Employment Contract

February 26th, 2018

Case C-518/15, Ville de Nivelles v Matzak, in which the ECJ gave Judgment on 21 February 2018, concerned the employment contract between the Town of Nivelles in Belgium and Mr Matzak, a volunteer firefighter for the Town.  The issue related to stand-by times and remuneration.  During periods of stand-by duty, every member of the volunteer fire service serving in the Nivelles fire station must remain at all times within a distance of the fire station such that the period necessary to reach it when traffic is running normally does not exceed a maximum of 8 minutes, and be particularly vigilant so as to remain within range of various technical means used to call staff and to leave immediately, by the most appropriate means, when staff on stand-by duty are called.

This involved the concepts of “working time” and “rest periods” in the Working Time Directive.

The ECJ observed that the Directive seeks to ensure, in its field of application, a minimum protection applicable to all workers of the EU. For that purpose, and in order to ensure that the Directive is fully effective, the definitions provided for in Article 2 thereof may not be interpreted differently according to the law of Member States, but have an autonomous meaning specific to EU law as regards the concept of “worker”; and that Member States are not entitled to alter the definition of “working time”, within the meaning of Article 2, albeit that Member States are free to adopt in their national legislation provisions providing for periods of “working time” and “rest periods” which are more favourable to “workers” than those laid down in the Directive.  They may not, however, maintain a less restrictive definition in the concept of “working time”.

The ECJ further observed that, although Member States are entitled to determine the remuneration of workers falling within the field of application of the Directive, according to the definition of “working time” and “rest period” in Article 2 of the Directive, they are not obliged to do so. They may lay down in their national law that the remuneration of a worker in “working time” differs from that of a worker in a “rest period”, and even to the point of not granting any remuneration during the latter type of period.

Member States are not required to determine the remuneration of periods of stand-by time according to the classification of those periods as “working time” or “rest period”.

This led to the crucial question, whether Article 2 must be interpreted as not meaning that stand-by time which a worker spends at home, but with the duty to respond to calls from the employer within 8 minutes, must be regarded as “working time”, having regard to the fact that the requirement “very significantly restricts” the opportunities to have other activities, and having regard to the position that the concepts of “working time” and “rest periods” are mutually exclusive, and the stand-by time spent by a worker in the course of his activities carried out for his employer must be classified either as “working time” or as “rest period”.

The ECJ continued:-

“56     … the intensity of the work by the employee and his output are not among the characteristic elements of the concept of ‘working time’, within the meaning of Article 2 …

57      It has also been held that the physical presence and availability of the worker at the place of work during the stand-by period with a view to providing his professional services must be regarded as carrying out his duties, even if the activity actually performed varies according to the circumstances …

58      If the stand-by period in the form of physical presence at the place of work were excluded from the concept of ‘working time’, that would seriously undermine the objective of Directive 2003/88, which is to ensure the safety and health of workers by granting them adequate rest periods and breaks …

59      Furthermore, it is apparent from the case-law of the Court that the determining factor for the classification of ‘working time’, within the meaning of Directive 2003/88, is the requirement that the worker be physically present at the place determined by the employer and to be available to the employer in order to be able to provide the appropriate services immediately in case of need. In fact, those obligations, which make it impossible for the workers concerned to choose the place where they stay during stand-by periods, must be regarded as coming within the ambit of the performance of their duties …

60      Finally, it must be observed that the situation is different where the worker performs a stand-by duty according to a stand-by system which requires that the worker be permanently accessible without being required to be present at the place of work. Even if he is at the disposal of his employer, since it must be possible to contact him, in that situation the worker may manage his time with fewer constraints and pursue his own interests. In those circumstances, only time linked to the actual provision of services must be regarded as ‘working time’, within the meaning of Directive 2003/88 …

61      … Mr Matzak was not only to be contactable during his stand-by time. He was, on the one hand, obliged to respond to calls from his employer within 8 minutes and, on the other hand, required to be physically present at the place determined by the employer. However, that place was Mr Matzak’s home and not … his place of work.

62      In that regard, it should be pointed out that, according to the Court’s case-law, the concepts of ‘working time’ and ‘rest period’, within the meaning of Directive 2003/88, constitute concepts of EU law which must be defined in accordance with objective characteristics, by reference to the scheme and purpose of that directive, which is intended to improve workers’ living and working conditions …

63      The obligation to remain physically present at the place determined by the employer and the geographical and temporal constraints resulting from the requirement to reach his place of work within 8 minutes are such as to objectively limit the opportunities which a worker in Mr Matzak’s circumstances has to devote himself to his personal and social interests.

64      In the light of those constraints, Mr Matzak’s situation differs from that of a worker who, during his stand-by duty, must simply be at his employer’s disposal inasmuch as it must be possible to contact him.

65      In those circumstances, it is necessary to interpret the concept of ‘working time’ provided for in Article 2 of Directive 2003/88 as applying to a situation in which a worker is obliged to spend stand-by time at his home, to be available there to his employer and to be able to reach his place of work within 8 minutes.

66      It follows from all the foregoing that the answer to the fourth question is that Article 2 of Directive 2003/88 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’.”

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