EELC Academic Board Review 2021 - Working time

Anthony Kerr (Senior Counsel at the Bar of Ireland and Associate Professor at the UCD Sutherland School of Law)

Working time issues continued to dominate the pages of EELC during 2021, with seven CJEU decisions, one from the EFTA Court and national court decisions in Belgium, Luxembourg and Romania being reported. Four of the CJEU decisions specifically concerned the status of on-call/standby time, as did the decisions from Belgium (EELC 2021/41) and Luxembourg (EELC 2021/20).

As is now well established, there is no intermediate category between ‘working time’ and ‘rest periods’ and the fact that on-call/standby time includes periods of inactivity is irrelevant. The intensity of the work done and the worker’s output are not among the characteristic elements of the concept of ‘working time’: see Case C-303/98, SIMAP, Case C-151/02, Jaeger and Case C-14/04, Dellas. Accordingly, on-call/standby duty performed by a worker where he or she was required to be physically present on the employer’s premises has to be regarded as ‘working time’ in its entirety, regardless of the work actually performed: see the decision from Luxembourg (EELC 2021/20). The situation is different, however, where the worker was on-call/on standby without having to be at the employer’s premises because, in that situation, the worker might manage his or her time with fewer constraints and pursue his or her own interests.

The precise divide between on-call/standby time at or outside a worker’s place of work was considered by the CJEU in Case C-518/15, Matzak. The claimant was a firefighter who was obliged, during their on-call/standby time, to be at home and to respond to callouts within eight minutes. The CJEU held that the obligation to remain physically present at a place determined by the employer coupled with the “geographical and temporal constraints” resulting from the requirement to reach their place of work within a specified time were such as to “objectively limit the opportunities which a worker […] has to devote himself to his personal and social interests”. Accordingly, such on-call/standby time was to be treated as ‘working time’: see the decision from Belgium (EELC 2021/41) that home-based on-call/standby time qualified as ‘working time’ in view of the significant restrictions upon enjoyment of the worker’s free time imposed during those periods.

What if the worker is not required to be at home but is free to engage in other employment or other activities during on-call/standby time so long as he or she could respond within a stipulated time? Here, the CJEU has adopted a more nuanced approach. The concept of ‘working time’ covers the entirety of periods of on-call/standby time during which the constraints imposed on the worker are such as to affect, “objectively and very significantly”, the possibility for the worker “freely to manage the time during which his or her professional services are not required and to pursue his or her own interests”. Conversely, where the constraints do not reach “such a level of intensity” and allow the worker to manage his or her own time, and to pursue his or her own interests “without major constraints”, only the time linked to the provision of work actually carried during that period constitutes ‘working time’: see Case C-344/19, Radiotelevizija Slovenija, Case C-580/19, Stadt Offenbach and Case C-214/20, Dublin City Council.

The CJEU went on to say, in the first two of these cases, that organisational difficulties that a period of on-call/standby time might generate for a worker, which are “the consequence of natural factors or of his or her own free choice”, could not be taken into account. Thus, a substantial difference between the residence freely chosen by the worker and the place that he or she must be able to reach within a certain period of time during that period was not, in itself, a relevant factor. Similarly, the limited nature of opportunities to pursue leisure activities in the area that the worker cannot, in practice, leave during a given period of on-call/standby time was also not a relevant factor.

What was relevant was the average frequency of the actual services that were normally carried out by the worker during periods of on-call/standby time. If a worker is, on average, called upon to act “on numerous occasions” during such a period, he or she has less scope freely to manage their time during those periods of inactivity, given that they are “frequently interrupted”. If, however, the worker is “only rarely” called upon to act during such periods, this could not lead to those periods being regarded as “rest periods” where the impact of the time limit imposed on the worker to return to his or her professional activities “is such that it suffices to constrain, objectively and very significantly, the ability that he or she has to freely manage, during those periods, the time during which his or her services are not required”. In Case C-107/19, Dopravní podnik, the CJEU added that the unforeseeable nature of possible interruptions was likely to have an additional restrictive effect on a worker’s ability to manage his or her own time freely, because the uncertainty was liable to put that worker on “permanent alert”. These, however, were all matters for the referring courts to determine.

Case C-742/19, Republika Slovenija is of importance for those Member States, such as Ireland, where the armed forces are excluded from the scope of the working time legislation. Here, a non-commissioned officer in the Slovenian army claimed an entitlement to a standby allowance during periods when they were on guard duty. This duty included both periods during which they were required to carry out actual surveillance activity and periods during which they were required only to remain available in the barracks.

France and Spain both intervened in the proceedings and submitted that Directive 2003/88/EC did not govern the organisation of working time of military personnel. This submission was premised on the ground that working time fell within the organisational arrangements of the armed forces of the Member States which, by their very nature, were excluded from the scope of the Directive, in accordance with Article 4(2) TEU. Under this treaty provision, the EU is required to respect not just the equality of Member States but also their essential State functions.

The CJEU accepted that the principal tasks of the armed forces of the Member States, namely preserving territorial integrity and safeguarding national security, were expressly included among the essential functions of the State which the EU must respect in accordance with Article 4(2) TEU. The CJEU, however, did not accept that the respect which the EU must have for the essential functions of the State resulted in the organisation of the working time of military personnel escaping entirely the application of EU law.

In answering the questions referred, the CJEU again adopted a nuanced approach. Although Article 4(2) TEU did not have the effect of excluding the organisation of the working time of military personnel from the scope of Directive 2003/88, that provision did require that the application to military personnel of the rules of EU law relating to the organisation of working time was not to be such as to hinder the proper performance of the essential functions of a Member State. Those working time rules could not be interpreted “in such a way as to prevent the armed forces from fulfilling their tasks and, consequently, so as to affect the essential functions of the State, namely the preservation of its territorial integrity and the safeguarding of national security”.

The CJEU did provide some guidance as to which activities must be excluded from the scope of the Directive. These activities included those carried out by military personnel who, “either because they are highly qualified or due to the extremely sensitive nature of the tasks assigned to them, are extremely difficult to replace with members of the armed forces by means of a rotation system which would make it possible to ensure both compliance with the maximum working periods and the rest periods provided for by [the Directive], and the proper performance of the essential tasks assigned to them”.

Furthermore, the CJEU confirmed that all military personnel “called upon to assist in operations involving a military commitment by the armed forces of a Member State, whether they are deployed, permanently or on a temporary basis, within its borders or outside of those borders”, carry out an activity which must be excluded in its entirety from the scope of the Directive. Compliance with the working time requirements in the course of such operations “would put at considerable risk the success of those operations, that success being predicated on the total commitment, over long periods, of the members of the armed forces involved, and would consequently also put at considerable risk the proper performance of the essential functions of safeguarding national security and preserving the territorial integrity of the Member States”. The fact that “actual military operations” took place in peacetime did not undermine the conclusion that those activities must be “entirely excluded” from the scope of the Directive. In addition, all activities which form either part of the initial training of military personnel or part of the operational training which they are subsequently required to perform regularly were also excluded.

In the event, the CJEU ruled that it was for the Slovenian courts to determine whether the security activity performed by the claimant was covered by one of the above situations, in particular whether the activity constituted an “actual military operation” or was an activity which was so particular that it was not suitable for a staff rotation system or a system for planning working time. If it was not, then that activity would have to be deemed to fall within the scope of the Directive. Even if it did, the CJEU observed that Article 17(3) permitted derogations, such as in the case of security and/or surveillance activities, requiring a permanent presence in order to protect property and/or persons, and activities involving the need for continuity of service.

As the CJEU has consistently observed, and the case from Belgium demonstrates, just because on-call/standby time is ‘working time’ it does not follow, at least from the Directive, that the worker is entitled to be paid for the entirety of that time.

Finally, the issue of ‘travelling time’ should be briefly considered. Ordinarily, travel to and from a worker’s home and their place of work does not qualify as ‘working time’. The position of workers who do not have a fixed place of work was addressed by the CJEU in Case C-266/14, Tyco and, in Case E-19/16, Thue, the EFTA Court ruled that the reasoning in Tyco was not limited to cases where the worker did not have a fixed place of work. This was followed by the EFTA Court in Case E-11/20, Sverrisson where it was held that the necessary time spent travelling, outside of normal working hours, by workers to a location other than their fixed or habitual place of work in order to carry out their duties in that location constituted ‘working time’.