‘Standby Time’ may be ‘Working Time’ in certain cases

On 9 March 2021, the Court of Justice of the European Union (the “CJEU”) delivered two preliminary rulings in RJ v Stadt Offenbach am Main (C-580/19) and DJ v Radiotelevizija Solvenija (C344/19) on the interpretation of Article 2 of Directive 2003/88 concerning certain aspects of the organisation of working time (the “Working Time Directive”). The CJEU ruled that if the employer imposes significant restrictions on the use of the employee’s free time when on-call, significantly preventing the employee from planning his/her free time, then the ‘standby time’ can be considered to be ‘working time’ in its entirety.

It should be noted at the outset that Article 2 of the Working Time Directive defines ‘working time’ as “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” and ‘rest period’ as “any period which is not working time.”

The Firefighter Case:

The first case ( RJ v Stadt Offenbach am Main) involved a firefighter with the Offenbach am Main fire service in Germany. In addition to his regular service hours, the firefighter had to carry out what is known as ‘BvE’ service. During this ‘BvE’ service, the firefighter had to be reachable at any time and he had to have his service uniform with him, as well as a service vehicle. The firefighter had to choose his whereabouts in such a way that, if he is alerted, he can reach the town boundary with his uniform and vehicle, using his traffic regulations privileges, within 20 minutes.

Remote working with a television broadcasting station in the Slovenian mountains:

The second case ( DJ v Radiotelevizija Solvenija) was about a specialist technician from Slovenia. It was his job to ensure the operation of two television broadcasting centres in the Slovenian mountains for several days. Six hours of on-call duty were added to his daily working hours. During this time, he had to be able to reach the broadcasting station within an hour, if necessary. The nature of his work, the distance between the centres and his home made it necessary for him to spend his standby time in his employer’s accommodation in the mountains. However, there were not many opportunities for leisure activities in the area.

The CJEU: ‘Working Time’ or ‘Resting Time’?

The German and the Slovenian Courts both decided to request a preliminary ruling from the CJEU on whether the firefighter and the technician’s on-call time should be regarded as ‘working time’ under the Working Time Directive. In both rulings, the CJEU explained that even though it is ultimately for national courts to examine whether the ‘standby time’ must be classified as ‘working time’ under the Working Time Directive, it is for the CJEU to provide national courts with guidance on the criteria to be taken into account when making their assessment. Member States cannot unilaterally determine the scope of the concepts of ‘working time’ and ‘rest period’ as this would frustrate the effectiveness of the Working Time Directive.

The purpose of the Working Time Directive is that of laying down minimum requirements to improve the living and working conditions of workers through approximation of national rules. The Working Time Directive gives specific form to the fundamental right enshrined in Article 31(2) of the Charter of the Fundamental Rights of the European Union and must therefore be interpreted in light of that Article 31(2) and should not be interpreted restrictively to the detriment of the rights that workers derive from it.

The CJEU held that:

• the two concepts of ‘working time’ and ‘resting time’ are mutually exclusive such that if time cannot be classified as one, then it is automatically the other.

• it is apparent from CJEU case law that a period during which no actual work activity is carried out by the worker does not automatically constitute a ‘rest period’.

• a ‘workplace’ must be understood as any place where the worker is required to act on the employer’s instruction, including where that place is not the place where s/he usually carries out his/her professional duties.

• standby time must also be classified in its entirety as ‘working time’ where the worker even though he is not required to remain at his/her workplace is constrained in pursuing his/her personal and social interests during such standby period.

Significant restrictions on the use of the employee’s free time

The key question here is: when is a worker considered to be constrained in pursuing his/her personal and social interests because of an on-call duty? The CJEU clarified that the constraints must be of a sufficient level of intensity preventing the worker from managing his/her own time and to pursue his/her own interests with major constraints. However, only the constraints that are imposed on the worker, through national laws, by a collective agreement or by the employer may be considered. If there are no such significant restrictions that are imposed on the employee, only the time spent on work performed is to be considered as working time during the on-call time.

The CJEU held that it is necessary to have regard to the time period available to the worker to return to his/her professional activities, starting from the moment at which the employer requests it, coupled, where appropriate, with the average frequency of the activities that the worker is actually called upon to undertake. If the worker is required to return to work within a few minutes, when needed, the CJEU held that, in principle, such a standby period has to be regarded in its entirety as ‘working time’ under the Working Time Directive as the worker is in practice strongly dissuaded from planning any kind of recreational activity, even of a short duration. The impact of such a short time limit within which the worker must react must be assessed considering other constraints imposed on the worker.

CJEU’s rulings

In the firefighter case, the CJEU held that the standby time constitutes, in its entirety, ‘working time’ under the Working Time Directive solely if it follows from an overall assessment of all the circumstances of the case. This assessment should take note of, inter alia, the consequences of such a response time, the average frequency of interventions during that period, the kind of constraints imposed on that worker during that period, and whether they constrain objectively and very significantly the ability that s/he has to freely manage his/her own time and to devote such time to his/her own interests.

As for the Slovenian technician case, the CJEU ruled that given that the worker was able to return to his/her workplace (if necessary) within one hour, and was not forced by his employer to remain in the service accommodation, the standby time does not constitute, in its entirety, ‘working time’ unless an overall assessment in the form as mentioned above, establishes that significant constraints were imposed on the worker’s use of his free time. The limited opportunities to pursue leisure activities within the immediate vicinity of the place was said to be irrelevant for the purposes of that assessment.

It remains to be seen how the Maltese Courts and Tribunals will carry out the overall circumstantial assessment and how much weight will the Maltese Courts place on which factors set out by the CJEU, particularly the length of the time limit within which the employee must return to his workplace. These CJEU cases will assist legal advisors and the Maltese Courts and Tribunals in applying the Organisation of Working Time Regulations, 2004 (S.L. 452.87).