In the case of Ville de Nivelles v Matzak the CJEU were asked to consider whether Mr Matzak, a Belgian volunteer firefighter, should be paid for all the hours he spent on “stand-by duty” for the Neville public fire service. The system under which he worked only allowed for an annual allowance to be paid in respect of stand-by duties but this did not equate in Mr Matzak’s view to adequate remuneration for his time, which he asserted should be classed as working time. Matzak’s view was borne out of the fact that the following stringent conditions were placed on him during periods of stand-by:
- He must reside in a place which is no more than 8 minutes from the Neville fire station.
- He must remain within range of various technical means used to call staff.
- He must respond immediately to a call when on stand-by.
In arriving at a decision on this issue the CJEU had to look closely at the wording of the Working Time Directive (2003/88/EC) and arrive at a finding in relation to each of the following points:
- Can Member States interpret Article 17 of the Working Time Directive as excluding certain categories of firefighter from the provisions of working time and rest periods?
- Can Member States retain or adopt a less restrictive definition of working time?
- Can working time be interpreted to the effect that it is not applicable to remuneration owed for home-based on call time?
- Does the directive prevent home-based on call time being regarded as working time when the constraints placed on the worker significantly restrict the workers opportunity to carry out other activities?
In response to each of these questions the CJEU ruled:
Working time and rest periods as set down in Article 17 applies to all categories of firefighter, including volunteers.
Member states must not retain or adopt a less restrictive definition of working time but they can, if they so wish, adopt a definition which is more favourable to workers.
The Directive does not govern the issue of workers’ pay. Accordingly, Member States are not required by Article 2 of the Directive to determine the remuneration of periods of stand-by time.
Article 2 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".
What does this mean going forward?
If employers ask workers or employees to be on-call/stand-by at home, they should be mindful of placing tight constraints on the individuals in terms of:
their geographical proximity to the workplace;
travel time from home to the workplace; and
conditions which significantly restrict the workers or employees ability to pursue their own personal activities.
All of the above may have the effect of catapulting the on-call/stand-by into "working time". This may raise issues as to whether the worker or employee has received national minimum wage for all hours’ worked and also adequate rest between shifts.
Whether any conditions imposed by employers will be classed as “significantly restricting” is a matter that would be determined on a case by case basis. In view of this, the best practice approach would appear to be for employers to avoid, where possible, impacting on the freedoms of the worker or employee to do non work related activities whilst they are on-call/stand-by.