Check against delivery
Wednesday, 13th July 2016
The Government is opposing the Bill put forward by Fianna Fáil for reasons which I will detail here in the House this afternoon. At the outset, however, I would like to acknowledge that the issue of childcare 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 you truly believe that one human being should work 30 hours per week, or 7 hours per day, for another in return for board, lodging and pocket money. I cannot support that.
Taking away rights from such vulnerable workers will not provide the solution to the need for affordable, quality childcare. The approach set out in the Bill runs counter to the Government’s approach to the affordability of quality childcare which my colleague, Minister Katherine Zappone set out in detail.
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 7 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, especially in view of the fact that the long title of the Bill refers to the better protection of rights of young people. So the Bill envisages people of all ages working for board, lodging and pocket money. You do not see the need for some minimum level of pocket money. It could be as low as one Euro!
And 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 you expect people to work, in return for board, lodging and pocket money?
Again I would reiterate that the Government fully understands the financial and other pressures faced by working families as regards childcare. Do you realise that under our existing laws a worker under 18 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 and in the first year of employment could work 27.9 hours per week on the same basis. Someone over 18 and in the second year of employment could work 24.8 hours, while a person over 18 who has worked for more than two years could work 22.3 hours a week provided board and lodgings are provided. These examples show how childcare can be delivered within the terms of the National Minimum Wage Act. Of course this will never match 30 hours per week, 7 hours per day for board, lodging and pocket money.
As I have mentioned, 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 currently amount for board and lodgings (€54.13 per week or €7.73 per day) is set out in the National Minimum Wage Act 2000 (National Minimum Hourly Rate of Pay) Order 2000 (SI No. 95/2000). I am very conscious of the passage of time since these rates were set and I think it is timely that these rates be reviewed. To this end it is my intention 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 their next work programme.
I note that 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 childcare through the elaborate structures proposed in the Bill would still remain open to challenges by persons working as Au Pairs that they are in fact employees and those families remain exposed to potentially significant awards being made against them. You would be giving families a false sense of security and leaving them very exposed.
This brings me to an important point which I feel needs to be emphasised here in our debate this afternoon, and which should underpin our consideration of this 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 would draw the House’s attention 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 Domestic Workers Convention. At that time we announced our intention to ratify that Convention and I am pleased to say that Government decided to ratify the Convention in July 2014. The Bill before the House today 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 workers. 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. However any consideration of the issue of au pairs must have regard to the rulings of the Court of Justice of the European Union (CJEU) which has considered the status of au pairs on a number of occasions. In those cases, it has consistently held that au pairs are workers. The case most often cited in this regard is the Lauri-Blum case. More recently the Payir case reaffirmed this view. It is worth quoting from those cases.
In the Laurie –Blum case the Court said that
‘…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’.
It is also worth mentioning two further cases, which addressed issues about remuneration. In the Watson and Bellman case, which related to an Au Pair employed as a family help who looked after children in return for board and lodging, the Advocate General stated that
“as this would in fact be work performed for a consideration (board and lodging), she could be classified 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, for example, services provided by the employer to the employee.
The Bill before us today takes no account of the position under European law, as set down in the rulings of the Court of Justice of the EU.
In my contribution to this afternoon’s debate on this 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 argument with reference to national or EU law, though 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 childcare and my colleague Minister Zappone has set out the Government’s position in this regard. However it is simply wrong to try to address this issue by taking away rights from vulnerable workers. It is for this reason that the Government opposes the Bill.