Chapter I – Qualifying time spent on-call as “working time” in the case-law of the Court of Justice of the European Union
Article 2, paragraph 1, of Directive 2003/88/EC of the European Parliament and of the Council from 4 November 2003 “concerning certain aspects of the organisation of working time” defines the notion of “working time” as “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”. According to paragraph 2 in the same article, the “rest period” means “any period which is not working time”.
In established case-law, “the notions of ‘working time’ and ‘rest period’ are mutually exclusive”[1]. The Court of Justice of the European Union (hereinafter CJEU) does indeed stress that the Directive “does not provide for any intermediate category between working time and rest periods”[2]. Moreover, the CJEU considers that, “as EU law currently stands, the stand-by time spent by a worker in the course of his activities carried out for his employer must be classified either as ‘working time’ or ‘rest period’[3].
With regard to the Court’s case-law, the decisive factor in qualifying on-call time as “working time” is that “they are required to be present at the place determined by the employer and to be available to the employer in order to be able to provide their services immediately in case of need”[4].
As a result, on-call time in the workplace has, for a long time, been considered as “working time”, even if there are no services actually being provided during these on-call periods.
In the Simap judgement, the CJEU thus considered that “time spent on call by doctors in primary health care teams must be regarded in its entirety as working time”[5]. In the Jaeger judgement, the Court similarly considered that “on-call duty performed by a doctor where he is required to be physically present in the hospital must be regarded as constituting in its totality working time for the purposes of that directive even where the person concerned is permitted to rest at his place of work during the periods when his services are not required”[6].
On the other hand, according to the Court, the “periods when a doctor is inactive during on-call duty where he is required to be physically present in the hospital”[7] did not constitute “working time”. The Court had issued an identical ruling regarding the “situation where doctors in primary care teams are on call by being contactable at all times without having to be at the health centre[8]. Consequently, this time spent on call falls into the residual category of “rest periods”[9].
In the Simap judgement, the Court did indeed rule that, “Even if they are at the disposal of their employer, in that it must be possible to contact them, in that situation doctors may manage their time with fewer constraints and pursue their own interests. In those circumstances, only time linked to the actual provision of primary care services must be regarded as working time within the meaning of (the) Directive”[10].
There was still, however, one uncertainty: does time spent on-call at home (or anywhere else outside the workplace) constitute working time when the constraints on the worker are such that he or she cannot devote himself or herself to his or her own interests?
In a decree issued on 14 September 2015, the Labour Court of Brussels questioned the CJEU on this point: “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?”. The dispute concerned stand-by services provided by volunteer firefighters in a Belgian municipality.
The response was provided by the CJEU in its Matzak ruling on 21 February 2018:
“61. In the case in the main proceedings, (…) Mr Matzak 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, that place was Mr Matzak’s home and not, (…) his place of work.
- In that regard, it should be pointed out that, according to the Court’s case-law, the concepts of ‘working time’ and ‘rest period’, within the meaning of Directive 2003/88, constitute concepts of EU law which must be defined in accordance with objective characteristics, by reference to the scheme and purpose of that directive, which is intended to improve workers’ living and working conditions (judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 27).
- 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 are 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.
- In those circumstances, it is necessary to interpret the concept of ‘working time’ provided for in Article 2 of Directive 2003/88 as applying to a situation in which a worker is obliged to spend stand-by time at his home, to be available there to his employer and to be able to reach his place of work within 8 minutes.
- It follows from all the foregoing that the answer to the fourth question is that Article 2 of Directive 2003/88 must be interpreted as meaning that stand-by time which a worker spends at home 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’”[11].
In an innovative way, the Court therefore considers that on-call time during which a worker must not only be reachable but must also, on the one hand, be physically present at a location of the employer’s choosing (even if this is his or her home) and, on the other hand, arrive at his or her workplace in a very short space of time, constitutes “working time” in the meaning of the Directive.
The criterion used by the Court to classify these periods of on-call time as “working time” therefore lies in the geographical and temporal constraints imposed upon the worker, which are such as to objectively limit the opportunities a worker has to devote himself to his personal and social interests[12]. The qualification of “working time” must therefore undergo an in concreto assessment, taking into account the constraints imposed upon a worker when he or she is on-call at home.
In conclusion, a distinction must now be made between:
- On-call time as part of a system of being physically required to be present at the place of work which constitutes “working time”;
- On-call time as part of a system based on being on stand-by in which the worker is not required to be physically present at a location determined by the employer but simply has to be contactable, which is not qualified as “working time” unless it concerns time related to the actual performance of work;
- On-call time according to an “availability” system requiring a worker to be physically present at a location determined by the employer, located outside of the place of work (even if this is his or her home), to remain contactable and able to reach the place of work at short notice, which also constitute “working time”.
Chapter II – The consequences of the Matzak judgement for the healthcare sector
The lessons learned in the Matzak judgement can also be transposed to other professional sectors. This is especially the case for the healthcare sector[13], which has given rise to the first rulings to be handed down by the CJEU concerning whether to qualify on-call time as “working time”[14].
Medical activity falls within the scope of Directive 2003/88[15].
This transposition is likely to be of interest to all “workers” in the medical sector (doctors, nurses, etc., inside and outside of hospitals), who are required to spend time on-call outside of the place of work.
The Directive, however, does not apply to self-employed medical personnel[16]. In established case-law, it is aimed at “any person who pursues (…) for a certain period of time for and under the direction of another person services in return for which he receives remuneration”[17].
The Directive grants Member States the option to provide for certain derogations from the Community regime applicable to the organisation of working time – especially for activities where service continuity has to be guaranteed, as in hospitals[18] – but this option does not apply to the definition of the notion of “working time”[19]. Indeed, established case-law has it that this notion is subject to autonomous interpretation in Community law[20]. It then follows that the notion of “working time” as interpreted by the CJEU in the Matzac judgement, applies uniformly in the different Member States of the European Union.
In the light of this case-law, it may be considered that on-call time for medical personnel, based on an “availability” system requiring a worker to be physically present in a location determined by the employer, outside of the workplace (even if this is his or her home), to remain contactable and to be able to arrive at the workplace at short notice constitute “working time”.
The question of geographical and temporal constraints imposed upon a worker do, however, need to be assessed in concreto. In the Matzak case, the obligation to arrive at the workplace within 8 minutes was considered such a constraint that the on-call time had to be considered working time. It cannot be ruled out, however, that in another specific case, a different view may be reached with regard to the constraints placed upon the worker in question, a fortiori in the domain of healthcare.
It therefore appears difficult to define a uniformly permitted cut-off point between “working time” and “rest periods”. By way of example, in Austria, the Supreme Court declared that on-call time that requires a worker to arrive at the workplace in 30 minutes qualifies as a rest period[21]. The Supreme Court of Finland, however, ruled that requiring an on-call employee to arrive at his or her workplace within 5 minutes is so restrictive that on-call time had to be considered working time. A different decision was reached concerning the obligation to present at the workplace within 15 minutes[22].
Finally, some authors go as far as to argue that regardless of timing considerations, any on-call period spent outside the workplace in which a worker is required to travel to the workplace (or another location) urgently at the request of the employer could be considered working time[23].
Chapter III – Remuneration of on-call periods
Qualifying time spent on-call at home as working time raises the legitimate question of how to remunerate this on-call time.
Yet, as the Court reaffirmed in the Matzak judgement, established case-law states that:
“24. Directive 2003/88 (…) is limited to regulating certain aspects of the organisation of working time in order to protect the safety and health of workers so that, in principle, it does not apply to the remuneration of workers.
(…)
- it is common ground that Directive 2003/88 does not govern the question of workers’ remuneration, as that aspect falls outside the scope of the European Union’s competence by virtue of Article 153(5) TFEU.
- Therefore, although Member States are entitled to determine the remuneration of workers falling within the field of application of Directive 2003/88, according to the definition of ‘working time’ and ‘rest period’ in Article 2 of that directive, they are not obliged to do so.
- Thus, Member States may lay down in their national law that the remuneration of a worker in ‘working time’ differs from that of a worker in a ‘rest period’, and even to the point of not granting any remuneration during the latter type of period.
- Having regard to the foregoing, the answer to the third question is that Article 2 of Directive 2003/88 must be interpreted as not requiring Member States to determine the remuneration of periods of stand-by time such as those at issue in the main proceedings according to the classification of those periods as ‘working time’ or ‘rest period’”[24].
This means that the question of remunerating working time remains a competence of the Member States.
According to the Court, Member States may adopt national legislation to determine worker remuneration according to the Community definition of working time but they are not obliged to do so under Community law.
Questions could still, however, be asked about the legality of a national system which does not allow on-call periods to be remunerated and which yet recognises them as “working time”. From the moment that a worker is considered to be on working time during an on-call period, he or she enters into an “employment relationship” with the employer. The CJEU has consistently held that “the defining feature of an employment relationship resides in the fact that for a certain period of time a person performs for and under the direction of another person services in return for which he receives remuneration”[25]. Therefore, an on-call worker must be paid. Otherwise, this would be a violation of the international and national rules guaranteeing respect for the principle of equality and non-discrimination.
The Court, however, permits, Member States to remunerate actual working time and on-call time differently.
Thus, in the Vorel judgement, the Court considered, on the matter of on-call time spent in the workplace, that “Directives 93/104 and 2003/88 do not prevent a Member State applying legislation on the remuneration of workers and concerning on-call duties performed by them at the workplace which makes a distinction between the treatment of periods in the course of which work is actually done and those during which no actual work is done, provided that such a system wholly guarantees the practical effect of the rights conferred on workers by the said directives in order to ensure the effective protection of their health and safety”[26].
In the same way, it can be considered that on-call time spent at home could be remunerated differently from actual working time, and even that on-call time at home could be remunerated differently from on-call time spent at the workplace.
In any event, when regulating the remuneration of on-call time, Member States must agree:
- not to betray the underlying logic of the Directive’s provisions relating to the maximum weekly working time (regulating certain aspects of working time organisation to ensure protection for the health and safety of workers)[27]: indeed, “if time considered working time was paid less than the actual time worked, the worker’s overall remuneration (…) would be reduced without the worker being able to compensate for this reduction by working more hours (on-call or actual work), taking into account the maximum duration of work (set by Directive 2003/88)”[28];
- to respect international and national rules guaranteeing respect for the principle of equality and non-discrimination combined, where applicable, with the right to a fair wage enshrined in particular in the European Social Charter.
References
[1] E.C.J., 3 October 2000, C-303/98, Simap, paragraph 47; E.C.J., 10 September 2015, C-266/14, Federacion de Servicios Privados del sindicato Comisiones obreras, paragraph 26 and E.C.J., 21 February 2018, C-518/15, Matzak, paragraph 55.
[2] E.C.J., 1 December 2005, C‑14/04, Dellas e.a., paragraph 43.
[3] E.C.J., 21 February 2018, C-518/15, Matzak, paragraph 55.
[4] E.C.J., 9 September 2003, C-151/02, Jaeger, paragraph 63.
[5] E.C.J., 3 October 2000, C-303/98, Simap, paragraph 52.
[6] E.C.J., 9 September 2003, C-151/02, Jaeger, paragraph 71. In the same sense, see E.C.J., 1 December 2005, C‑14/04, Dellas e.a., paragraphs 46 and 47, regarding the on-call time of a special needs teacher: “on-call duty performed by a worker where he is required to be physically present on the employer’s premises must be regarded in its entirety as working time within the meaning of Directive 93/104, regardless of the work actually done by the person concerned during that on-call duty. The fact that on-call duty includes some periods of inactivity is thus completely irrelevant in this connection”.
[7] E.C.J., 9 September 2003, C-151/02, Jaeger, paragraph 65.
[8] E.C.J., 3 October 2000, C-303/98, Simap, paragraph 50.
[9] Similarly, see the conclusions of Advocate General Eleanor Sharpston presented on 26 July 2017 in the case C-518/15, paragraphs 50 and 52.
[10] E.C.J., 3 October 2000, C-303/98, Simap, paragraph 50. Similarly, see. E.C.J., 21 February 2018, C-518/15, Matzak, paragraph 60.
[11] E.C.J., 21 February 2018, C-518/15, Matzak, paragraphs 61 to 66.
[12] The Advocate General Eleanor Sharpston believed that it was not the location, whether it was imposed by the employer or not, that mattered in qualifying on-call time at home as “working time”, but rather the quality of the time available to the worker during on-call periods. Thus, “it is necessary to have regard to the quality of the time that the worker may enjoy when on that type of duty, in the form of, for example, his ability to devote himself to his own interests and family. It is the quality of the time that is spent rather than the precise degree of required proximity to the place of work that is of overriding importance in this context.” (see the conclusions of the Advocate General Eleanor Sharpston presented on 26 July 2017 in the case C-518/15, paragraph 58).
[13] On this question in particular, see P. FOUBERT and J. PANIS “De sirene loeit niet enkel in de brandweerkazerne. Het arrest Matzak van het HJEU en de wachtdiensten van ziekenhuisartsen”, J.T.T., 2019/15, nr. 1339, p. 257-266.
[14] Since the Simap and Jaeger judgements, CJEU case-law has indeed been established in the sense that on-call time for medical personnel according to the system of having to be physically present in the workplace constitutes “working time”, unlike on-call time where the physical presence of this same personnel is not required.
[15] In the meaning of Article 1, paragraph 3, of Directive 2003/88, the latter “shall apply to all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC, without prejudice to Articles 14, 17, 18 and 19 of this Directive.”. In the Simap judgement, the Court did indeed consider that “the activity of doctors in primary health care teams comes within the scope of the basic Directive and Directive 93/104”. The dispute therefore concerned the question of the time spent on-call by a doctor in a health centre (E.C.J., 3 October 2000, C-303/98, Simap, paragraph 41). The Jaeger judgement in turn concerned the question of the on-call time of a hospital doctor.
[16] This finding of a legal vacuum can be qualified. Indeed, a certain restriction on the working time of hospital staff working under self-employed status is in line with the principles of protection of public health and patient safety, as well as work-life balance considerations. For more information, see, for example, the survey from M.C. RODRIGUEZ-JARENO, E. DEMOU, S. VARGAS-PRADA, K.A. SANATI, A. SKERJANC, P.G. REIS, R. HELIMAKI-ARO, E.B. MACDONALD, C. SERRA, “European Working Time Directive and doctors’ health: a systematic review of the available epidemiological evidence”, BMJ Open 2014, p. 14 (https://bmjopen.bmj.com/content/4/7/e004916).
[17] E.C.J., 21 February 2018, C-518/15, Matzak, paragraph 28.
[18] Article 17, paragraph 3, sub-section c), i) of the Directive allows Member States to grant derogations from certain provisions for “services relating to the reception, treatment and/or care provided by hospitals or similar establishments, including the activities of doctors in training, residential institutions and prisons”. In such a scenario, appropriate protection still has to be provided by laws, regulations, administrative provisions, collective agreements or agreements between the social partners (in this respect see paragraph 2 of article 17).
[19] E.C.J., 21 February 2018, C-518/15, Matzak, paragraphs 34 and 36.
[20] “Only such an autonomous interpretation is capable of securing for that directive full efficacy and uniform application of those concepts in all the Member States” (E.C.J., 9 September 2003, C-151/02, Jaeger, paragraph 58). See also E.C.J., 1 December 2005, C‑14/04, Dellas e.a., paragraph 44 and E.C.J., 21 February 2018, C-518/15, Matzak, paragraph 45.
[21] V. FERRANTE, “Between health and salary: The incomplete regulation of working time in European labour law”, in European Labour Law Journal, vol. 10, December 2019, p. 381, citing: Flash Reports on Labour Law, May 2018, National Report.
[22] Ibidem. See also finlex.fi/fi/oikeus/kko/kko/2015/20150049#idp446308848.
[23] Thus, applying this doctrine: “If the employee can freely choose where to spend his/her on-call duty, but must remain in close proximity to his/her workplace to be able to intervene immediately in case of necessity (no matter, in my opinion, how long it takes to reach the workplace), the standby time shall be considered as working time”. See also: “In short, working time requires the worker to be ready to perform a task that is not predictable and not delayable: like a sentinel, remaining at home, he/she must always be prepared to intervene, even when he/she is sleeping” (V. FERRANTE, op.cit., pages 383 and 384).
[24] E.C.J., 21 February 2018, C-518/15, Matzak, paragraphs 24 and 49 to 52. In the same direction, see also E.C.J., 1 December 2005, C‑14/04, Dellas e.a., paragraph 38 and E.C.J., 20 November 2018, C-147/17, Sindicatul Familia Constanta, paragraph 35.
[25] E.C.J., 21 February 2018, C-518/15, Matzak, paragraph 28 and E.C.J., 26 March 2015, C-316/13, Fenoll, paragraph 27.
[26] E.C.J., 11 January 2007, C-437/05, Vorel, paragraph 35.
[27] V. FERRANTE, op.cit., p. 376.
[28] F. LAMBINET et S. GILSON, “Les gardes à domicile des pompiers volontaires sous les feux de la rampe”, J.T.T., 2018, p. 250.
