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On call and working time – further case law developments

19 March, 2018

In a further development in relation to time spent ‘on call’, the Court of Justice of the European Union (CJEU) has confirmed that such time is to be counted as ‘working time’ – even if the worker is not actively engaged in work at the time.

This case addressed Mr Matzak, a volunteer firefighter of the Nivelles fire service in Belgium. Volunteer firefighters are paid an annual allowance for their standby work.

In December 2009, Matzak brought a claim against his employer for a failure to pay properly for his services as a volunteer firefighter, in particular, he claimed that his standby services should be categorised as working time.

The CJEU was asked to consider whether volunteers should be categorised as workers and rule on the correct definitions of the Working Time Directive to decide whether Matzak’s standby services could be classed as working time.

Under the directive, ‘working time’ refers to “any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice”. ‘Rest period’ refers to any period not classed as working time.

The CJEU established that Matzak was a worker. Although he held a voluntary position, this did not affect his definition as a worker according to case law.

The court assessed that whilst Matzak spent his standby time at home, he was obliged to respond to calls from his employer within eight minutes, and to be physically present in the place determined by his employer.

Under such circumstances, the CJEU said it was impossible for the worker to choose where they wanted to be at that time, meaning that the working hours were considered to be within the worker’s normal working duties.

There was an obligation to remain physically present at the place the employer determined, plus a need to reach his place of work within eight minutes. This limited any opportunity for personal interests.

This differs to a worker who must simply be contactable during standby duty. The issue here is the restrictions when on call (but not working).

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