New judgements on stand-by schemes and working time

Three years after the significant ‘Matzak’ verdict of the Court of Justice of the European Union (C-518/15), the Court addressed again the fine line between working time and rest periods under the provisions of Directive 2003/88 and came to new refined conclusions regarding the interpretation of stand-by periods.

Three years after the significant ‘Matzak’ verdict of the Court of Justice of the European Union (C-518/15), according to which stand-by time which a worker spends at home with the duty to respond to calls from his employer within a short timeframe must under certain conditions be regarded as working time, the Court addressed again the fine line between working time and rest periods under the provisions of Directive 2003/88 and came to new refined conclusions regarding the interpretation of stand-by periods.

On 9 March 2021, the CJEU published two judgments with particular significance for workers involved in stand-by schemes. In the first case (C-344/19, D.J. v Radiotelevizija Slovenija), a technician who was responsible for ensuring the operation of TV transmission in a hard-to-reach territory (mountain) in Slovenia, provided stand-by services for six hours per day, according to a stand-by system. Although he was not obliged by his employer to remain at the transmission center, he could not go to his home during the stand-by time because of the difficulty to return to the center quickly if needed (in 1 hour after the call). For this reason, he had to stay in service accommodation placed at his disposal by his employer.

In the second case (C-580/19, RJ v Stadt Offenbach am Main), the Court was asked to give a preliminary ruling upon a request that was made in proceedings between a firefighter and Stadt Offenbach am Main concerning the remuneration claimed by the firefighter for services consisting in stand-by time according to a stand-by system. The firefighter was a public official who in additional to his regular service hours was obliged to be reachable at any time. More specifically, he had to have his service uniform and vehicle with him and be able to reach the Offenbach am Main town boundary within 20 minutes after the call. For this service, the firefighter requested that his waiting time be recognized as working time and that he be remunerated accordingly.

To answer to the question when and under which circumstances stand-by time constitutes working time under Article 2 of Directive 2003/88, the Court expressed the following considerations:

  • With regards to both cases, it recalled that the national courts are responsible to examine whether the periods of stand-by time must be classified as “working time” within the meaning of Directive 2003/88 based on objective criteria.
  • In relation to both cases, it noted that the terms “working time” and “rest period” of the Directive are mutually exclusive, meaning that a worker’s time on stand-by periods must be classified as either ‘working time’ or a ‘rest period’, since the Directive does not provide for any intermediate category and it also confirmed that a period during which no actual activity is carried out by the worker for the benefit of his or her employer does not necessarily constitute a “rest period”.
  • On case C-344/19, it noted that, when the worker does not have a realistic option of leaving the workplace after the completion of his or her working hours, these periods automatically constitute working time only when there are objective and very significant constraints that prevent the worker from leaving the workplace, such as “the obligation to be immediately available to his or her employer”, and not solely due to the particular nature of the territory of the workplace that may be difficult to approach.
  • Regarding both cases, it ruled that the concept of “working time” under the provisions of the Directivecovers the entirety of periods of stand-by time, including those according to a stand-by system, during which the constraints imposed on the worker are such as to affect, objectively and very significantly, the possibility for the latter freely to manage the time during which his or her professional services are not required and to pursue his or her own interests. Conversely, when there are not such constraints, only the time linked to the provision of work actually carried out during that period constitutes working time. Furthermore, these constrains should be imposed on the worker by the law, the collective agreement, or the employer, while organizational difficulties are not considered as relevant.
  • Finally, also in relation to both cases, it emphasised that Directive 2003/88 does not cover the remuneration for stand-by periods. As a result, the remuneration for these periods can differ from the remuneration provided for periods during which actual work is provided.

Based on these thoughts, the Court held that only in case C-580/19 there were “objective and very significant constraints” that justify the classification of the stand-by time as working time. More specifically, the verdict of the Court was that the stand-by time during which a worker must be reachable within 20 minutes, in uniform and with their service vehicle, constitutes, in its entirety, working time.

On the contrary, in terms of case C-344-19, a period of stand-by time, during which the worker is required only to be reachable by telephone and able to return to the workplace in 1 hour, while being able to stay in service accommodation at that workplace, without being required to remain there, does not constitute, in its entirety, working time.

CESI Secretary General Klaus Heeger highlighted the importance of the recent Decisions and underlined their significance for workers who are involved in stand-by schemes:

“The Court confirmed that intense constraints imposed on a worker during his or her stand-by time do not allow the worker to freely manage this time and for this reason this period consists real working time that should be remunerated. Whether these constraints derive from the national law, a collective agreement, or the contract of employment, the ruling is clear: stand-by time that is subject to such constraints and does not allow the worker to pursue his or her interests is to be considered as work. These Decisions are another important step to bring clarity to the principles governing the application of the Working Time Directive.”

The full judgments as well as a press release with further information is available on the website of the CJEU.