Contribution to the Private Members Debate on the Au Pair Placement Bill 2016

July 13th, 2016 - Pat Breen

Minister of State at the Department of Jobs, Enterprise and Innovation (Deputy Pat Breen): I thank Deputy Rabbitte for raising this important issue in her Private Members’ Bill but the Government is opposing it for the reasons I will detail. I would ask Members across the floor of the Chamber to listen attentively to what I have to say.

I acknowledge that the issue of child care presents a very real difficulty on a daily basis for thousands of families across the country. However, to attempt to address this issue by dependence on unqualified and poorly remunerated overseas labour working for board, lodging and pocket money is not the way forward. Do the Members opposite truly believe that one human being should work 30 hours per week, or seven hours per day, for another in return for board, lodging and pocket money? That is why we cannot support this.

Taking away rights from such vulnerable workers will not provide the solution to the need for affordable, quality child care. The approach set out in the Bill runs counter to the Government’s approach to the affordability of quality child care which my colleague, the Minister for Children and Youth Affairs, Deputy Katherine Zappone, will deal with in detail later in the debate.

The Bill provides that a person of any age who participates on an au pair exchange with an agency can provide childminding, domestic chores and other household duties for 30 hours per week or seven hours per day in return for hospitality lodging and pocket money. The absence of an upper age limit in the Bill’s definition of au pair is notable as well, especially in view of the fact that the Long Title refers to the better protection of rights of young people. The Bill envisages people of all ages working for board, lodging and pocket money. The Members opposite do not see the need for some minimum level of pocket money. It could be as low as one euro. What does “7 hours a day” mean? Is it 35 hours per week? Is it 49 hours per week? How many hours per week do they expect people to work, in return for board, lodging and pocket money?
Again I reiterate that the Government fully understands the financial and other pressures faced by many working families as regards child care.

I will give a few examples. Do the Members opposite realise that under our existing laws - we should look at those - a worker under 18 years of age, who lives in with meals provided, under the terms of the National Minimum Wage Act could work 31.8 hours per week for €150, when account is taken of the monetary amount that can be included as reckonable pay when board and lodgings are provided. A person over 18 years of age, and in the first year of employment, could work 27.9 hours per week on the same basis. A person over 18 years of age, and in the second year of employment, could work 24.8 hours per week, while a person over 18 years of age who has worked for more than two years could work 22.3 hours per week provided board and lodgings are provided. Those examples show how child care can be delivered within the terms of the National Minimum Wage Act. Of course, this will never match 30 hours per week, seven hours per day for board, lodging and pocket money.

The National Minimum Wage Act permits an employer to include a monetary allowance as reckonable pay if they provide an employee with full board and lodgings, which is usually the case with au pairs. The current amount for board and lodgings, namely, €54.13 per week or €7.73 per day, is set out in the National Minimum Wage Act 2000. I am conscious of the passage of time since these rates were set and it is timely perhaps that they would be reviewed with respect to board and lodgings. To this end, it is my intention as Minister of State to ask the Low Pay Commission to review the allowances for board and lodgings, provided for under the National Minimum Wage Act, as part of its next work programme. That is something we can seriously consider and that might be a way to solve the problem.

The Bill does not explicitly provide for an exclusion from the provisions of the National Minimum Wage Act, nor from the range of other employment rights legislation such as the Organisation of Working Time Act.

This effectively means that host families securing child care through the elaborate structures proposed in the Bill would remain open to challenges by persons working as au pairs that they are in fact employees and those families would remain exposed to potentially significant awards being made against them. It would be giving families a false sense of security while leaving them very exposed.

This brings me to an important point which needs to be emphasised in this debate and which should underpin our consideration of the Bill. National policy on employment law has consistently been to avoid the creation of sub-categories of vulnerable workers with low or no employment rights and with no access to the protections the status of employee provides. In this regard, I draw the attention of the House to the fact that during our Presidency of the EU in 2013, Ireland was to the forefront in opening the way for EU member states to ratify the ILO’s domestic workers convention. We announced out intention during the Presidency and I am pleased to say that the Government ratified the convention in July 2014. The Bill represents a reversal in that policy and would cause significant reputational damage for Ireland.

One of the key strengths of our employment rights policy is that we do not discriminate between different categories of worker. While the Bill is completely silent on employment law, it is clearly intended to remove au pairs as defined in the Bill from the protections of employment law. So far, I have centred my reasons for opposing the Bill on national employment law, but any consideration of the issue of au pairs must have regard to the rulings of the Court of Justice of the European Union. The court has considered the status of au pairs on a number of occasions and has consistently held that they are workers. The case most often cited in this regard is the Lawrie-Blum case. More recently, the Payir case reaffirmed this view. It is worth quoting from those cases. In the Lawrie-Blum case, the court said, “The term ‘worker’ covers any person performing for remuneration work the nature of which is not determined by him for and under the control of another, regardless of the legal nature of the employment relationship.” In the Payir case, the Advocate General’s opinion stated that an au pair who looks after the host family’s children and does housework for 25 to 30 hours a week will as a rule have the status of worker. We need to note the view of the Court of Justice of the European Union. It is also worth mentioning two further cases which addressed issues about remuneration. The Watson and Bellman case related to an au pair employed as a family help who looked after children in return for board and lodging. The Advocate General stated in that case, “As this would in fact be work performed for a consideration (board and lodging), she could be classed as coming within a master and servant relationship or if this were not the case she would at least come under the alternative heading of provision of services”. In the Steymann case, the court accepted that remuneration can be in forms other than money, including, for example, services provided by the employer to the employee. The Bill takes no account of the position under European law as set down in the rulings of the Court of Justice of the European Union. I ask Deputy Rabbitte to consider that when she makes her submission.

In my contribution to this debate on what is an important topic, I have set out why the Government is strongly of the view that the Au Pair Placement Bill 2016 should be opposed. The heart of this stance does not rest on complex legal arguments with reference to national or EU law, although these can be made and I have referred to them here this afternoon. Instead, the Government’s opposition to the Bill is based on the principle that vulnerable workers, such as those working as au pairs, need to be protected. The Government is acutely aware of the pressures facing families as regards child care. My colleague, the Minister for Children and Youth Affairs, Deputy Zappone, will set out the Government’s position in this regard. However, it is wrong to try to address this issue by taking away rights from vulnerable workers. For that reason, the Government opposes the Bill.