Eight minute gap

The Court of Justice of the European Union (CJEU) has held in Ville de Nivelles v Rudy Matzak that the determining factor when deciding whether stand-by time is working time within the meaning of the Working Time Directive is the extent to which the worker is constrained from carrying out other activities during that time.

Basic facts

Mr Matzak, who became a volunteer firefighter for the town of Nivelles in 1981, received an allowance for being a volunteer, including one for “stand-by” duties which was the same as that for professional staff. During periods of stand-by, he was required to ensure he was no more than eight minutes by car from the station and within range of “various technical means” that might be used to call staff. He was required to leave immediately once he had received a call.

In 2009, Mr Matzak brought judicial proceedings against the town of Nivelles claiming that he was owed compensation for his stand-by services, which he argued should be categorised as working time.

Decision of Belgian labour courts

Although the local labour court upheld his action to a large extent, the higher labour court asked the CJEU (among other things) to decide whether stand-by duties fall within the definition of working time set out in the working time directive, where the on-call time is undertaken at home in circumstances which significantly restricted Mr Matzak’s freedom to undertake other activities.

Relevant law

Article 2(1) of Directive 2003/88 states that “working time” is “any period during which the worker is working, at the employer’s disposal and carrying out his [sic] activity or duties, in accordance with national laws and/or practice”.

Article 2(2) states that “rest period” means any period which is not working time.

Decision of CJEU

The Court first held that, even though Mr Matzak was a volunteer and not a professional firefighter, he was still a worker within the meaning of the directive as he appeared to be integrated into the town’s fire service, carrying out “real, genuine activities” for which he was paid. It was up to the referring court, however, to verify whether this was the case or not.

As the concepts of “working time” and “rest time” are mutually exclusive, it followed that stand-by time spent by a worker carrying out activities for their employer must be classified either as “working time” or “rest period”. The intensity of the work was irrelevant; what mattered was the extent to which the activities of the workers were constrained.

The determining factor for “working time” is that the worker is physically present at the place determined by the employer (in other words they cannot choose where to wait) and is available to provide the appropriate services immediately.  These conditions make it impossible for the worker to choose where they can be when on stand-by. As such all the stand-by time must be regarded as coming within the definition of “working time”.

The Court distinguished this situation from that where a worker performs stand-by duty according to a stand-by system which requires them to be permanently accessible without being required to be present at the place of work. In those circumstances, the court took the view that the worker could manage their time with fewer constraints and as such only time spent providing the services would count as working time.

Applying the test to Mr Matzak the Court considered that the obligation to remain physically present at a place determined by his employer and the geographical and temporal constraints which applied to him as a result of having to be at his place of work within eight minutes, restricted his options in terms of what other activities he could carry out. As such all his stand-by time must be regarded as working time.