- 01 Jun 2018
- Dorothée David
CJEU: Stand-by time at home = Working time when immediate intervention is required
The CJEU recently ruled on the notion of working time as defined by article 2 of Directive 2003/88/EC of 4 November 2003 on the organisation of working time (hereinafter “the Directive”) and its application by member states, including in particular in regard to stand-by time and on-call time (“temps d’astreinte”).
The case related to a Belgian national who had been a volunteer firefighter for the town of Nivelles for 30 years, at the same time as working as an employee for a private employer. In 2009, he applied to the court for payment of a provisional sum of one Euro by the town of Nivelles, as damages for non-payment of his stand-by hours at home as a volunteer firefighter. The Belgian courts then referred a number of questions to the CJEU for a preliminary ruling, including: should the stand-by time that a worker spends at home, with the duty to respond to calls from his employer within 8 minutes, very significantly restricting opportunities for other activities, be regarded as working time?
Yes, according to the CJEU, clarifying the following points:
- volunteer firefighters cannot be totally excluded from the application of the Directive, and must be regarded as “workers” when, as in this case, they carry out certain real, genuine activities under the direction of another person, for which they are remunerated, with the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary.
- the determining factor for the classification of “working time” within the meaning of the Directive is the fact that the worker must be physically present at the place determined by the employer and be available to the latter, in order to be able to provide the appropriate services immediately if needed. These obligations, which in particular prevent the worker from choosing where to be during stand-by times, must be regarded as carrying out his duties.
- There is a difference with the on-call system (“système d’astreinte”), whereby the worker must be contactable at all times by his employer, but does not have to be present at the place of work, and can spend time pursuing his own interests, with fewer restrictions. In this type of on-call system, only the time spent actually providing services is regarded as “working time”.
In this case, the worker did not just have to be contactable during his stand-by time. He was obliged, on the one hand, to be physically present at the place determined by the employer (namely, at home), and on the other, to answer the latter’s calls and be able to get to his place of work within 8 minutes. In these circumstances, the CJEU ruled that the Belgian volunteer firefighter’s stand-by time at home must be regarded as working time.
In Luxembourg, this judgement led to the submission of a question to parliament, asking whether the CJEU case law would have any repercussions on stand-by time for volunteer emergency workers. The Minister for the Interior made the following points, among others, in his response of 17 April 2018:
- The CJEU’s ruling is not directly enforceable by Luxembourg law, but does constitute a significant threat to the model of Luxembourg’s emergency services, which rely heavily on volunteer firefighters.
- Indeed, the standby times for volunteer firefighters, laid down by the provisions of the law of 27 March 2018 on the organisation of civil protection, could be significantly limited by the application of the Directive, in light of the ruling issued by the CJEU on 21 February 2018. Classifying a volunteer firefighter as a worker would mean that he would only be able to offer a few hours as a firefighter, alongside the hours spent working for a private or public employer, as the Directive limits the length of time actually worked per year.
- The potential effects of the CJEU’s ruling are currently being analysed in order, among other things, to see whether or not they affect other areas of society relying on voluntary work, with the goal of making sure that this ruling does not mean “an end to voluntary work, not only for Luxembourg but also for many other member states.”