For the majority of the time, when you employ an au pair, especially if it is through a reputable agency such as Au Pair Extraordinaire, things go well, and it is a successful endeavour for the whole family. However, there are the rare occasions when a placement can go wrong and this can be for a number of different reasons. Fortunately, this doesn’t happen too often. However, it’s important to ensure that you, as the employer, have honoured the legal terms your au pair is entitled to.
If you are well informed of your au pair’s rights and takes appropriate steps to ensure you meet these rights, this will mitigate any problems from cropping up. For this reason, it’s imperative she is given the same rights as any other permanent employee. It can be confusing, and often a grey area, trying to understand the BCEA (Basic Conditions of Employment Act) and how to apply this to the employment contract of your au pair.
For this reason, we’ve put together a handy guide which covers your basic responsibilities as an employer of an au pair, including annual leave, working hours and general duties. If you stick to this, you’ll be on the right track.
- Your au pair is a permanent employee
Whilst your au pair may be working in a domestic environment, she is still in fact, a permanent employee whose terms of employment will be no different to an employee working within a corporate environment. If she is working over 24 hours per month, whether in a private household or in a corporate environment, she is legally entitled to a set monthly salary every month, a fixed amount of annual leave per year, and provisions for unexpected instances such as sick or family responsibility leave. The same will apply to any other employees within your home, such as domestic helpers or gardeners. The rights of a domestic employee working more than 24 hours per month are exactly equal to those of corporate employees – they are all entitled to the BCEA.
- Annual leave – paid or unpaid? And how many days per year?
The rule of thumb is this; if your au pair works over 24 hours a month, they are entitled to the BCEA (Basic Conditions of Employment Act).
As stipulated by the BCEA, this means they are legally entitled to a minimum of 15 days paid leave per year. You are allowed to stipulate when this leave can be taken, but you are legally required to give them a minimum of 15 days paid leave. In our experience, most employers will request that their au pair take their leave during school holidays, when the parent can take their leave too. The most common time to do this is during the December / January Christmas holidays as this is when most businesses close too. Of course, if you’d like to give your au pair more than 15 days of paid leave per year, this is at your discretion, and will be a very attractive benefit when an au pair joins your family.
- Do I need to pay my au pair when I go on holiday?
If you’d like your au pair to take more than 15 days off, such as during the December / January Christmas holidays or when you are away on family holidays, you are still legally required to pay your au pair as its your choice not to have the au pair working over this time. So while they may not be working in this time, they will still receive their usual salary.
- What other types of paid leave is an au pair entitled to?
Like we mentioned earlier, if your au pair is working more than 24 hours per month, she is entitled to the BCEA. This means that she will receive other benefits too, such as sick leave, family responsibility leave and maternity leave, in addition to her 15 days of paid leave per year.
In the first six months of employment with you, your au pair is entitled to one day of paid leave for every 26 days worked. After six months of employment, she is entitled to 36 days of paid leave for every three year cycle. If she had to use all 36 days in one year, then she’d have to get unpaid sick leave in the next two years if she needed to take time off for sickness.
Paid sick leave is only given if the employee is genuinely sick. If she doesn’t require these days, they fall away (the au pair is not paid out if she doesn’t use up all of her sick leave). To monitor that the au pair is legitimately ill, the au pair has a legal duty to provide a doctor’s note on a Monday, Friday or the day after a public holiday if she has taken more than two days in a row of sick leave. This is to ensure that employees due not abuse this benefit.
Family responsibility leave
In South Africa, all employees working under the BCEA are entitled to three days a year of paid family responsibility leave. This may be used if your child is born, if you have a child under the age of 18 who is hospitalised, or if there is a death in the family. Depending on the situation, or the relationship with your employee, you may request proof of the reason for requesting this type of leave. It’s important to note that if your child is sick, but not hospitalised, then family responsibility leave does not apply. In this case, the au pair can choose to use some of her annual leave (at the employer’s permission) or take it as unpaid leave.
Currently, study leave is not a legal requirement of the BCEA. It is granted through the discretion of the employer, and may differ from employer to employer. Whilst the au pair may request study leave, it is the employer’s choice whether or not it will be taken as paid or unpaid leave. Often, paid study leave is a major benefit given by an employer, and one which will attract a high calibre au pair to accept your offer of employment over another offer.
As per the BCEA, an employee is legally entitled to take up to four months unpaid maternity leave. It is the employer’s choice whether or not they’d like to pay their au pair while she is on maternity leave. Of course, this would be a major benefit, and one that would ensure your au pair returns to work for you after their maternity leave ends. In addition to the four months of unpaid maternity leave, the employee will still continue to accrue annual leave during this time.
- What am I required to do if my au pair needs to go on maternity leave?
It is your legal responsibility as the employer to register your employee for UIF. This must be done within her first 21 days of employment with your family. This will enable her to claim for UIF maternity benefits should she need to. You can do this by completing the online forms on the UIF website, or, you can use an employee relations agency to do this for you. As the employer, you are legally required to contribute 2% of your employees pay each month. For more information on any UIF related matters, visit the UIF website.
- Are there any instances during which an au pair would get unpaid leave?
Below are a few instances where you are not legally required to pay your au pair if they request to take leave. However, it would only apply if they have no leave left of the type of leave they wish to take. This happens when:
- Your au pair has used up her allocated amount of paid annual leave.
- Your au pair has exceeded 36 days of sick leave within a three year period.
- Your au pair has asked permission from you for more than her allocated amount of study leave.
- Your au pair chooses to take her four months of unpaid maternity leave.
- What legal documents must the employer provide to the au pair?
- Monthly payslips (either by hand, or via email).
- A signed copy of their employment contract (provided by the first day of their employment, at the latest).
Is my au pair still entitled to paid leave if they work less than 24 hours per month?
If an au pair, or any employee for that matter, works less than 24 hours per month then they will not be entitled to the BCEA and as a result, are not granted any form of paid leave. This type of employment is more casual, and if they don’t work, they don’t get paid.
- What are the general working hours for an au pair working more than 24 hours per month?
Although the working hours of an au pair can be flexible depending on the family’s unique scenario, the most common working hours are in the afternoons between 12:00 -18:00 when the children have finished school and need care before the parents get home from work. It is imperative to abide by the BCEA which stipulates that the maximum amount of working time allowed is 45 hours per week. This is nine hours per day (excluding a lunch break) if the employee works a five-day week, and eight hours per day (excluding a lunch break) if the employee works more than 5 days per week.
- What are the general duties of an au pair?
Each family will have different roles and responsibilities for their au pair. However, its best practice to draw up a general job description to include in the contract which both parties sign. This reduces any confusion and communication issues from arising. As a guide, we usually provide the following common duties to our families to incorporate within the job description:
- Providing nurturance, care, stimulation and companionship for your children.
- Fetching your children from school.
- Transporting your children to extra murals, therapies, doctor’s appointments etc.
- Supervising and assisting with homework.
- Liaising with teachers, coaches and therapists on your behalf.
- Arranging and supervising play dates.
- Purchasing necessities for, and assisting with, projects and assignments.
- Running errands for you.
- Grocery shopping on your behalf.
- Engaging in intellectually stimulating play and activities with your children.
- Preparation of meals for your children.
In this article, we’ve set out some of the important legal duties you are required to fulfill when employing an au pair who will be working for you more than 24 hours per month, as well as their roles and responsibilities as au pair to your children. But rest assured, if you do decide to hire an au pair through us, we will guide you throughout the process, so that all your boxes are ticked when it comes to fulfilling your legal obligations when employment commences.
If you need help to find an au pair, or need guidance on how to choose the perfect candidate, then please don’t hesitate to contact us.