Understanding Section 11A of the Maternity Act: Why Creche Rules Matter for Factories with 30+ Women Workers

Dear Seniors, please explain the following. I am not able to understand.

Section 11A of the Maternity Act and its Implications

Section 11A of the Maternity Act safeguards the intent of Section 48 of the Factories Act, 1948, which requires factories with more than 30 female workers to have a creche. Therefore, even if a factory has fewer than 50 employees but has at least 30 females, such a factory will be under the obligation to have a creche under the Factories Act, 1948. Further, if Section 11A of the Maternity Act had been framed to be applicable to establishments with 50 or more female employees, then Section 48 of the Factories Act, 1948, would have lost its effect as factories having more than 30 women workers but less than 50 women workers would have done away with the compliance of having a creche.

Dear Abhiram, the Maternity Benefit Act, Factories Act, and ESIC Act are all separate and exclusive acts. The ESIC Act only absolves employers' responsibilities in terms of maternity benefits prescribed under the Maternity Benefit Act. Your confusion is valid as through the last amendment, the Maternity Benefit Act has made a compulsory provision of a creche where there are 50 or more employees—note that the word "employee" is used and not "female employee." I'm not sure if any clarification has been provided regarding this oversight.

Creche Provisions Under the Factory Act

The Factory Act specifically mentions that a creche should be provided wherever there are 30 or more female workers engaged (this includes contract workers as well). For both acts, the competent authority is the Factory Inspector. You may follow the provisions of the Factories Act until further clarification by your state either through rules or notifications has been issued.

Regards, Shailesh Parikh

[Phone Number Removed For Privacy-Reasons] Vadodara

Dear colleagues,

In a factory (as defined under the Factories Act 1948), a creche is required if there are 30 female workers engaged by the occupier. It is not necessary under this provision that all 30 should be married or that one is requiring the facility of a creche, but the law demands that a creche is a must. Similarly, by reading the MB Act notified and applicable effective 1st April 2017, if there are 50 employees (male and female together included) in any establishment, then a creche facility is a must. This provision is specially introduced for establishments registered under the Shops and Establishments Act 1948. Therefore, we have to be clear with respect to both enactments, which are different and separately made applicable—one for factories and the second for workplaces under the ambit of Shops and Establishments but clearly unrelated.

So, if you are a factory manager and you have a requirement of a creche because more than 30 females are engaged, then you should have a creche. In your corporate office, which is registered under the Shops and Establishments Act, suppose you have 32 female employees working with only 15 male employees (total strength is 47), then a creche facility is not to be provided at the corporate office because the total employee strength is less than 50, even though the female strength is more.

Take a different case where in another situation, even if 1 female employee is working in any office registered under the Shops and Establishment Act, with 52 male employees (total 53), then a creche has to be provided as the total strength is more than 50 employees. These situations are embarrassing and an example of unmindful live acts on the part of the government. Objectivity is something; enactments are causing a direct impact on women employment. Who will engage 1 female among 52 and maintain a princely creche for?

Workplaces registered under the Shops and Establishments Act are not inspected under the Factories Act by Factory Inspectors. Such establishments are inspected by Labour Enforcement Officers.

From reading both of the above, it is evidently clear that the government has taken hasty steps that would cause a drastic reduction in women's employment, making available a pool of talent unutilized.

Thanks and regards,

Understanding the Amendment of the MB Act

I suppose we need to understand the intention behind the amendment of the MB Act. In today's context, where we have both parents working or the possibility of a single parent, the need for a creche is not limited to the female parent. Hence, the act has been amended to include 50 employees and not restrict it to any gender.