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Au Pair wins test case as 'employee'
Posted by SchoolDays Newshound on 09/03/2016.
Tags: Parenting
A landmark case involving a spanish au pair has resulted in a host family being ordered to pay her over €9000 in back pay and compensation for a five month period she spent with the family.
The Migrant Rights Centre Ireland (MRCI), which supported the au pair to take the case, has welcomed the landmark decision. MRCI Legal Officer Virginija Petrauskaite said, “This judgment sends a very clear message: au pairs are workers, and any family employing an au pair must abide by employment laws – including the National Minimum Wage Act. The au pair at the centre of this case was paid just €100 a week. Unfortunately, her case is not an exception; in fact we know many au pairs whose treatment was much, much worse. The work done by au pairs and other childcare providers is absolutely essential to families, communities and the economy, and this landmark decision and award is a clear statement that it has value.”
The family was found to have breached aspects of the National Minimum Wage Act, the Organisation of Working Time Act, and the Terms of Employment (Information) Act, and was ordered to pay a total of €9,229 to the au pair.
In response to the judgment, the au pair stated: “When I arrived at the Migrant Rights Centre I was exhausted, depressed and weak. It has been a long process, and many people there worked on my case; finally I have found the reward and respect that I needed. Without all those people, this would be impossible.
The Irish Examiner reports that forty similar cases are pending, including one involving a claim for €35,000 by an au pair who completed a two-year placement with an Irish family.
The ruling by the Workplace Relations Comission means that au pairs have been classified as employees and are therefore entitled to the minimum wage, holidays, rest periods etc just like any other employee. Up until now, Au pairs had been considered by many as being outside standard formal employment arrangements with pay being termed pocket money.
It is estimated that over 20,000 households in Ireland use Au Pairs and these families will now be expected to register with Revenue as employers and pay full wages if they take an au pair into their home.
Will you be affected by this decision? Post your comments below
minderofchild
(25-03-2016 16:53)
I fully understand your aupair not being able to take an offered creche position and support herself...sure this is the normal for majority childcare workers in Ireland.
What private paying family can cover the cost of their childcare expenses other than to pay it directly from their wages. If using a childminder or employing an nanny while engaging in the rent a room scheme allows you and others to do this then brilliant. However if you do the maths a parent has to sell alot bedrooms in order to cover the true cost of a fulltime childminder/nanny so the families who are abusing an aupair with two or more kids are ones feeling the shock. You'll see alot families using the 54 calculation.
No one can condone the abuse of aupairs. The simple fact is too many are providing full time childcare. Also many aupairs are well into their late 20s/30s and not attending English classes at all. When this story broke it was mainly abuse stories and people welcoming the ruling on social media...
Agreed Irelands lacking of clarification/enforcement is what has led to the ruling but it will be interesting to see how many will be signing the online petition fighting for aupairs I see ongoing at the moment.
minderofchild
(10-03-2016 18:30)
My feelings are based on fact iv seen aupairs being used and abused but also children being used and abused, often put in dangerous situations by uninterested and unexperienced aupairs. Revenue currently allow approx 54 towards bed/board so no need enter rent a room etc. I equally can't see your point why an aupair can't work like a nanny/childminder who would meet with playdates/socialising with their mindees as part of their normal working duties. Equally many nannies have extra duties wrote into their contact and both sides are happy. I would welcome the points you spoke of "wider ripple effect" "most affected who are in Ireland illegally as aupairs" as a positive step. Families, who can't use an aupair (no spare room etc) have always faced that dilemma of whether there is the justification of working vs. childcare costs...aupairs can not be confused with live in nannies or live out nannies and this is what has happened in this country, some aupairs were simply taken advantage of...
Grainne Heneghan
(10-03-2016 12:35)
I will not be affected as much as others because I can work while my children are in school but I will be affected. However, I believe that the ruling will have a much wider affect on au-pairs. It seems I'm now faced with two choices: either register as an employer and keep my au-pair or let my au-pair go. With the first choice it's not a problem for me to register as an employer but as the au-pair is now going to be an employee she can no longer live free in my home. She will have to pay for her board and lodgings including a share of bills as she's here alone during the daytime. She will not be allowed to contact family, other au-pairs etc. during working hours as would be the case in any other employment. I will look into whether I have the right as her employer to get her to now do other duties outside of child-minding during her working hours. I will claim relief under Rent a Room scheme which allows me to rent a room tax-free for up to 12,000 per annum. My au-pair is likely to now be coming out with much less money weekly and may not be able to afford to stay in Ireland. If I choose to let my au-pair go she will lose the money she has paid towards her English classes. The college will also lose a student as she'll have to drop out of class and return home to her country where it's very unlikely that she'll find work. My au-pair had already decided to stay on in Ireland when she finishes up as au-pair later on this year but it's unlikely now that she'll be able to continue to save towards this. In fact, two of my previous au-pairs now live permanently in Ireland. I think this ruling is going to have a much wider ripple effect and those most affected will be people who are in Ireland illegally as au-pair, colleges where au-pairs attend to learn English and possibly the employment sector in Ireland. If families currently using au-pairs cannot afford to pay for fulltime childcare and cannot afford to register as an employer, their only other choice may be to give up work....
escuelita
(29-03-2016 16:10)
A point of importance re the above discussion.
The EU Au Pair programme was never ratified by Ireland since it was published in 1969. This is central to the problem. Au pair 'agencies' have been offering this service despite it always being illegal in Ireland. The government have been made aware [ref Dail questions 2015] but chose to bury the head! There is a solution for hard pressed but caring families to join with genuine foreign students.
Grainne Heneghan
(25-03-2016 10:06)
I take your point that some au-pairs are taken advantage of in this country, however, it is not only in this country that they are taken advantage of. My current au-pair was in the UK before coming to Ireland. She worked there from 7am-11pm and was expected to help out on her days off...The "European Agreement on Au Pair Placement", was passed by the Council of Europe in 1969. I am currently trying to get hold of a copy of this agreement, however, I would imagine that it sets out terms and conditions relating to having an au-pair in all European countries including Ireland. The ripple effect I talk about is both positive and negative. If families cease to host au-pairs the colleges in Ireland teaching English to these au-pairs will lose out as the au-pairs will choose to go to other English speaking countries to learn the language. Almost all of my au-pairs socialise in the city centre every weekend with a large group of other au-pairs or they avail of day or weekend tours around Ireland during the weekends, if there are less au-pairs to socialise and visit the Irish countryside this will also be less money into the economy. My current au-pair was recently offered a permanent job in a crche here. She turned the job down because she could not afford to live in Ireland in rented accommodation while receiving the minimum wage. My au-pair is due to finish up in June. I am seriously considering not getting another au-pair. Instead my 'better' option is to get a childminder who is already living in Ireland. I can then rent out the au-pair's bedroom with ensuite, tv. etc. under the 'rent a room' scheme where homeowners can earn up to 12,000 tax free..... thus covering my childcare costs completely