regular academic program.
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.

From India, Kannur
i feel a consultant and consultancy is a part of business relationship only, i mean she is teacher and school is her customer.
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.

From India, Hyderabad
Case 2:-
And for some my collegues(Contractual employees Like me) they deducted EPF And TDS Also
in Appointment letters they clearly mentioned there is no other monatory benefits applicable
Need Suggestion on this

From India, Hyderabad

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