Recently, the issue of au pairs and fair wages has been circling in the national media. Families engage au pairs, not businesses. Consequently, you may be confused as to whether your au pairs are legally employees or not. This will affect whether you owe them the same benefits that employees of a company would receive. This article will set out the obligations that employers have towards their au pairs.
What are Au Pairs?
In the US and the UK, an au pair is not an employee. Here, young people can visit their country of choice and earn some spending money in exchange for providing child-minding and domestic jobs for a family. The spending money is referred to as pocket money or a weekly allowance. However, no such system exists in Australia. Therefore, young people visiting Australia as an au pair must come on a working holiday visa.
Many families use au pairs as an alternative to hiring nannies or using afterschool care. As a result, the focus on cultural exchange factors that may have existed in the past has diminished. Instead, au pairs are merely a cheaper childcare alternative for a lot of families. Young travellers are also more likely to think of the engagement as a job to assist with their travel expenses, rather than focusing on the cultural exchange aspect.
Many people perform work on an informal and unpaid basis and are not legally employees. While this type of work or volunteering may attract other regulations, employment law is typically only concerned with the performance of paid work.
Parties usually arrange paid employment through an agreement or contract. An employment agreement or contract will at the very least include terms describing the:
- job in question;
- tasks that the employee will perform; and
- wages or rate of pay.
In some countries, regulations specifically exclude au pairs from being considered employees. This is not the case in Australia. Your au pair may be considered an employee if you come to an agreement about the:
- job and tasks involved; and
- rate of pay.
This does not have to be in writing. Your au pair will still arguably be an employee if you come to this agreement verbally. So, if an au pair is an employee of your family, this will affect what you must provide them under Australia’s employment laws.
National Employment Standards
The Fair Work Act 2009 (‘the Act’) covers workers entitlements in Australia. The Act includes ten standards known as the National Employment Standards (NES). These set out the minimum entitlements that form the basis of all employee contracts. They cover issues such as:
- maximum working hours per week;
- leave entitlements;
- notice of termination; and
Casual employees do not receive the same entitlements under the NES as permanent employees.
If an au pair is a casual or permanent employee, they must receive the minimum entitlements under the Fair Work Act. These entitlements may include paid annual and personal leave. In reality, it is unlikely that an au pair may need to use the majority of the entitlements the NES guarantees.
However, failing to provide an employee with one of these entitlements amounts to a breach of the NES. This could result in you receiving a fine. When setting out the terms under which an au pair will provide their services, it is important to ensure you address the NES.
The Fair Work Act contains a separate provision for a national minimum wage for award-free employees. The current national minimum wage for a permanent employee is $17.29 per hour or $656.90 per 38 hour week. Employees covered by an award will have their minimum wage set out within the award.
You must also pay casual employees at least a 25% casual loading on top of their wage. This is because they do not have an entitlement to paid leave. For employees who are younger than 21 years old, who an award or enterprise agreement does not cover, the minimum wage is based on a scale starting at 36.8% for 16-year-olds and increasing to 97.7% for a 20-year-old.
You should provide your au pair with room and board as part of the arrangement. To determine the au pair’s overall weekly or monthly wage, you should use the cost of providing a room and board along with their wage and hours of work. Although many au pair agencies choose to refer to an au pair’s pay as an allowance or pocket money, it is still considered a wage. As such, you must comply with minimum wage requirements.
Under Australian law, an employer must contribute a percentage of an employee’s earnings into a complying superannuation fund. There are a number of exceptions to this requirement which may be relevant if you engage an au pair. These exceptions include where the employee does primarily private and domestic work for 30 hours a week or less.
The services provided by an au pair will typically fall into the category of private and domestic work. If they work more than 30 hours a week, you must contribute an additional 9.5% of their wage into their super fund. Workers who earned super while visiting Australia on a temporary visa may be eligible to claim the super once they return home and their visa has ended.
Au pairs in Australia are often legally considered as employees. Australian employment law includes certain minimum standards for all employees, which you should be aware of before you hire an au pair. You should also be aware of any minimum wage and superannuation requirements. If you’re thinking about hiring an au pair and have any questions about your obligations as an employer, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.
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