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When an au pair needs help

JURK – Juridisk rådgivning for kvinner (legal aid for women) is one of the organisations to have had a great deal of contact with au pairs in Norway in recent years. Many of them have had trouble and needed help and advice. JURK is seeking close cooperation with the Au Pair Center.

(Text: Linn Stalsberg Photo: Werner Anderson)

– The regulations surrounding the au pair scheme form a grey area that is open to widely different interpretations, says Lene Løvdal, Project Manager for JURK.

She says that when an au pair comes to JURK, it is often because she or he:

- works far too many hours a week

- undertakes many more, heavier work tasks than she really should

- has been dismissed by the host family without good reason.

Sometimes an au pair has experienced serious abuses from the host family, such as sexual harassment or sexual incidents, or not being allowed to go out of the house. When an au pair is having a difficult time, it is often another au pair that brings her to JURK. Then the law students working at JURK provide whatever they can in terms of help and advice. 

– JURK is able to provide information concerning laws and regulations and give advice as to where to turn. We can also help write letters of appeal against rejection by UDI, for example, or help collect money, such as wages, owed by the host family, says Løvdal.

Since those working at JUR Kare law students, answers are always made in writing; thus it can take up to three weeks to get an answer.

Many rules cannot always be exercised

Although there are a large number of rules and regulations aiming to make things safe and secure for both au pairs and host families, JURK is sceptical as to how situations may be checked out and the rules exercised.

– One of the main problems is that au pairs live at their workplace, making it difficult to distinguish between work-time and time off, says Løvdal. When is she working and when is she part of the family?

Another problem is that au pairs, particularly those that come from far-off countries, do not understand the Norwegian system and their rights well enough. A third problem is that au pairs increasingly come from poor countries, such as the Philippines, making them vulnerable in relation to their prosperous host family.

– All this can lead to a very uneven distribution of power between the au pair and the host family, Løvdal confirms.

Forced labour difficult to punish

The vast majority of au pairs that JURK helps come from the Philippines, and JURK enjoys close collaboration with the Filipino Workers’ Organisation, Caritas and the Catholic diocese in Oslo. Au pairs needing help frequently come to JURK via these organisations.

– We have seen a number of instances where the au pair’s position of dependence is exploited; in the worst cases we’re really talking about anything from human trafficking to forced labour, says Løvdal.

Sad to say, she is also certain that there are many more cases of sexual abuse than those they get to hear about for she believes this issue to be so difficult for many of the women to talk about that it is kept quiet. Neither do many of them know what rights they have and what kinds of help are available if they experience such problems.

– We have seen in some host families that the au pair is regarded as something they have ’bought’, something which should therefore be available to perform duties at any time, says Løvdal.

From a legal point of view, this is difficult to both prove and get punished. How can one show that something is experienced as coercion? The families concerned often regard themselves as kind and generous as they feel they are helping someone from a poorer part of the world.

No host family in Norway has so far been found guilty of forcing an au pair to work too much or to carry out tasks outside the regulations.

– But I tend to think that wickedness happens the moment you regard other people as things, says Løvdal, adding that JURK both sees and hears quite a number of hair-raising au pair stories from Norwegian homes.

– We were contacted, for example, by an au pair who met another au pair quite by chance when she was outside throwing away the rubbish. The second au pair was living in complete isolation and wasn’t allowed to go out. She was desperate for help, Løvdal tells us.

JURK is extremely pleased to see the Au Pair Center finally up and running and is hoping that 2013 will see the Storting pass a proposed quarantine arrangement to be used against families who have treated their au pair badly.

A servant in the house of a grown-up daughter?

“The need of Norwegian families to have a domestic worker and the desire of foreign women to work as such in Norway must, according to JURK’s own view, be dealt with through other arrangements that secure full workers’ rights – both formally and in reality,” JURK writes in a 2012 report. 

Au pairs are not domestic workers, even if they sometimes think so themselves.

– Many au pairs in Norway feel that they are primarily domestic workers and not part of a cultural exchange, says Løvdal. She thinks that the au pair scheme is, in many ways, built on internal contradictions. It is obviously not an ordinary young people’s exchange because au pairs are adults and expected to ’work’ in the house. At the same time the extent to which they enjoy workers’ rights is in dispute.  

– At JURK we regard the whole au pair scheme as being based on a dilemma: she is a mixture of family member and employee. She lives at her workplace and it is often unclear as to what is regarded as work and what is participation in the life of the family. 

JURK does not hide the fact that it is sceptical of the whole scheme because of all this, although they are aware that it may function very well for many people.

In 2012 JURK proposed winding up the entire scheme and replacing it with other exchange arrangements; the current scheme was too open to the exploitation of women from poor countries such as the Philippines. The basic premises of the scheme are precisely those which are the greatest factors in the vulnerability of home-helps where being exposed to human trafficking is concerned: Living at one’s workplace and being alone in doing so; being a foreign woman with little knowledge of statutory rights or the help apparatus; and having one’s residence permit linked to one’s employment contract.   

In the short term, JURK believes the following measures should be taken:

  • Paragraph 224 of the Penal Code must encompass the complex situations involving coercion to which au pairs and other domestic workers are exposed. A provision for negligence should also be introduced to cover cases where premeditation is difficult to prove but where the power relations are so maladjusted that the employer ought to have understood that the au pair perceived the situation as one of coercion.
  • The ILO Convention on domestic workers must be ratified and such workers must be guaranteed inspection of their working conditions in line with other workers.
  • Au pairs must be acknowledged as employees and be granted basic workers’ rights in relation to the work they actually perform.
  • An au pair’s residence permit must be made independent of the contract she/he has with the host family.
  • The Directorate of Immigration directive must be changed to bring it in line with the provisions relating to domestic workers in consideration of leisure time, rest breaks and the requirement of particularly good reasons for non-compliance with the general rule.
  • The fee for making a new application should be a maximum of 300 kroner instead of the current 2500 kroner, providing a real opportunity for au pairs to swap host families. Many find the current rate too expensive.
  • The enforcement apparatus must be strengthened. There is currently little that may be done in cases insufficiently serious to be covered by Paragraph 224 of the Penal Code concerning human trafficking.
  • In addition to increasing competence in those meeting au pairs in relation to human trafficking, JURK wishes to see the following improvements:

The quarantine scheme for host families will only apply for au pairs from countries outside the EU/EEA. Au pairs from EU and EEA countries must be ensured equally good protection as other au pairs. Where the quarantine scheme is concerned, there should be a lower threshold as to what is to be considered a serious breach of contract than is currently proposed. In our view, there should be a point concerning whether the host family has broken with the intention of the scheme, i.e. cultural exchange. It must also be possible to include breaches of other laws, such as tax laws. Infringements of the Penal Code in relation to au pairs, failure to enter the au pair in the National Register and failure to pay relevant taxes must be relevant issues in cases concerning the quarantine of host families.

  • We see the need for a higher degree of supervision where the working conditions of au pairs and other domestic workers are concerned.
  • Au pairs and other domestic workers must be given the right of discussion in the event of contract termination and dismissal in line with other workers. Au pairs must also be given a real possibility of having their case dealt with through the system of justice and of receiving free legal aid in such cases. This involves lowering the fee for taking the case to arbitration and spreading the knowledge, to au pairs and legal advisors alike, that au pairs are usually to be regarded as employees and thus have the right to free legal aid in the event of contract termination and dismissal.
  • More systematic information must be given to both au pairs and host families concerning their right and obligations. A guidance service is very welcome but information must also be given before arrival and information meetings should be organised for au pairs and host families. It must be ensured that such information is available in practice, understandable, quality-assured and relevant to the au pair and host family wherever they are.

In 2012 Lene Løvdal wrote a report concerning the legal rights of au pairs in Norway.

Read her report here: http://foreninger.uio.no/jurk/aktuelt/2012/au-pair-rapport.pdf

21.12.2012 | Tine Solberg Johansen
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