BLOG -


Time spent on your own Sofa is Working Time?

(European Court of Justice (ECJ), Judgment of 21 February 2018 in Case C-518/15

Villes de Nivelles v Rudy Matzak
)

Facts of the case

Rudy Matzak had worked as a voluntary fire fighter for the Belgian city of Nivelles since the 1980s. In addition to normal working hours, he had to spend one week each month on stand-by. During such weeks, he had to spend evenings and weekends at home, ready to respond and be at the Nivelles fire station in just eight minutes in the case of an emergency. Mr Matzak viewed this time spent on stand-by as working time and claimed payment for it.

Decision of the Court

The ECJ shared Mr Matzak’s view. As he had to be at the fire station within only eight minutes, the time that Mr Matzak spent on stand-by constituted working time (and not rest time) within the meaning of EU law. The requirement, that he be at work within such a short time period meant that Mr Matzak did not have the opportunity to dedicate himself to other activities while he was on stand-by. These periods should therefore be qualified as working time.

Practical consequences

The ECJ judgment confirms the jurisprudence of the Federal Labour Court (Bundesarbeitsgericht) and boosts legal certainty. The individual case is yet still decisive. In the present case, even according to German jurisprudence, the time spent at home is not real on-call duty. If one applies the principles of this case in Germany, any time that an employee must spend in a particular place, ready for call outs, must be considered stand-by time within the meaning of the case law. Stand-by is a situation in which an employer requires a worker to spend time in a set location while on call, in order to ensure that the worker is able to reach his place of work as quickly as possible. It will also be considered stand-by time, therefore, when the employer does not specifically require the worker to spend that time at his workplace, but does require the worker to be at that workplace within a specific period of time, when required. For all practical purposes, this requirement places a geographical constraint on where the worker spends his time, so that he is not really free to choose where he spends it. In this respect, a distinction must be made between stand-by time and on-call duty. Real on-call duty allows a worker to actually choose where they spend their time and, in the case of an emergency, allows them to either be contactable where they are or to make their way to their place of work. On-call duty is not considered working time, except where the employee is required for an emergency. In contrast, stand-by time is clearly working time.

Practical tip

The ECJ judgment does not affect the level of remuneration for the various types of working time, as the judgment only defines stand-by time as working time in accordance with the laws on working time for the health and safety of workers. Instead, national laws apply to the question of the level of remuneration for stand-by time. The relevant provisions of the employment contract, collective agreement or works agreement are decisive in this regard. According to a recent decision of the Bundesarbeitsgericht (Case No.: 5 AZR 716/15), workers must at least be paid minimum wage for any stand-by time. In light of this recent judgment, employers should verify which of the various types of working time apply within their company and make best use of the scope of action available to them.

If you have any questions related to this topic, please feel free to contact br /> Martin Biebl /a>(Lawyer, Specialist Lawyer for Labour Law)