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ECJ: On-call duty may be working time

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On-call time can be working time according to Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (Working Time Directive) if the employee’s scope for organising his working time is objectively significantly restricted during this time – according to the European Court of Justice (ECJ) Cases C-580/19 and C-344/19 of March 09 2021.

1.Facts

The plaintiffs were a firefighter from Offenbach and a Slovenian technician who claimed remuneration for on-call time. Both plaintiffs were free to choose their place of stay during the on-call time, but they had to be reachable and able to reach their respective place of work within a short time. The firefighter had an emergency vehicle at his disposal for this purpose. The Slovenian technician, who was in charge of the functioning of television transmitters in the Slovenian mountains, had a company flat at his disposal for the on-call times. Due to the inaccessible location of the transmitters, he was de facto forced to stay in the company flat.

Both plaintiffs were of the opinion that these were working hours subject to remuneration – irrespective of whether work was actually performed during these times. The national courts involved referred the question to the ECJ as to what extent on-call time should be qualified as working time or rest time within the meaning of the Working Time Directive.

2.Assessment of the ECJ

The ECJ ruled that on-call time could qualify as working time in the sense of the Working Time Directive – even if no actual work was performed during this time. The decisive criteria for the qualification of on-call time as working time was the extent to which the employee was able to freely organise the time and devote it to his own interests. Thus, it depends on the intensity of the restrictions to which the employee is subject, whereby particular importance is to be attached to the reaction time. In case the employee is objectively significantly impaired in this respect by restrictions imposed on him, it is a matter of working time. Such restrictions may be imposed by national law, collective agreements or by the employer.

If, on the other hand, the employee can freely decide on the organisation of this time during the on-call time, it is rest time, if the employee does not actually perform any work. Organisational difficulties that restrict the employee’s freedom of decision, e.g. as a result of natural circumstances, are not sufficient, on the other hand, to qualify on-call time as working time. The Luxembourg judges emphasised that it is up to the national courts to examine, within the framework of an overall assessment of all the circumstances of the individual case, whether on-call times are to be classified as working time. In addition to the response time, other criteria such as call frequency, consequences of not answering a call and the facilities granted to the employee, e.g. in the form of the provision of a company car, had to be taken into account.

3.Implications for Practice

The ECJ thus confirms its previous case law on the criteria under which on-call times are to be assessed as working time. In 2018, the court already ruled that on-call times are working time if the employer only gives the employee a very short time window – eight minutes in the case decided – to start work, cf. ECJ, decision of February 21 2018 – C-518/15. The Federal Labour Court (Bundesarbeitsgericht – BAG) also distinguishes between on-call times and working time according to how intensively the employee’s freedom to organise these times is impaired. Thus, in any case, time window requirements of 20 minutes or less to start work from a freely selectable location imply that on-call times are to be regarded as working time and not as rest time, cf. BAG decision of January 31 2002 – 6 AZR 214/00. However, whether on-call times are to be remunerated is a different question. This is because working time in the sense of the Working Time Directive or the German Working Time Act (Arbeitszeitgesetz ArbZG) is not necessarily congruent with working time in terms of remuneration. The Working Time Directive as well as the national working time regulations contain minimum provisions for safety and health protection in the organisation of working time. These are public law provisions, non-compliance with which can result in fines and penalties.

However, the regulatory classification of working time and rest times has at least indicative meaning as to whether remuneration is to be paid under labour law. On-call time, which is considered rest time in the sense of the Working Time Directive or the ArbZG, can therefore also constitute remunerated working time according to individual or collective agreements.

Employers should definitely explicitly regulate both the obligation to comply with the working time requirements under public law and the remuneration of on-call time.

As usual, we will keep you informed about the latest legislation and case law.

Dr. Lorenz Mitterer                                         Katharina Schlonsak

Lawyer                                                            Lawyer

Specialist Lawyer for Employment Law

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