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.
10th March 2019 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.
10th March 2019 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
Vinayak Nagarkar
HR- Consultant
10th March 2019 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.
10th March 2019 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.
Rahul Chhabra
11th March 2019 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.
11th March 2019 From India, Salem
Thank you so much everyone for giving me some insight and clarification!
11th March 2019 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.
12th March 2019 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.
13th March 2019 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
13th March 2019 From India, Hyderabad
If you are a teacher, your relationship with the school is nothing other than employee. Whether they deduct PF or not is different story. But you follow the school timings, teach students, take their evaluation, prepare reports of the students' progress, give advises to the parents etc, you cannot be a consultant at all.
14th March 2019 From India, Kannur
Employers come up with various subterfuges to deny Maternity Benefits to female employees as it is quite a big sum.With most companies/organisations running on tight cost patterns, the tendency to cut costs is very strong.
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 true that small organisations which work with say 20 or 30 employees may not be able to hire people on leave vacancy for six months to make up the work of an employee on maternity leave. If it is an ESI case, at least the employer can get a relief that he is not paying salary during the maternity days. But paying full salary for six months and taking a temporary employee in the place and again paying at least 60 or 70 percent of the salary to that person to make the things run is not practical for small organisations. In such scenario they will do their maximum to avoid paying maternity leave salary.
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
You are not eligible for Maternity benefit.
26th March 2019 From India, Delhi
The final word has come the new member that "you are not eligible for Maternity benefit!" No more comments!!
Thank you
26th March 2019 From India, Kannur
Nothing harm to approach for a legal fight,this is natural phenomena that you birth a baby hence it can't be avoided ,There is a big mistake that school is getting all works from your side besides that they only hide this from board that they have one contract employee who did not qualified for B,ed degree.
In this regards maternity leaves is applicable to you since you are working since past two years and you can challege your order into legal court ,if you wish please approach our NGO :gcwsngo@gmail.com,989977557 eight ,we will spend all expenses for your case ,but keep in mind that your relationship could be sour if you drag them into legal court.
8th April 2019 From India, Gurgaon
Dear Colleagues,
It is amazing to see views have been swinging from being 'Eligible' to 'Not eligible' without even knowing whether the lady consultant teacher has been issued any appointment letter and what are the terms of her employment .
The views expressed are on certain assumptions or conjectures which may be misguiding.
Let the poster share the contents of the appointment letter so that views are expressed after knowing the facts.
Vinayak Nagarkar
8th April 2019 From India, Mumbai
Dear Colleagues,
It is amazing to see views have been swinging from being 'Eligible' to 'Not eligible' without even knowing whether the lady consultant teacher has been issued any appointment letter and what are the terms of her employment .
The views expressed are on certain assumptions or conjectures which may be misguiding.
Let the poster share the contents of the appointment letter and views get expressed after knowing the facts.
Vinayak Nagarkar
8th April 2019 From India, Mumbai
With due respect to the views of all the learned members holding that the poster is eligible for maternity benefit under the Maternity Benefit Act,1961, I would like to add the following by way of rejoinder:
1) The poster has categorically stated that her engagement at the school is that of Pay for Retainer only and the details of compensation mentioned also confirm the same.
2) As such the only question of law now is that whether she is eligible for the statutory maternity benefit available to a woman employed under a contract of service. Admittedly she does not have a "B.Ed" degree to work as a teacher either on regular basis or contract basis which could be under an FTC or through a third party. She could have been hired as a non-teaching consultant but asked to do teaching on and off which the poster could have highlighted in order to gain factual accuracy advantageous to her claim for maternity benefit.
8th April 2019 From India, Salem
Dear Colleague,
Although we do not have full contents of her terms of appointment , from the limited data provided by her , it would be wrong to interpret her engagement in the school as on retainership basis or otherwise.
She is hired by the school on regular basis and her job is to teach students regularly like other teachers for which she is paid consolidated amount every month. She has to attend school every day but she is called consultant.
All this point out to the fact that her services are needed regularly on full time basis and the school is circumventing its responsibility to give her all legal benefits under the garb of calling her Consultant.
In my view, she is an employed person irrespective of what she is designated and if she has worked 80 days' in 12 months' period (this is to be ascertained), prior to her expected date of delivery , she is eligible to MB under the Act.
Vinayak Nagarkar
8th April 2019 From India, Mumbai
Dear Vinayak,
See the write up of Mr. Umakanthan.M,he is well educated and came from the labour department,It is a natural process and not in our hand,finally she is eligible for maternity leave.
Best Regards
Mohammad Sajid Ansari
9th April 2019 From India, Gurgaon
Simple Ans:
firstly please confirm, whether you are covered under esic or not,
If yes you are eligible otherwise not.
15th May 2019 From India, Pune
Interesting reply #22. If covered by ESI, the question does not have arose because she can claim it from ESIC without asking us whether I am eligible or not, and all these confusions have come because she is not an employee but a consultant. Had she been covered under ESI there would be no doubt that there is employee employer relationship because only an employee could be covered under ESI!!!
15th May 2019 From India, Kannur
Lots of knowledge has expressed by many learned members.
3rd June 2019 From India, Jaipur
Dear Poster,
1) You are not an Employee under any condition, you're not eligible for any benefits like a fulltime employee enjoys.
2) Even though Sec.28 of MB Act stretches the limit of coverage of this benefits 0n humane approach, but still that right is in hand of your "Client".
3) Rest, as per the conditions under which you're working as you mentioned are expolitations.
Conclusion: You cant apply for MB.
3rd July 2019 From India, Panvel
The funniest thing is that the person who started the thread has not replied to any of the counters posted by us. Still we open our discussions alive. it is good because it is a learning for all of us.
Two things are important.One is that in order to be called a Consultant, she should be a consultant by all means. You cannot engage a Consultant to teach the students on a regular basis. There can be special sessions by a Consultant but here cannot be regular sessions which can only be handled by a teacher following certain SOP which includes preparation of teaching notes, timely attending the sessions, evaluation etc. It is true that you cannot employ a person without having degree in Education (B.Ed) but that is not an issue as far as labour law is concerned.
Second thing is that a Consultant cannot be asked to follow the day to day formalities which are to be followed by the employees. She is not suppose to come at 9 am and remain in the school till 3.30 pm. You cannot ask her to apply for leaves. You cannot deduct salary if she remains on leave for some days. she will have all freedom to work unlike the teachers on rolls.
In the absence of the above, the appointment as Consultant is only a arrangement to deny the benefits available to the employee under labour laws
4th July 2019 From India, Kannur
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