[The following is a guest posting from Karen Conway from Graphite HRM]
A Recent landmark case was heard in the WRC regarding the hiring of Au Pairs. The decision found that the host family should have treated the Au Pair as an employee, therefore finding that they have breached many employee statutory rights. Namely being paid money owed for work, rest breaks, annual leave and public holidays. As it stands the WRC case has not changed any legislation, so the risk to families who hire Au Pairs at the moment is that an individual case could be taken against them personally.
This particular case is anonymous however the details showed that the employee was paid €100 per week plus board for working between 30 and 60 hours per week. If the legislation does change so that the relationship is to be seen as an employer/employee relationship, below are some of the mandatory changes that can be expected in a typical employer relationship.
- Minimum wage must be paid and the current rate for an experienced adult is €9.55 per hour. If the Au Pair is living with you and receiving food they can get the amount taken from the minimum rate which is referred to as board and lodgings. This means a maximum of €7.73 can be included in the calculation of minimum wage per day for board and lodgings.
- The Organisation of Working Time Act, 1997 stipulates that employees must get rest breaks during the working day, section 12 states employees must get a 15 minute break after 4.5 hours of work and at least a 30 minute break after 6 hours. The onus is on the employer to ensure that employees get their breaks and must keep a record of these breaks. An employer should introduce into the contract of employment a procedure to follow if they do not get a break during the day. A monthly timesheet can be signed which would include a sign off that the employee received their rest break. There must also be a minimum break of 11 hours between the end of one shift and the beginning of the next shift and at least 24 hours of continuous rest per week. This weekly rest break must be preceded by the 11 hour daily rest break.
- An employer must not require an employee to work more than an average of 48 hours in each 7 days. The reference period can be calculated over a 4 month reference period.
- Any employee that works at least 1365 hours per year is entitled to receive at least 4 normal working weeks per year of annual leave. The leave year according to the organisation of working time act is April to March. Anyone who works less than 1365 hours in a leave year is entitled to receive 8% of total hours work capped at a maximum of 4 normal working weeks.
- There are 9 public holidays per year which employees are entitled to be compensated for as long as they have worked at least 40 hours in previous 5 weeks ending before the public holiday.
- It is also important that all employees are provided with a contract of employment. The Terms of Employment and Information Act, 1994 stipulates that all employees must be provided with a contract of employment within 2 months of commencing employment. According to the LRC code of practice SI146, 1996 for procedures dealing with Disciplinary and Grievances, employees must receive a copy of the disciplinary and grievance procedures within one month of commencing employment.
There has been a lot of media attention in relation to the hiring of Au Pairs and the Migrant Rights Centre who brought this case to the WRC has said there are currently between 30 – 40 cases pending in the WRC where they are supporting almost 1000 au pairs. The award for this particular case was nearly €10,000 that this family had to pay as ordered by the Adjudications officer.
If any of the above effects your organisation you can call Graphite HRM the advice line on 01 886 0350 for advice.