Changes in Labour Rules will actually reduce maternity benefits
Very recently, the Labour Rules, 2015 has been amended, introducing as many as 101 changes. The 2015 Rules are meant to supplement the Labour Act, 2006, which authorises the government to formulate rules in order to enable better implementation of the Act. By adopting the Rules, the relevant ministry mostly set out detailed procedural provisions to facilitate implementation of the substantive provisions of the parent Act, and as such, Rules cannot override any provisions or curtail any substantive right given in the Act. However, right after the amendment to the Labour Rules was published in an official gazette, several workers' rights groups and activists expressed dissatisfaction over a number of new inclusions. In particular, the changes brought to the provisions related to maternity benefits deserve careful scrutiny as they have potentially curtailed the substantive rights given in the Labour Act.
Over the past decades, poor implementation of provisions related to maternity benefits in the Labour Act has been emphasised in several forums. A number of studies highlighted complaints such as non-payment of maternity benefits, threat of dismissal, forced resignation on condition of joining again after giving birth, etc against expectant workers. Lack of breastfeeding breaks, nursing facilities and antenatal medical care at workplaces has also been highlighted in several reports in the past. It was naturally expected that the new amendment would perhaps address these concerns in the Rules, so that the maternity benefits prescribed under the Act could be more effectively enforced. The amendment did, in fact, introduce a positive provision by allowing four weeks' leave in the event of miscarriage. However, to the surprise of many, the amendment has introduced a new method of calculating maternity benefits, which in practice has the potential of effectively reducing the amount that the workers were otherwise entitled to under the Labour Act.
Under Section 48 of the Labour Act, to determine the amount of maternity benefit, the daily average wage has to be calculated by dividing the total wages earned by a worker during the preceding three months from the date on which she gives notice of pregnancy, by the number of actual days of work during that period. As such, all days of leave that a worker was entitled to get in the three-month period under the Act would be excluded from the actual days of work, while the wages paid for those days of leave would be added to the total wage count. In addition, payment for overtime in the past three months would also be added to the total wages of the previous three months. The new Rules, however, provide that wages of only the month immediately preceding the maternity leave would be taken into account and that, too, would have to be divided by 26 days – not the actual days of work – to determine the average daily wage.
As such, under the new Rules, on the one hand, in calculating the average daily wage, the days of paid leave are not counted as the total days of work are fixed at 26. Additionally, in the month immediately preceding the leave, chances of working overtime is also less as the worker is in her last trimester. Thus, applying the new method, the average daily wage would be naturally much less than what it would be previously.
Under the Act, workers on maternity leave are entitled to get maternity benefits for a period of eight weeks preceding the expected day of her delivery, and eight weeks immediately following the day of her delivery. The Act further provides that an employer shall not knowingly employ a woman during the eight weeks immediately following the day of her delivery. The new Rules, however, added another provision stating that if any worker on maternity leave delivers her child later than the specified date in the preceding eight weeks, those additional days would be adjusted with the following eight weeks of the maternity leave. The provision does not clearly state the purpose or method of such adjustments, and this ambiguity may create scope for the employers to reduce the mandatory two-month post-delivery maternity leave in breach of the clear provision in the Act.
Some prominent workers' leaders expressed that the workers were not aware of such changes before they were published in the official gazette, and that the workers' written demands of specific changes to be brought into the Rules were also mostly ignored. Lack of unbiased and inclusive procedures in forming the drafting committees for amending the laws was also pointed out by a number of worker associations' representatives. What is particularly odd is the absence of female representation in the amendment of Rules, especially when such important decisions have serious impacts on female workers' participation. A larger level consultation beyond the drafting committees is also warranted when such significant changes are proposed.
It is crucial that the laws and policy frameworks are sensitive towards the rights of maternity protection, and there is effective implementation of the laws. It is essential that this new amendment is reviewed, taking into account the voices of the workers, to ensure a congenial work environment for women so that they do not have to quit employment for child-bearing. Instead of stepping backwards, we need to explore avenues where the existing challenges in ensuring maternity protection can be more effectively addressed, implemented and monitored.
Taslima Yasmin is associate professor at the Department of Law of Dhaka University.