Equivalence of stand-by times at home with working time

Are stand-by times at home considered as working time?
The matter has been brought to the Court of Justice of the European Union several times. Recently a dispute between a volunteer firefighter and the town of Nivelles was brought to court.

In August 1981 Mr Matzak entered the service of the town of Nivelles as a volunteer firefighter. 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, i.e. Mr Matzak’s home. Mr Matzak was also employed in a private company.

In December 2009, Mr Matzak brought judicial proceedings seeking an order that the town of Nivelles pay him a provisional sum of one euro by way of damages and interest for failure to pay remuneration for his services as a volunteer firefighter during his years of service, particularly for his stand-by services.

The Nivelles Labour Court upheld Mr Matzak’s action to a large extent. The town of Nivelles appealed against the judgment in the Brussels Higher Labour Court. By judgment of 14 September 2015, the referring court partially upheld the appeal. As regards the remuneration claimed for stand-by services which, according to Mr Matzak, must be categorised as working time, the referring court is uncertain whether such services may be considered to fall within the definition of working time, within the meaning of Directive 2003/88. In those circumstances, the Higher Labour Court decided to stay the proceedings and to refer four questions to the Court of Justice of the European Union for a preliminary ruling.

In short these are the main lines of the answers of the European Court:

• The directive effectively applies to firefighters.
• Member States are not entitled to alter the definition of ‘working time’, within the meaning of Article 2 of the directive, but they are free to adopt in their national legislation provisions providing for periods of working time and rest periods which are more favourable to workers than those laid down in that directive. In other words, Member States are not allowed to adopt (or maintain) a less restrictive definition of the concept of ‘working time’ than that laid down in the definition of the directive 2003/88.
• 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.  
• 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 to have other activities, must be regarded as ‘working time’. Furthermore, the Court reminds 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 to be available to the employer in order to be able to provide the appropriate services immediately in case of need.

What have we learned from this judgement?

In order to avoid, as far as possible, that the stand-by times at home be classified as working time:

• the employee must not be obliged to remain physically present at the place determined by the employer (even if that is his home);
• a reasonable term must be provided for the employee to respond, taken into account the place at which the stand-by duty is performed.

Furthermore, the stand-by rules should be the object of specific provisions in the work regulations and the employment contract of the persons concerned.

Source: judgment of the Court of Justice of the European Union of 21 February 2018 (case C-518/15, Matzac/town of Nivelles).

Author: Brigitte Dendooven

13/03/2018