Classic contract law theory often assumes a foundational difference between ‘status’ and ‘contract’.[1] This echoes the wider ‘hostile worlds’[2] thesis that there is (or should be) a watertight commodity frontier separating what is done for money and what is done for love, and the related presumption against an intention to create binding contractual relations within the family. How then might we interpret a contract for au pairing? The general premise of au pairing is that a young woman travels abroad for a ‘cultural exchange’ and as part of her placement is treated as ‘part of the family’ where she assists with ‘light household duties’ in exchange for ‘pocket money’, rather than working for a wage. Given the similarities between the household labour performed by au pairs and other workers (nannies, cleaners, domestic workers), migrant au pairs’ tentative distinguishing is highly contingent on their so-called special status – that is, au pairs are not typical (paid) temporary migrant workers because of their special status as ‘part of the family’. Yet at the same time, closer inspection reveals that contracts play a role in shaping the normative and legal positioning of au pairing and au pairs as workers, cutting across levels of the private household and state and transnational legal orders.
As part of a broader research project on the law and political economy of migration, care and domestic work in Australia, I interviewed temporary migrants and parents about their experiences of au pairing. Despite there being no formal legal requirement to enter into an au pairing contract in the jurisdiction (unlike other some other countries), 13 out of 26 temporary migrants who worked as au pairs reported having a contract for at least one of their placements. Several interviewees shared extracts or full copies of their contracts, or otherwise described and quoted their contracts during the course of the interview. Setting aside the narrower issue of their legal enforceability, these contracts are fascinating artefacts to examine au pairs’ roles, responsibilities and routines in the household, how the exceptionality of au pairing is reproduced, and how the law of the household is sustained in dialogue with state and transnational legal orders.
One of the key features of au pair contracts is how they set out responsibilities and routines, seeking to clarify expectations around daily lives, roles and tasks. Listed tasks in contracts examined included making breakfast and other meals, post-meal clean up, driving children to school or daycare, helping with naptime, bathing, taking children or pets for walks and activities, homework supervision, grocery shopping, laundry, ironing and so forth. As one contract set out: ‘You will be required to be a helping hand with naptime settling, feeding, bathing, cleaning, preparing food, taking the baby for walk [sic], entertainment/development games, etc’. Contracts therefore highlight how au pairs have responsibilities across both the care of children and infants, but also in managing the general household at large.
Contracts typically contained hallmarks of what you might expect in a standard employment agreement – covering the au pair’s duties and responsibilities, setting out the au pair’s wages or ‘pocket money’, their weekly hours, and the process for termination and relevant notice periods. For example, contracts usually included a notice period clause (typically requiring two weeks’ notice) before either party could terminate the agreement. In addition, some contracts gave the family a non-reciprocal right the summarily terminate due to ‘serious misconduct’ by the au pair. These indicia, including in particular the level of control over the au pair through listed daily tasks and routines (including how and when those tasks and duties should be completed) generally pointed towards the presence of an employment relationship.
Au pair contracts also set out expectations around au pairs’ lifestyle, behaviour and decorum. Au pairs often described being subject to clauses around illicit and undesirable behaviours – such as drinking alcohol, taking illicit drugs and being ‘hung over’. Contract clauses included: ‘we would expect that you have no late nights / hangovers before working days’; ‘She will not be intoxicated or use drugs at the host’s home’; ‘The Au Pair will have to request permission of the Host about visitors’; ‘We require to be informed about where the Au Pair is spending her free time’. Notably, this sort of control over (non)workers’ bodies, social lives and non-work activities is, of course, not unique to au pairing. As well as indicating high levels of control, such clauses also engendered normative expectations around au pairs’ morality, respectability and decorum, drawing on longer gendered, racialized and class-based legacies shaping women’s and domestic work.
But on the other hand, the medium of contract was also often used as an expressive space to distinguish the au pairing arrangement from ordinary employment. For example, contracts typically used terms such as ‘pocket money’ (instead of, or in addition to ‘pay’, ‘salary’, or ‘wages’) or elaborated on reasons justifying very low pay. In addition, contracts would sometimes rehearse the familial and cultural exchange aspects of the relationship by emphasizing that the au pair would be ‘part of the family’. At the same time, there were also constraints around ‘being part of the family’. For example, one au pair’s contract stipulated, as she put it, ‘that I couldn’t have dinner with them on Fridays or Saturdays – that Fridays and Saturdays would be their family time’.
Finally, private contracts acted as a medium to connect the private local household with a wider transnational legal order. If there is a transnational legal basis of au pairing, it would likely be the 1969 European Agreement on Au Pair Placement – which appends a model contract between the household and au pair. But this rather antiquated European Agreement has only been ratified by a small handful of European countries and so has a very limited formal jurisdiction. Despite this, global gig platform intermediaries such as AuPairWorld ‘recommend using the European au pair contract’ where no other pro forma contract exists within a given jurisdiction. The growing presence of new gig intermediaries such as AuPairWorld may help to explain why a number of interviewees based in Australia entered into contracts heavily based upon, or identical to, the European pro forma.
Importantly, the European Agreement is based on a legal fiction that au pairs belong to a ‘special category’ rather than being a student or a worker. This central premise also informs the language and terms of the Agreement’s appended model contract. For example, the model contract states that au pairs are to ‘share the daily family life’ and be ‘given the opportunity to improve her/his education, in particular with regard to the … [insert country] language, and to increase her/his general cultural development’. Similarly, the model contract uses the term ‘pocket money’ rather than wages, and the family is referred to throughout the contract as ‘the host’ rather than the employer. As noted above, many of the contracts used by Australian parties mirrored this language of ‘host’, ‘pocket money’ and ‘share the daily life’ highlighting how the norms of the European Agreement are reproduced through dispersed local iterations, even in jurisdictions well beyond the Agreement’s formal scope.
In conclusion, au pair contracts highlight the slippage (rather than opposition) between ‘status’ and ‘contract’. On the one hand, the contracts cover typical employment matters (such as duties, wages, working hours and termination). The high level of detail and control in these contracts routinely indicates the presence of an employment relationship. Contracts likewise pronounce parties as rational and voluntary negotiators, relying on the fiction of free choice and arms length bargaining to obscure the wider inequalities in the political economy of migrant care work. But on the other hand, the medium of contract is also used as an expressive space to rehearse au pairs’ special status as being part of the family and therefore different to ordinary workers. The contracts go beyond the work itself to govern identities, behaviour and relationships. The contracts are used as a means for the au pair to figuratively become ‘part of the family’, and as Adelle Blackett might put it, submit to the ‘law of the household’.[3] Contrary to a hostile worlds view of the family and the market, in the case of au pairing status and contract are messily entangled. In addition, contracts emerge as a medium for legal encounters between private households and a more distant European legal order. These encounters obfuscate the applicability of local labour laws and help to reinscribe the notion of au pairing as a ‘special category’ of non-work.
[1] See Janet Halley, ‘What Is Family Law?: A Genealogy Part I’ (2011) 23 Yale Journal of Law & the Humanities 1; Frances E Olsen, ‘The Family and the Market: A Study of Ideology and Legal Reform’ (1983) 96 Harvard Law Review 1497; Adelle Blackett, Everyday Transgressions: Domestic Workers’ Transnational Challenge to International Labor Law (Cornell University Press 2019) 49–50.
[2] Viviana A Rotman Zelizer, The Purchase of Intimacy (Princeton University Press 2005).
[3] See Blackett (n 2) 14.
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