The Workplace Relations Commission (WRC) recently considered employment law compliance when engaging au pairs in Ireland. Although the official judgment has not yet been published by the WRC, the Migrant Rights Centre Ireland (which supported the claimant in bringing her case) has stated that the judgment makes it clear that au pairs are workers and therefore families must abide by Irish employment laws when engaging them.
Decision
The claimant, a Spanish au pair, worked for a family and cared for the family’s children. The claimant was paid €100 per week in addition to her board and accommodation which was valued at €54.13 per week. The claimant worked a total of 490.5 hours over a period of 25 weeks.
The claimant brought a case to the WRC on the basis that the family was in breach of a number of employment laws.
The WRC found that the claimant had not been paid the minimum wage of €8.65 per hour (the rate at the time), in accordance with the National Minimum Wage Act 2000 and awarded her €3,829 in arrears.
The claimant was also awarded a further €400 on the basis that she had not been provided with a written statement of her terms and conditions of employment in accordance with the Terms of Employment (Information) Act 1994-2014.
In addition, the WRC found that the family had breached the annual leave provisions provided for under the Organisation of Working Time Act 1997 and awarded her a further €5,000 in compensation. In total the claimant was awarded €9,229.
The National Minimum Wage Act 2000
The current national minimum wage in Ireland for an employee who is over the age of 18 and who has two or more years’ employment experience in any type of employment is €9.15 per hour. Employees are only entitled to a lower hourly rate of pay where either:
- The employee is under 18 (€6.41)
- The employee is in their first year of employment over the age of 18 (€7.32)
- The employee is in their second year of employment over the age of 18 (€8.24)
- The employee is engaged in a structured training course during working hours
This Act provides that, for the purpose of calculating the minimum wage, board and lodgings provided by a family can be included at the following rates:
- €54.13 for full board and lodgings per week or €7.73 per day
- €32.14 for full board only per week or €4.60 per day
- €21.85 for lodgings only per week or €3.14 per day
The Terms of Employment (Information) Act 1994 – 2014
Section 3 of this Act provides that employers must provide employees with a written statement of the terms of employment within two months of the commencement of employment. Employers are required to keep a copy of the statement of terms for the duration of the contract and for at least one year following termination of the contract.
The Organisation of Working Time Act 1997
Employees are statutorily entitled to 4 working weeks of paid annual leave in addition to nine public holiday days. Any annual leave provision over and above 4 working weeks is at the discretion of the employer.
Annual leave entitlements will continue to be accrued while employees are on sick leave, maternity leave, adoptive leave, parental leave, force majeure leave and carer’s leave.
Lessons
As a result of the decision, au pairs will likely be deemed to be employed by the families that engage them. Accordingly, those who have an au pair should bear the following in mind:
- Au pairs who are over the age of 18 and not in their first two years of employment are entitled to be paid at least €9.15 per hour. Families are entitled to make deductions in respect of food and board in line with the amounts outlined above.
- Au pairs must not work more than 48 hours per week or an average of 48 hours per week calculated over a four month period.
- Au pairs should be provided with a written statement which covers the core terms of their employment and should also be provided with written pay slips.
- Au pairs are entitled to proper rest breaks i.e 15 minutes for every 4.5 hours worked or 30 minutes for every 6 hours worked.
- Au pairs are entitled to annual leave of at least 4 working weeks per year and the family should maintain records of holidays taken and hours worked.
- Families will be obliged to provide a safe place of work for au pairs and should agree in advance the duties which the au pair is required to undertake as part of the agreement.
- Families must give au pairs minimum periods of notice in the event of termination of the employment depending on the au pair’s length of service.
Contributed by Catherine O’Flynn & Aedín Brennan.
