Is it au revoir to the au pair?

Monday, March 14, 2016

As published in the Sunday Business Post 13 February 2016

Will the ruling that au pairs must be paid the minimum wage make the country’s childcare crisis even worse?

Last week’s ruling that live-in au pairs are entitled to the minimum wage will have come as a rude awakening to many families who never previously considered themselves employers.

A practice that has long been viewed with complacency as a cultural exchange is in the spotlight following the Workplace Relations Commission’s €9,229 award to a Spanish au pair who said she was exploited as “cheap labour”.

The Migrant Rights Centre Ireland has called the ruling a “landmark” decision – not because it marked any change to the law (it is not the first decision of its kind) but because of the widespread publicity it attracted.

But now that awareness has been raised, will the practice of having a live-in childminder for around €120 per week come to an end amid what can reasonably be called a childcare crisis?

Will families fork out €9.15 an hour with a weekly deduction of €54.13 for room and board? And will au pairs be more inclined to stick up for their rights?

Welcome to Ireland

The fact that there are an estimated 20,000 au pairs working in Ireland suggests they are a lifeline for struggling parents who frequently turn to the grey economy to meet their needs.

Creche fees are on average over €1,000 per month, which is roughly twice the going rate for an au pair. If host families step up to their obligations, a 30-hour week at minimum wage with deductions for board will work out at €882.

A quick trawl of aupairireland.ie throws up 3,000 jobseekers, mostly from Europe and Brazil, looking for host families. It is one of several online operators in the sector. The website offers live-in or live-out au pairs, and candidates can specify if they are prepared to work with special needs children or as an elderly companion. Wage demands are not listed.

Maria* from Spain recently landed her second au pair job in Dublin, having advertised on the website and Facebook. The first was a stressful experience. The 23-year-old worked up to 50 hours, looking after two children under the age of eight who she found difficult to manage, for €140 per week. She did extra babysitting and carried out household chores such as mopping the floor and cleaning the toilets. She had weekends off.

The mother of the family cooked dinner on weekdays but otherwise the fridge was largely out of bounds. “I was told I couldn’t touch a lot of things. . . ‘you can’t touch the strawberries, they are for the children’. The mother swore and shouted at the kids a lot, which was stressful.”

Maria’s new host family has been more welcoming but again the work is full-time and the money has gone down to €120 per week.

“It’s better but I feel the family don’t pay me good money,” she said. Maria is aware of last week’s employment law ruling and indicated that she might request higher pay – maybe €140 as before – but nothing like the minimum wage. It seems unrealistic to her. She is here to learn English and when she is sufficiently fluent, she hopes to get a different job and rent a place to live.

Marleen Kuip from the Netherlands worked as an au pair in Dublin for ten months in 1995 and 1996. She was placed through an agency and worked for 30 hours a week.

“For me the main reason to become an au pair was to learn a new country and to improve my English. Joining a family is a very good way to learn,” said Kuip.

In Kuip’s view, introducing minimum wage for au pairs would miss the point. As an au pair you should be part of the family, she said.

“You don’t need to pay for a house and your food so you don’t need a full salary. What if you would get a full salary, will the family then charge you for food and rent?” she said.

The cultural experience

Families and the agencies that place au pairs in Irish homes are against a minimum wage standard. Evelyn Hanrahan lives in Limerick city and has been taking in au pairs since 2012. Her children are 11 and 12 years old and her au pair, Sheila, typically works two hours a day and is paid €100 a week.

“My understanding is that it’s very much what they put into their cultural experience is what they get out of it,” said Hanrahan.

“The whole idea is that you’re coming to Ireland to experience culture, to improve your English.”

Hanrahan said she insists her au pairs attend English language classes. When it comes to housework, the au pair has very little responsibility.

“It’s purely throwing the quilts on the beds and picking up a few bits of laundry. She’s free most weekends unless she does a small bit of babysitting for me. If she’s not free for the whole weekend, she’s always free on either a Friday or Saturday night. Then they always have Sunday [free],” she said.

If Hanrahan had to pay her au pair minimum wage, the relationship in the household would change, she said. “Financially here if it becomes an issue, unfortunately for Sheila she’ll go home,” she said.

“I’ve done things like pay forward for her gym membership and her English school fees so she can pay me back. If somebody is an employee, it’s different. The view I would take is what I give her is pocket money. If they’re an employee, I would see it like if the job is done at the end of the day, then goodbye,” she said.

Ian Crowe, who has had au pairs in his home since 2013, feels the same. He said the au pair becomes integrated into the family. He also pays au pairs €100 a week.

“The most hours they might do in a week might be 30 hours, but it’s usually far less,” said Crowe.

“We pay for their public transport and I would drive them to social events. It’s like an older child or an older sibling. I wouldn’t have them doing [heavy]housework. Their primary role is to help around the house and help with childcare. You’re not going to have them cleaning the toilet.”

The legislative loophole

Agencies believe the problem for au pairing arises from a legislative loophole and a lack of understanding of what the role is.

Fiona Byrne, owner of the Shamrock Au Pair Agency, said she has never had complaints from au pairs about pay.

“It’s a loose fee for them. They’re here to improve their English so there are never questions about the amount they get.”

That said, Byrne said she had observed cases of abuse, particularly with illegal migrants.

“I know one girl who eventually came to me had been relocated three times. Before she came to [my agency]she was with a family in Northern Ireland. She didn’t have her own bedroom and she was expected to share with one of the children. She didn’t even have anywhere to put her clothes,” said Byrne.

“Then she went online and found a family in Dublin, where the mother and children were really nice, but the dad kept commenting on her size, what she ate and the way she was dressing. You hear stories of girls that are working up to 60 hours and are left with the children all day. With another girl, she was in a house where when the parents went to work they locked the fridge so she couldn’t have food.”

Without a definition of what an au pair is the system is open to abuse, said Claire Marty, president of the Au Pair Agencies Council of Ireland and owner of au pair agency ABC Languages. She has been lobbying for regulation for three years, she said.

Ireland is one of the few EU countries which has not signed the European Agreement on Au Pair Placements, which was opened for signatures on November 24, 1969. Almost 50 years on, au pairs in this country remain in a precarious position as far as law is concerned.

“Now that you have online platforms, host families can find an au pair online and there’s no-one controlling the placement,” said Marty.

“The fact that we don’t have a legal definition of what an au pair is leaves the door open to abuse. If we don’t know what an au pair is, then people ask au pairs to do the work of a childminder. And they use the term au pair while they’re employing a full-time childminder.”

Fighting back

A 2015 survey of 554 so-called “au pairs” by Migrant Rights Centre Ireland (MRCI) found 15 per cent were aged between 31 and 35 compared to 10.5 per cent between the 18 and 20 years old.

A fifth had paid to get the job, nearly a third worked more than eight hours a day and more than half were paid less than €120 per week.

MRCI is currently handling 42 employment complaints from au pairs. Legal officer Virginija Petrauskaite is hopeful that many can be resolved informally, particularly in light of the Workplace Relations Commission’s ruling.

“The decision was crystal clear. Au pairs are considered workers. They are taking care of children which is a huge responsibility,” she said.

Petrauskaite is keenly aware of the pressures facing parents of young children. “I do understand there is a huge crisis of childcare. The price is through the roof but I don’t think exploiting vulnerable workers is the solution to this problem,” she said.

* Maria’s name has been changed to protect her identity

Have an au pair? Welcome to the employers’ club

What should you do now if you have an au pair? Patrick Walshe offers some legal advice

There are a number of lessons to be learned from last week’s Workplace Relations Commission decision in the case of a Spanish au pair, chief among them being that someone who works for you is almost inevitably going to be deemed to be your employee.

There are limited exceptions. Unpaid interns, for example, may not be employees, and the same is likely true of volunteers. But if someone provides services of value to you in return for pay, they are an employee.

So what do you have to do if you have an au pair? Here are the factors to bear in mind.

• Unless they’re under 18 or are in the first couple of years of employment, an employee is entitled to be paid the minimum wage. At the moment, this is €9.15 an hour. There are limited exceptions to the general rule but an adult au pair working in your home will be entitled to the minimum wage (and can bring a claim if they aren’t being paid at that level). If you aren’t already paying at least the minimum wage, you need to consider increasing the au pair’s salary immediately. You are, however, allowed to make deductions in respect of food and board.

• An employee over 18 can’t be expected to work more than 48 hours on average each week. In the Spanish case, the au pair was apparently working up to 60 hours some weeks, which is a definite no-no. If you expect your au pair to routinely work more than those hours, you’re at risk of a claim. You need to carefully monitor the hours your au pair is actually working.

• An employee is entitled to regular daily rest breaks and days off. If your au pair works for six hours straight, for example, they’re automatically entitled to a 30-minute break.

• They’re also entitled to days off during the week and, most significantly, to at least 20 days paid leave for every year worked (and they have a pro rata entitlement where they only work part of the year). Employers are expected to maintain records of hours worked and holidays taken etc, and you should ensure this is done even in the case of an au pair.

• All employees are entitled to a written statement of terms and conditions of employment – and anyone employing an au pair is equally obliged to fulfil this obligation. The statement needs to cover core aspects of the relationship, including things like the rate of pay and working hours. If you haven’t provided this, again you’re at risk of a claim.

• In reality, you are probably better off putting some sort of simple contract of employment in place with your au pair. That will assist in clearly identifying each party’s rights and obligations and will make it difficult in future if the au pair tries to argue that something isn’t agreed (additional duties to just looking after the children, for example).

• All employees are entitled to minimum notice periods, so if you intend to dismiss an au pair, you have to give them a fixed minimum period of notice of dismissal. This ranges from one to eight weeks depending on length of service.

• An au pair – like any other employee – is entitled to enhanced rights once they have 52 weeks of continuous employment. That means that their dismissal is automatically deemed to be unfair and you’ll have to prove otherwise if you want to dismiss them because the au pair isn’t doing the job properly, for example.

• You’re responsible for the health and safety of your employees, so if the au pair is exposed to any danger in the workplace, you’ll be responsible. This goes beyond physical risks – if an au pair is stressed or harassed, there’s the potential for a claim to exist too.

• Anyone employing an au pair should immediately take stock of their situation, with reference to the criteria set out above. If you are compliant with law in all of these areas, it’s much less likely that you’ll be the subject of a claim.

Patrick Walshe is a partner and employment law expert at Philip Lee.