When is on-call duty considered working time? This question is important because of the legal limits on working hours, which must not be exceeded, but also for wages. Two proceedings are pending at the European Court of Justice (ECJ) – one concerns a fire fighter from Germany. Here you can read how the responsible Advocate General at the ECJ sees the proceedings.
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The Advocate General Pitruzzella is responsible for both cases pending before the ECJ. His motions prepare the decisions of the ECJ. With regard to the on-call duty of the fire fighter from Germany, he gives weighty reasons for considering it as working time.
Procedure 1: Firefighter in Offenbach
One of the proceedings involves a fire fighter in the city of Offenbach am Main. He must be on call on a regular basis. This means that he must be available at all times, carry his operational clothing with him and have an emergency vehicle provided by the employer ready. He has to answer calls that inform him of events and about which he has to make decisions. He does not have to be in a precisely defined place, but he must choose his whereabouts in such a way that in the event of an emergency he can reach the Offenbach city limits in operational clothing and with the emergency vehicle within 20 minutes. The firefighter applied for on-call duty to be recognized as working time and the corresponding remuneration. The city refused. On the other hand, he moved to the Darmstadt Administrative Court. The Darmstadt Administrative Court referred the matter to the ECJ for a preliminary ruling.
Procedure 2: Broadcast technician in Slovenia
The other case concerns a broadcast technician in Slovenia. The transmitter in which he was employed is in the high mountains and is far from residential areas. It is connected to the valley by a cable car that only operates at certain times. He too had to do on-call duty. In his case, that meant that he had to be at work within an hour if necessary. Like the fireman, he was not required to be on call; Due to the remoteness of the transmitter, however, he could not reach his usual place of residence during on-call times, but practically lived in the transmitter, where the kitchen, lounge, relaxation room and bathroom are available. The broadcast technician brought an action for payment for the hours of on-call duty at the same rate as for overtime. He lost in the first and second instance. The third instance, the Supreme Court of Slovenia, referred the matter to the ECJ for a preliminary ruling.
The questions referred to the European Court of Justice
The Administrative court Darmstadt Asks whether on-call duty according to the European Working Time Directive and the Charter of Fundamental Rights of the European Union is to be regarded as working time if, as in the original case, no specific location is specified for on-call duty, but the employee is due to the tight time frame up to a possible assignment in his choice of location and the possibilities to devote himself to his interests is considerably restricted. He also asks whether it plays a role in the assessment as to whether regular use can be expected during on-call duty.
Of the Supreme Court of Slovenia asks whether on-call duty is to be regarded as working time under the circumstances of the original case, in particular the geographical remoteness of the workplace, where the employee is also severely restricted in the organization of his leisure time.
Remarks by the Advocate General
Firefighter: On-call duty could be working time
In the case of the firefighter, the speed with which he has to be in uniform on the outskirts of Offenbach if necessary speaks in favor of that on-call duty is working time. That the abode is not specified, speaks against it only at first glance, because it is obvious that a very short reaction time requires the employee to be in a certain geographical area, which is essentially determined by the employer, while on call.
The crucial role he comes Intensity of restrictions by submitting to the instructions of the employer. However, since in the present case the free choice of the location where the employee spends on-call time is not (almost) completely prevented, additional criteria can be used.
The Advocate General mentioned several criteriahe for not suitableBecause it is too subjective, holds: Distance to be overcome from the place of work, degree of responsibility and specific tasks of the employee, psychological pressure.
However, suitable criteria are:
- Scope of action of the employee
- (If necessary, this can be replaced by another employee who is already on site or closer;
- how high are the sanctions if you are not on site within the given time,
- Need to wear operational clothing)
- or the timing, frequency and duration of on-call duty as determined by the employer,
- but also the frequency of operations during on-call duty.
The findings of fact are a matter for the referring national court, but if they reveal the existence of some of the circumstantial evidence which, together with the short response time, leads to the actual rest time of the employee not guaranteed then, according to the Advocate General, “the on-call duty times could be classified as working hours”.
Broadcast technician: On-call duty is a little restrictive for employees
But it is different in the case of the broadcast technician. Here the Advocate General believes that On-call duty should not be regarded as working time. As in the case of the firefighter, the employer does not determine the whereabouts while on call. The time it takes to start work is one hour so that an immediate reaction is not required in the event of an incident. According to the Advocate General, the geographical peculiarity of the place of work cannot change the classification of times.
After all, there are some situations in which the employee is far from residential areas, e.g. B. on oil rigs or at work at sea. The distance between residence and place of work could not play a role. In addition, modern technologies made it possible much more than in the past to remain connected to family members and inclinations from afar.
The Advocate General rejects criteria such as the “quality of the time spent” or the degree of responsibility and psychological pressure as too subjective. On the other hand, it could play a role whether and to what extent the employee must expect to be called to action while on call. It is for the national court to examine the factual circumstances.
What’s next
The advocate general’s motions are not yet a judgment. It is impossible to predict with certainty how the judgments will ultimately turn out. It will depend on how convincing the Court of Justice is of the opinion that, for the assessment of the working time character of on-call times, it depends on whether and to what extent the employer has decided on the present circumstances of on-call duty within the scope of his right to issue instructions (for example, when determining how you have to be on site quickly, if necessary, that you then have to be in operational clothing, etc., but not, for example, with the distance between home and work or the poor quality of leisure time).
The example of the oil platform in particular takes the Advocate General’s argument a bit into the absurd: even if the contract expressly states that the contract can freely choose where to stay – if the employee does not want to swim, it is not really given. The employer does not need any right of instruction.
Conversely, the times and conditions up to engagement in the case of an emergency could not be determined by exercising the right to issue instructions, but by the employment contract, collective bargaining agreements or even by law. The latter is even given in the event of a fire service. In the annex to the “Ordinance on the Organization, Minimum Strength and Equipment of Public Fire Brigades” of December 17, 2013, it says: “Level 2 equipment, including the personnel required for this, is generally to be used within 20 minutes of the alarm being raised on site … «So we can look forward to the rulings of the ECJ. How quickly the ECJ will decide is also an interesting question.
According to the motions of the Advocate General Pitruzzella dated February 13, 2020 in the case C-107/19, XR v Dopravní podnik hl. m. Prahy as, which also dealt with working time law, has not passed a judgment to date, October 9, 2020, although this is much faster in other cases.
Torsten Walter, LL.M. (Leicester), DGB Federal Board
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