Many Employers who are permanently seeking for new flexible work schedules, have implemented the so called “on call” work. Since its appearance, there has been a constant debate regarding the remuneration of the “on call” work and correct qualification from a labour law perspective.
In a recent decision, the Court of Justice of the European Union (ECJ) has passed a judgement clarifying main aspects regarding the “on call” work and working time.
What is “on call“ work?
The concept of “on call” work implies that the employee is not permanently fulfilling job duties, but is at the employer’s disposal for solving job- related tasks which may appear. This may take place either remotely, while away from the working place, or by reaching the place of work within a certain (short) period of time.
In most cases, the period of time during which the employee has to be available is fixed, with the “on call” employees being organized in shifts. Such type of working time organization is mostly used for activities destined for permanently covering uncertain, but urgent cases, e.g. 24 h technical support for malfunctions of important equipment, emergency services in various cases, etc.
During the “on call” period, the employee is, in most cases, free to move and to use his time. However, he must be able to solve job related tasks, which requires him to actively work for limited periods of time during his shift. This raises the question whether “on call” time is wirking time or not. Most employers do not pay the employee for the entire on call period, but only for the hours in which he is active and solves his tasks.
Judgement of the Court
The dispute concerned the case of a fire fighter who had to be “on call” (on duty) for an entire shift period. During this period, he was at the employer’s disposal, but remunerated only for the actual interventions which required his physical presence, while the stand-by period was not remunerated.
The legal basis for the decision is the Working Time Directive (hereinafter “the Directive”), which contains definitions of “working time”, “rest periods” etc. but also possibilities for the Member States to provide certain derogations.
The Court appreciated that the Directive seeks to ensure a minimum protection applicable to all workers of the Union. For that purpose, and in order to ensure that it is fully effective, the definitions provided for in Article 2 thereof, regarding „working time” and „rest periods” may not be interpreted differently according to the law of Member States, but have an autonomous meaning specific to EU law.
The Court considers that the determining factor for the classification of “working time”, within the meaning of the Directive is the requirement that the worker be physically present at the place determined by the employer and available to the employer in order to be able to provide the appropriate services immediately in case of need.
In case the worker must be permanently accessible without being required to be physically present at the place of work, only time linked to the actual provision of services must be regarded as ‘working time’, within the meaning of Directive 2003/88.
In the Matzak case, the fire fighter had to reply calls from his employer and reach his place of work within 8 minutes. On the other hand, the activity required him to be physically present at the place determined by the employer. In this case the Court appreciated that these conditions objectively limit the opportunities which a worker has to devote himself to his personal and social interests, and therefore the entire stand-by period must be considered as “working time”.
The Court considered that the Directive does not govern the question of workers’ remuneration, as that aspect falls outside the scope of the European Union’s competence. It stated that the Member States can provide in their national law that the remuneration of a worker in ‘working time’ differs from that of a worker in a ‘rest period’. Nevertheless if a certain period in which the worker is at the employer’s disposal is qualified as “working time”, it must be remunerated as such.
Through this judgement, the Court clarifies that, according to EU legislation, the employee must receive full remuneration for the entire period in which he is “on call”, at the disposal of the employer (this being considered normal “working time”) if the following conditions are cumulatively met:
- the employee cannot freely choose the place where he can stay during stand-by periods, due to the specificity of his work, being obliged for instance to stay at home;
- the employee must be able to reach his place of work within a short limited period of time, and be physically present to perform the task.
If both conditions are met, the Court considers that the employee has multiple constraints and limitations during his stand-by period, not being able to pursue his own interests. In this case, he must be fully remunerated for the entire „on call” period, this being considered working time.
Given this judgement of the ECJ, employers could face remuneration requests from their “on call” employees. Each case of “on call” work should be analysed separately, taking into consideration its specific circumstances, in order to correctly qualify it and to assess remuneration obligations.