Working hours or rest period on standby duties – new judgements from the EU Court of Justice
1 Introduction
The European Court of Justice recently pronounced two judgments on the demarcation between "working time" and "rest period" under the Working Time Directive (Directive 2003/88 / EC) Article 2, in cases where the employee is on standby duty without being required to stay at the workplace. Among other things, the judgments are important for the interpretation of the Working Environment Act § 10-1, which defines what is "working hours" and "off-duty time" within the meaning of the Act.
The Working Time Directive is incorporated into the EEA Agreement, and the definitions in the Working Environment Act § 10-1 must therefore be interpreted in the light of the directive. In other words, the demarcation between "working hours" and "off-duty time" under the Working Environment Act must be drawn in the same way as the demarcation between "working hours" and "rest period" under the Directive.
The judgments are also important for the interpretation of the Working Environment Act § 10-4 third paragraph, which stipulates a main rule that at least 1/7 of a period of standby duty outside the workplace shall be included in normal working hours. However, this only applies if the entire period is not to be regarded as working time according to the Working Environment Act § 10-1 and the Working Time Directive.
The verdicts were handed down after a so-called submission for preliminary ruling to the European Court of Justice. In such cases, the European Court of Justice does not rule in the national litigation, but rules on the questions of interpretation that the case raises.
2 Factual information in the cases submitted to the Court of Justice
Case C-344/19 (D.J. v. Radiotelevizija Slovenija) concerned an employee who performed work as a technical specialist at two television transmission centres located in the mountains of Slovenia. In addition to the normal work, the employee had periods of standby duty without a requirement to stay at the workplace. During these periods, the employer should be able to contact the employee by telephone, and the employee should, if necessary, return to the workplace within a period of one hour. Due to the distance from the employee's place of residence to the transmission centres, and the fact that it was sometimes difficult to get to these, the employee had access to a service accommodation at the workplace where he stayed during the standby duty period.
Case C-580/19 (R.J. v. Stadt Offenbach am Main) concerned a firefighter who, during standby duty, was to answer the calls he received, and if necessary, meet at the city boundary where he had a duty station with emergency clothing and the emergency vehicle within 20 minutes. He could, when called for, make use of special and priority rights in traffic.
3 Statements by the EU court on evaluation criterion and other aspects
In the two judgments, the European Court of Justice ruled on the evaluation criterion and which aspects that were relevant to consider in the assessment of whether a period of standby duty, without a requirement for staying at the workplace, as a whole is to be regarded as working time.
The European Court of Justice emphasized, in line with previous case law, that a period of standby duty is either "working time" or "rest period" under Article 2 of the Directive, and that these terms are mutually exclusive. If the period is not considered working time, then only the time when the employee actually performs work is working time, while the rest of the period is a rest period.
The Court further held that whether periods of standby duty without a requirement to stay at the workplace as a whole is to be regarded as working time, depends on an overall assessment of whether the restrictions imposed on the employee during these periods objectively and to a very significant extent affect the employee's ability to freely dispose of the time when the person does not actually have to work.
The court emphasized that only the restrictions imposed on the employee by legislation, collective agreement or by the employer are relevant in the overall assessment. According to the Court, organizational difficulties which the standby duty period creates for the employee, and which are a consequence of the employee's free choice or natural factors, such as the distance between place of residence and place of work, cannot be taken into account.
The fact that there are few leisure activities in the area that the employee in practice cannot leave during the standby duty, or that the workplace is difficult to access, are also not relevant circumstances in the demarcation between working hours and rest periods.
Of the factors in the assessment of whether a period of standby duty without a requirement to stay at the place of work as a whole constitutes working time, the Court first emphasized the length of the time limit for returning to the place of work. According to the Court, however, the effect of the time limit cannot be assessed insulated, and the Court emphasized that other limitations and facilities during the standby duty period must be considered.
In C-580/19, the employee's duty to wear equipment at attendance was cited as an example of such other restrictions, while the fact that the employee had a service vehicle at his disposal with special and priority rights in traffic was an example of a facility that had to be considered when assessing the effect of the time limit.
Secondly, in the two judgments, the Court highlighted the average frequency of the performance that the employee must provide during the standby duty as a factor in the overall assessment, and thirdly the duration of the performance that the employee must normally provide during the standby period.
