On 8 March 2016, the Workplace Relations Commission ("WRC") awarded €9,229 to a Spanish au pair on the grounds that her employer had breached aspects of the National Minimum Wage Act 2000, the Organisation of Working Time Act 1997 and the Terms of Employment (Information) Act 1994.
With the spiralling cost of childcare it is estimated that some 20,000 families in Ireland have au pairs who have traditionally been paid approximately €100 per week plus room and board in return for an agreed number of hours' assistance with the family's children. This week's decision will serve as a stark wake up call to the users of au pairs in circumstances where it now appears that au pairs and all domestic workers, i.e. people who work in other people's homes, are entitled to the same minimum employment protections as all other employees. While this obviously extends to complying with such matters as the national minimum wage of €9.15 per hour, equally important are such matters as paid holidays, health and safety and having the necessary permission to work in Ireland.
Employer Obligations
To help people understand their obligations before engaging domestic workers, the Department of Jobs, Enterprise and Innovation published The Code of Practice for Protecting Persons Employed in Other People's Homes. This reminds employers of their obligations to provide employees with a written statement of terms and conditions and sets out the deductions allowable under minimum wage legislation for board and lodgings. The code is available to view here.
The inclusion of rest breaks is interesting for anyone who, for example, employs a carer or childminder. Strictly speaking, an employee is entitled to a rest break of 15 minutes after a 4½ hour work period, regardless of where they work, or a break of 30 minutes after a 6 hour work period (which can include the first 15-minute break). In addition, under legislation employees are not permitted to work more than 48 hours in a seven day period averaged over four months. While au pairs traditionally only work 20 or 30 hours per week, for anyone who employs a childminder and leaves home at 8.00am, unless they return home by 5.30pm to relieve the childminder, they risk breaching the 48 hour threshold. This doesn't even account for rest breaks, speaking of which - how is the minder of an active pre-schooler supposed to take a rest break?
Comment
Prior to this week's decision of the WRC, "au pairs" were not generally considered to be "employees". What this week's decision has confirmed is that au pairs are, in fact, employees and, as such, entitled to all of the benefits and protections of employment law such as minimum wage, rest breaks, paid holidays, an entitlement to payslips and PRSI contributions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
