International Labor & Employment Law Committee Newsletter

Issue: September 2012

Editor: Tim Darby | European Editor: Paul Callaghan | Latin America Editor: Juan Carlos Varela | Canada Editor: Gilles Touchette | Asia and Oceania Editor: Ute Krudewagen

India, Page 1

Casual Female Workers Are also Entitled to Employee Maternity Benefits, Madras High Court Rules

StutiGaliya, Khaitan& Co, Mumbai, India

Casual workers are entitled to maternity benefits under the Maternity Benefit Act, 1961 (the Act) like other female workers, and the time spent on maternity leave does not interrupt seniority for purposes of determining whether the employee is entitled to regularization of her job (that is, hire as a regular employee), the Madras High Court confirmed.1 This is in line with the spirit of recent legislative developments in India regarding protections for female workers such as the proposed amendments to Indian law that would prohibit any termination of a pregnant employee on any ground and proposals to increase the duration of maternity leave.

The Act applies to every woman employed, whether directly or through any agency, for wages, in any establishment. The Act does not differentiate between casual, permanent or temporary female employees. Accordingly, all female employees are entitled to maternity benefits as provided under the Act.

The Madras High Court held that pursuant to Section 5(2) of the Act, female employees who have rendered more than 80 days of service during 12 months preceding the date of expected child delivery are entitled to 12 weeks of maternity leave with wages. The Madras High Court relied on the judgment delivered by the Supreme Court in Municipal Corporation of Delhi versus Female Workers (Muster Roll) and Another,2 in which the Supreme Court held that the Act is also applicable to casual workers and daily wage workers. The Madras High Court also held that the time spent on maternity leave does not interrupt an employee's services for determining whether she is entitled to regularization of her position (i.e., treating the worker as a regular employee for the purposes of benefits, leave, etc). Accordingly, it directed the department to reinstate the plaintiff within two months and to regularize her job, in addition to paying her the monetary benefits from the date of regularization.

1L Kannaki versus The Secretary to Government Animal Husbandry and Fisheries Department, 2012 (133) FLR 48.

22000 (3) SCC 224.

Total Ban on Employing Children Under 14 Years Old Expected

Veena Gopalakrishnan and Vikram Shroff, Nishith Desai Associates, Mumbai/Bangalore/Delhi

A ban on all forms of employment of children under the age of 14 years is expected in India, per a proposal that the Union Cabinet recently cleared. Currently, the Child Labour (Prohibition and Regulation) Act, 1986 (Child Labour Act) permits children under the age of 14 years to work in "non-hazardous industries," including activities such as agricultural work, forest gathering, etc., while onlychildren over 14 years of age can be employed for hazardous work.

If the Child Labour Act is amended in accordance with the proposal, employing a child under 14 years of age for any work would be an offence punishable with imprisonment up to a maximum duration of three years and/or a fine up to INR 50,000 (approx. US$1,000). The move is in line with the Government's obligation to meet the International Labour Organization's 2016 deadline for the abolition of the worst forms of child labor.

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