The Court of Justice of the European Union (CJEU) in Ville de Nivelles v Matzak considered the case of Mr Matzak (M) who was a volunteer retained firefighter for the Belgian town of Nivelles. When M was on ‘stand-by duty’ he had to be contactable and within 8 minutes travel time of his fire station. All staff were paid an annual allowance for stand-by shifts and M brought a claim asserting that he had not been paid appropriately for this time.

The CJEU, having decided that M was a worker, had to consider whether stand-by time was working time. The Advocate General had previously given the opinion that the quality of time a worker spends on stand-by is more important than any restriction on where they should be; however the CJEU rejected this suggestion saying that the intensity of work did not determine whether time was working time or a rest period.

The CJEU decided that when a worker has to be physically present at a place determined by their employer (including their own home) and available to work at short notice, which thus makes it impossible for the worker to choose where they want to be at that time, then that time falls within the worker’s normal working duties.

In this case M’s stand-by time was therefore working time under WTD.

Graham Irons comments:

"This case is important for employers with workers who are required to be ‘on call’. The greater the restrictions on a worker when “on call” (but not working) the more likely it is that the on call period will be regarded as working time. This may then have implications in relation to compliance with rest periods, working hours and the National Minimum Wage.”.