When does ‘stand-by’ work constitute working time?
Andrew Buchan
In this blog Andrew Buchan considers Wednesday’s judgment by the Court of Justice of the European Union on stand-by work.
Judgment of 21 February 2018, Ville de Nivelles v. Rudy Matzak, Case C 518/15.
Why is this case important?
It explains the effect of the Working Time Directives on two different types of stand-by systems. One requiring ‘permanent accessibility’ (i.e. to be contactable off the work premises) and the other requiring him not only to be contactable but also providing ‘geographical and temporal constraints’.
The two situations have to be treated differently by the Courts. This case has ramifications, not just for fire-fighters but for all workers where their employer requires them to comply with criteria that significantly restricts their opportunities for activities outside work.
It is settled law that if the stand-by system requires that the worker be permanently accessible without being required to be present at the place of work, only time linked to the actual provision of services must be regarded as ‘working time’ (Jaeger, C‑151/02, EU:C:2003:437). This is so because, even if s/he is at the disposal of the employer, it must be possible to contact him or her. In that situation the worker can manage his or her time with fewer constraints and pursue his or her own interests.
The situation was different with Mr Matzak who was not only to be contactable during his stand-by time. He was, on the one hand, obliged to respond to calls from his employer within 8 minutes and, on the other hand, required to be physically present at the place determined by the employer. However, unlike previous cases, that place was within 8 minutes travel distance of, not at, his place of work.
The CJEU held that the obligation to remain physically present at the place determined by the employer and the geographical and temporal constraints resulting from the requirement to reach his place of work within 8 minutes were such as to objectively limit the opportunities which a worker in Mr Matzak’s circumstances has to devote himself to his personal and social interests.
In the light of those constraints, Mr Matzak’s situation differs from that of a worker who, during his stand-by duty, must simply be at his employer’s disposal inasmuch as it must be possible to contact him or her.
The facts
The facts of this case are simple. A volunteer Belgian fire-fighter was required to live and be on stand-by within 8 minutes of the Nivelles (the town) fire-station in order to be on hand for emergencies.
A provision in his contract stated:
“…the [professional staff and volunteer staff] … shall meet the following residence requirements:
1 for staff assigned to the Nivelles fire station:
be domiciled or reside in a place so as not to exceed a maximum of 8 minutes to reach the Nivelles fire station when traffic is running normally and complying with the Highway Code.
During periods of stand-by duty, every member of the volunteer fire service serving in the Nivelles fire station must:
remain at all times within a distance of the fire station such that the period necessary to reach it when traffic is running normally does not exceed a maximum of 8 minutes;
be particularly vigilant so as to remain within range of various technical means used to call staff and to leave immediately, by the most appropriate means, when staff on stand-by duty are called.
The town refused to pay for his stand-by hours. After he had finished his one year probation, he sued the town for refusing to pay for his ‘stand-by’ hours.
Belgian litigation
Nivelles Labour Court upheld Mr Matzak’s action to a large extent. The town appealed to the Brussels Higher Labour Court. The Higher Labour Court was uncertain whether the stand-by services could be considered to fall within the definition of working time, within the meaning of Directive 2003/88.
The question for the Court of Justice
The Court stayed proceedings and referred the following question to the Court of Justice for a preliminary ruling:
‘(4) Does Directive 2003/88 … prevent home-based on-call time from being regarded as working time when, although the on-call time is undertaken at the home of the worker, the constraints on him during the on-call time (such as the duty to respond to calls from his employer within 8 minutes) very significantly restrict the opportunities to undertake other activities?’
Working Time
Article 2 of Directive 2003/88, entitled ‘Definitions’, provides in paragraphs 1 and 2 the following definitions:
‘1. “working time” means any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice;
2. “rest period” means any period which is not working time.’
The Decision
Article 2 of Directive 2003/88 must be interpreted as meaning that stand-by time which a worker spends near his workplace with the duty to respond to calls from his employer within 8 minutes, very significantly restricting the opportunities for other activities, must be regarded as ‘working time’.
Thus, assuming the Belgian Court is satisfied that the criteria have been applied, Mr Matzak is entitled to his money.
The CJEU, emphasised that the Working Time Directives provided a minimal level of protection and it is open to member states to provide for better protection. In response to other questions posed by the Brussels Higher Labour Court, the CJEU also decided that:
Article 17(3)(c)(iii) of Directive 2003/88/EC must be interpreted as meaning that the Member States may not derogate, with regard to certain categories of firefighters recruited by the public fire services (e.g. volunteers or full-timers), from all the obligations arising from the provisions of that Directive, including Article 2.
Article 15 of Directive 2003/88 must be interpreted as not permitting Member States to maintain or adopt a less restrictive definition of the concept of ‘working time’ than that laid down in Article 2 of that directive.
Article 2 of Directive 2003/88 must be interpreted as not requiring Member States to determine the remuneration of periods of stand-by time dependent upon whether those periods are ‘working time’ or a ‘rest period’.
References
Directive 2003/88 & Council Directive 93/104/EC
(Simap, C‑303/98, EU:C:2000:528, paragraphs 48 -49) where it was held that the physical presence and availability of the worker at the place of work during the stand-by period with a view to providing his professional services must be regarded as carrying out his duties, even if the activity actually performed varies according to the circumstances.
(Jaeger, C‑151/02, EU:C:2003:437, paragraph 63, and Grigore, C‑258/10, not published, EU:C:2011:122, paragraph 53). The determining factor for the classification of ‘working time’, within the meaning of Directive 2003/88, is the requirement that the worker be physically present at the place determined by the employer and to be available to the employer in order to be able to provide the appropriate services immediately in case of need. In fact, those obligations, which make it impossible for the workers concerned to choose the place where they stay during stand-by periods, must be regarded as coming within the ambit of the performance of their duties.
The town and the Commission took a preliminary point that Directive 2003/88 was not concerned with remuneration but only Health and Safety. The CJEU was keen to decide the point and commented that that finding did not mean that there is no need to reply to the questions referred to the Court for a preliminary ruling.
There were three other questions but these are not relevant to this article. The decisions on these questions are summarised at the end.