Au Pairs – Employees or Not?

Au Pairs - Employees or Not? | Gaffney Solicitors Cork

A Spanish childminder who won a landmark case against an Irish host family to be treated as an employee has said she hopes au pairs will “no longer be exploited as cheap labour”. The woman, who wishes to remain anonymous, took a case to the Workplace Relations Commission on a number of employment grounds.

The Workplace Relations Commission made an of €9,229 award to the Spanish woman on the grounds the family breached aspects of the Minimum Wage Act, the Organisation of Working Time Act and the Terms of Employment (Information) Act. She had been paid €100 per week plus board and lodging equal to €54.13 a week and worked for the couple for a total of 25 weeks. In all, she worked 490.5 hours. She worked from 7am to 11am on Mondays and Fridays and on Tuesday, Wednesday and Thursday from 7am to 11am and from 3pm to 5.30pm. A rights commissioner found the woman’s complaint that she had not been paid the minimum wage of €8.65 an hour was “well founded”. The commissioner awarded the woman €3,829 in arrears of wages, being the difference between the wages paid and the wages she should have been paid.

She was also awarded €400 under the Terms of Employment Act as she had not been provided with a written statement of her terms and conditions. The rights commissioner also found the employers had breached the law in relation to annual leave and ordered that they pay the woman €5,000 in compensation. Speaking following the judgement, Fianna Fáil’s jobs spokesperson Dara Calleary said the next government needs to carefully examine the ruling. “Au pairs are currently working in up to 20,000 Irish homes. This situation has arisen because more and more parents are relying on au pairs as primary childminders due to the soaring costs of childcare. “The authorities should examine the idea of introducing a definition of the job and responsibilities associated with au pair work. This will help prevent any exploitation for people employed in such a role.”

The Migrant Rights Centre Ireland (MRCI) brought the case on behalf of the young woman, who wishes to remain anonymous. The MRCI says that it is supporting another 1,000 au pairs and has up to 40 cases pending at the WRC. Of the cases currently pending one involves a claim for €35,000 by an au pair who completed a two-year placement with an Irish family.

Despite the concerns following the WRC case, it has actually brought about no change in the law. There is no legal definition of “au pair” nor is there for “childminder” or “nanny”, the Department of Jobs said last night. “Ireland’s body of employment rights legislation protects all employees who are legally employed on an employer-employee basis regardless of what title is given to them,” it said. The WRC decision “does not constitute any change to existing employment law”.  

Under Section 1.1 of the Terms of Employment (Information) Act, 1994 an “Employee” is defined a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956 shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the Local government Act,1941 a harbour authority, a health board or a vocational education committee shall be deemed to be an employee employed by the authority, board or committee, as the case may be.

Certainly this is an area of employment requiring greater clarity and transparency for all concerned. It shall be a matter for the Government to decide whether or when to bring in appropriate legislation to define the role of au pair and the type of duties associated with such roles so that such workers are not taken advantage of.

 

 

 

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