As employment rights change, has the au pair had her day?

A hundred young women and two men are boarding buses in Dublin this Saturday morning for a weekend trip to Cork. They consider themselves au pairs in the traditional sense. So do their host families. Under Irish law, however, they are employees, as reinforced by the Workplace Relations Commission in a ruling this month.

It said that the host family of an au pair whose pay worked out to less than €5.65 an hour, and who wasn’t paid premium rates for Sundays, was ordered to pay her an additional €2,259 for her time with them from February to May 2015.

As employees, au pairs are entitled to the full protection of employment legislation, and, strictly, families should not only be paying them the national minimum wage – €9.25 an hour since January 1st – but also registering as employers to pay PRSI and so on. At the same time, families are entitled to deduct just €54.13 a week for board and lodging, far below its true value. Minister for Employment Pat Breen has asked the Low Pay Commission to review this; a decision is expected by April.

Unlike many other countries, Ireland has never had a recognised and regulated au-pair programme. So for decades Irish families have been making informal arrangements with young people who come here to improve their English, absorb some of our culture, and help out with minding children and “light housework” in return for board, lodgings and “pocket money”.

The term “au pair” has now strayed beyond its original meaning of an extra pair of hands in this context. Sometimes it’s a byword for cheap childcare, as advertisers on the internet seek “live-out au pairs”. With no registration system, the number working in the country is unknown; estimates range from 10,000 to 20,000.

Streamlined complaints

Migrant Rights Centre Ireland has highlighted exploitation of domestic workers and supported au pairs in bringing cases. The Minimum Wage Act has been in place since 2000. What has changed is the process for complaining about breaches of employment law. It was streamlined when the Workplace Relations Act came into effect, in October 2015.

Since then the centre has assisted in 58 au pair cases, according to its legal officer, Virginija Petrauskaite. Of these, 14 were settled with the families, 12 were referred to the Workplace Relations Commission inspection services, and five have been adjudicated on by the commission; decisions are pending in another four.

“From our perspective,” Petrauskaite says, “au pairs, regardless of what the families’ understanding is, are workers and have to be afforded the rights and entitlements provided by the employment legislation to any of us.”

All of which leaves well-meaning families who try to honour the spirit of the tradition in an invidious situation. Chances are that they’re not fulfilling all their obligations as employers.

SK Dublin, an au-pair agency that is organising that trip to Cork as part of its monthly outings programme, advises families of the commission rulings.

"It is up to families to abide by this," Sean Kavanagh, the agency owner, says. "We are happy to continue placing [au pairs] on pocket-money rates but making families aware that they are taking a risk." For a case to happen, he says, an individual au pair has to make a complaint against a family.

According to Kavanagh, the au pairs his agency places are young people who are happy to have this opportunity for a self-financing stay in Ireland rather than, say, thirtysomethings doing it to make a living. He describes the current situation that families and au pairs find themselves in as ridiculous. “What are we saying to 1,000 Germans on a gap year – that they cannot come here?”

Host families are nervous, says Uta Bean Ui Almhain, who runs a small agency called German Au Pairs for Ireland and places about 20 a year around south Dublin and north Co Wicklow. “They are unsure of what to do. They are also offended by it, really hurt by this decision, the well-meaning families.”

A Berliner who married an Irishman, Ui Almhain recommends that au pairs work no more than 30-35 hours a week and advises that they are entitled to the national minimum wage. But the rate of pay isn’t the only issue. “The whole problem is to call it an employment situation, because it isn’t,” she says. “The relationship is so different when I’m in an employment situation.”

Melanie Leach, who is also German, has always enjoyed having an au pair to help her and her husband, Johneric, care for their son, Eric, who is now 10. In their Co Cork home an au pair works less than 20 hours a week for €100 pocket money, full board and lodging, and free use of a mobile phone. They have had only German au pairs, ranging in age from 17 to 21; three have come back to the family for visits.

Leach accepts that safeguards to protect au pairs from being mistreated are needed, but she does not think that treating them as employees is the solution. “Because of some black sheep the whole thing is turned upside down,” she says. And, she adds, while newspapers cover cases where it didn’t work out, what about all the stories where it works out very well?

From talking to a range of families who have au pairs it’s evident they are frustrated by the State’s failure to support both sides in what they believe is a win-win situation.

Elaine, a mother of three children aged from four to nine, has had four au pairs in recent years. She finds it hard to reconcile the traditional idea of treating them as part of the family with the stipulation that they are employees.

Still, she acknowledges that regulation is needed because the situation is open to abuse. It would probably be best to make it a maximum of 30 hours a week and keep them to caring for children aged at least two, she suggests.

“The lack of certainty and clarification on the legalities of hosting au pairs is certainly putting people off,” Elaine says. “The attraction of an au pair is cost and convenience – that you have a young, fun person to look after your kids.” But if parents are required to make them employees, with all that entails, she says, “Why would you bother?”

Elaine tried to keep within the spirit of the traditional au-pair arrangement, and they were “lovely girls”, albeit hard work at times. But her family does not currently have one. This is “partly due to the current controversy – but also, to be honest, I had enough of having another person that I had to schedule my life around, and I just wanted my own space back”.

Caroline Joyce, managing director of the Cara International au-pair agency, in Castlebar, Co Mayo, is a long-time campaigner for a designated au-pair status.

“We now have a very messy situation,” she says. “Most girls do want to come and learn a language. They do want to be part of the culture of the family.” But with the Government seeing them as workers, “there is no incentive for the families to do that”.

If families offer to take an au pair for a drive or to go out with them for an evening meal, Joyce suggests, it raises the question of whether she is on or off duty. There is also the matter of breaks under the Working Time Act, when workers have a right to leave their workplace.

Joyce is a founder of the Irish National Au Pair Association. As recently as 2013 the group was told by the Department of Justice that "an au-pair arrangement is regarded as a private, voluntary matter between the parties concerned on the basis of a shared understanding. Therefore, such persons are not regarded as employees . . . "

Lack of action

That was then. Now the Department of Jobs, Enterprise and Innovation confirms that there is no separate legal definition of the term “au pair” in Irish legislation. So individuals described as one are not exempted or treated as separate categories of workers under employment law.

The decision by the Workplace Relations Commission does not constitute a change to existing employment law, a spokeswoman says. “There are no plans to review the status of au pairs with a view to deeming any persons found to have employee status to be outside the scope of employment law.”

Lack of action on an au-pair programme has, says Joyce, “created a really difficult situation” for families and au pairs alike. Within the past week she has been contacted by three au pairs (none of them clients) who say they were kicked out by families and are wondering what to do next.

In all the discussion of workers’ rights and the difficulties for families seeking flexible, affordable childcare, Joyce also feels strongly that the lack of vetting is being overlooked, which puts children at risk. Au pairs coming in through internet agencies or Facebook connections may not undergo any police or medical checks.

"Au pairs should be Garda vetted, yet many are not, because au-pair agencies are unregulated," agrees Tanya Ward, chief executive of the Children's Rights Alliance. "Equally, we know that some au pairs coming to Ireland are employed through agencies outside the country."

Even though many au pairs are “doing a brilliant job caring for children”, Ward adds, “they need child-protection training, which is usually not provided”.

A private member's Bill on au-pair placement, introduced in the Dáil last year by the Fianna Fáil TD Anne Rabbitte, proposed the establishment of an independent public authority for the accreditation of au-pair agencies, as well as registration of au pairs with agencies here and exemption from employment law, with conditions attached to their treatment by host families.

“The person that’s coming on the cultural educational exchange is not coming here to clean your toilets,” says Rabbitte, who is also her party’s spokeswoman on children and youth affairs. Her Bill was defeated on its second reading last July.

Rabbitte wonders where the philosophy of au pairing as a cultural-exchange programme was lost in modern Ireland. She believes that successful placements are continuing but that families are breaking the law.

“If you have an employer-employee relationship and they are staying under your roof, they are really working 24/7,” she says. But the law is being enforced only after relationships break down.

She fears that some well-intentioned families, unaware of their obligations, are going to be made to compensate au pairs.

Still, Rabbitte says, “the ones who have to fork out” are the ones “who did have somebody scrubbing the toilet or doing the hard chores – so they should”.

HOW TWO AU PAIRS FOUND WORKING FOR AN IRISH FAMILY

“I was totally lucky with my family”

Paula Drinkewitz

, an 18-year-old au pair from Germany, says she’s very happy minding a five-year-old child for a family in Arklow, Co Wicklow. She works between 30 and 36 hours a week for €120 pocket money. “But working with a child, you can’t really count it in hours,” she says.

Before coming to Ireland, last August, she heard from a friend that, unlike in Germany, there is no regulation of au pairs here, but that didn’t put her off. Drinkewitz wanted an English-speaking country and was also keen to get to know Irish culture. “This idea of going to the pub and everyone singing and drinking,” she says, “I wanted to see that and live like that.”

Although her friend was afraid that a family could exploit her in the absence of an au-pair programme, and decided to go elsewhere, Drinkewitz looked for a good organisation to help her and was happy to pay for its services. “I really invested something in this,” she says. “That is why I didn’t have this fear. I always have a number to call in an emergency, and I was totally lucky with my family.”

The German organisation she went through partners with SK Dublin, and she says she’s really glad that this agency, based in Wicklow, organises monthly outings for au pairs, so she can see other parts of Ireland.

At 18 she wants to spread her wings. But au pairing, she says, allows her “to still have a family life but without being in my own home”.

“I wanted to forget what happened”

“Camila”, who is not from the EU, was already in Ireland when she heard from a compatriot returning home that the family was looking for a replacement au pair.

Out of a job at the time, and on holidays from college, Camila contacted the family, who have two children, and was interviewed by the mother. It sounded perfect, she says, as she was told it would involve caring for the older child after school each weekday; the baby would be going to a creche.

A payment of €120 was promised, along with board and lodgings, and she believed the hours would not exceed those permitted under the terms of her student visa: 20 hours a week during term time and 40 hours a week during holidays.

In reality Camila had to get the child ready for school in the morning, the “creche” turned out to be a playground, she says, and there was no question of her being able to leave the baby there. She ended up caring for the children 11 hours a day, or 55 hours a week.

Although she wanted to quit, and then she became ill, Camila stayed for three months, as it took the family a while to find a replacement. The children were great, she says, and she has no complaints about the way the parents treated her other than the fundamental issue of long days, which also meant she ended up being paid just over €3 an hour.

After Camila left, she says, “I wanted to forget what happened.” But she later contacted Migrants Rights Centre Ireland, which told her that she was entitled to the minimum wage. The centre’s position is that the workers have to be paid for the hours worked regardless of immigration status.

“It is not right and fair for the employers to create the illegality to benefit themselves, and then claim that illegal contracts are not enforceable to defeat a valid claim,” says its legal officer, Virginija Petrauskaite.

With the centre’s help Camila came to a financial deal with the family. She is now happily working three hours a day elsewhere, for €10 an hour, as a live-out childminder.