Standby duties: the ECJ’s synthesis of Slovenian judgments and a question of compensation
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Medieval sun dial clock at church wall in Ljubljana, Slovenia
Willy van Eeckhoutte
Willy van Eeckhoutte is a professor in the University of Ghent, member of the bar at the Supreme Court of Belgium, and an employment law specialist at Bellaw, part of the Innangard international employment law alliance

“Every judge in the EU is actually an EU judge, because every judge applies European rules.” It is one of the boutades of Koen Lenaerts, the president of the Court of Justice of the European Union (ECJ). “The judicial application of European law is characterised by a continuous dialogue between the Court of Justice and the national judge”, is another statement he often makes. Two recent judgments highlighted in this article are a good illustration of this.

Standby time can be working time

The opinion of the ECJ on when standby duty performed by an employee must be regarded as working time is, by now, sufficiently known.

Regarding standby duty with a mandatory presence at the workplace, the prevailing doctrine can be found in the ECJ judgments of Simap, Jaeger, Pfeiffer, and Dellas. In relation to standby duty without compulsory presence at a specific place, the court built up its doctrine in the Matzak, Stadt Offenbach am Main, and Radiotelevizija Slovenija judgments.

The Grand Chamber of the Court of Justice summarises all this in a remarkably compact way in BK/Republika Slovenija. The court ruled on the question of whether and to what extent security activities performed by a member of military personnel are excluded from the scope of the Working Time Directive (this specific aspect will not be discussed in this article). The court refers to the Radiotelevizija Slovenija judgment, also given by the Grand Chamber in a Slovenian case. Both judgments could therefore be called the Slovenian synthesis judgments.

The synthesis brought about by the judgment of 15 July 2021 is formulated as follows.

Principle applicable to all standby duty

All standby periods during which the constraints imposed on the worker are such as to affect, objectively, and very significantly, the possibility for the latter freely to manage the time during which their professional services are not required and to pursue their own interests.

Conversely, where the constraints imposed on a worker during a specific standby period do not reach such a level of intensity and allow them to manage their own time, and to pursue their own interests without major constraints, only the time linked to the provision of work actually carried out during that period constitutes “working time” for the purposes of applying the directive.

Implementation for standby duty outside the workers’ residence

As regards standby periods undertaken at places of work which are separate from the workers’ residence, a specific interpretation of the principle applies.

It should be specified at the outset that the workplace should be understood as any place where the worker is required to exercise an activity on the employer’s instruction, including where that place is not the place where they usually carry out their professional duties.

In that case, the decisive factor for finding the elements that characterise the concept of “working time” for the purposes of the directive are present is the fact that the worker is required to be physically present at the place determined by the employer and to remain available to the employer in order to be able, if necessary, to provide their services immediately,

Since, during such a standby period, the worker must remain apart from their family and social environment and has little freedom to manage the time during which their professional services are not required, the whole of that period must be classified as “working time”, within the meaning of that directive, irrespective of the professional activity actually carried out by the worker during that period.

Court of Cassation of Belgium

In a judgment of 21 June 2021, the Belgian Court of Cassation had to rule on the working time regulations for the firefighters of the town of Beaumont, more specifically on the question of whether the time spent on call by a volunteer firefighter travelling to the fire station should be regarded as working time. It is true that the firefighters concerned were not required to stay at the fire station or at any other specific place during the standby period, but they were required to remain within the territory of the town or within a seven-kilometre radius of the station, or to be able to present themselves at the latter within ten minutes, on pain of being excluded from the service.

On the basis of those restrictions, the Mons Labour Court of Appeal, in its judgment appealed to the Court of Cassation, ruled that the waiting time and the time taken to go to the fire station must be regarded as working time. It pointed out that while standing by the firefighters could not consume alcoholic beverages (in case of a call they had to use their car) or look after their children on their own due to the obligations imposed on them.

The Court of Cassation declared that decision to be in conformity with the directive and lawful. It does not refer to the judgment of the Court of Justice of 15 July 2021, which had not yet been rendered, but to the Matzak and Offenbach am Main judgments, from which it quotes extensively.

Non-implementation of the Working Time Directive

The ECJ has repeatedly pointed out that the Working Time Directive, save in the special case of paid annual leave, does not apply to the remuneration of employees. Referring once again to the Radiotelevizija Slovenija judgment of 9 March 2021, the ECJ reiterates this in the second “Slovenian” judgment, of 15 July 2021.

The way in which workers are remunerated for periods of standby time is not covered by the directive but by the relevant provisions of national law. Consequently, that directive does not preclude the application of a law of a member state, a collective labour agreement, or an employer’s decision that, for the purposes of the remuneration of guard duty, makes a distinction between the treatment of periods in the course of work actually done and those during which no actual work is done, even if those periods must be regarded, in their entirety, as “working time”.

National law

Naturally, the ECJ does not rule on what Slovenian national law says about the military's right to remuneration for the guard duties they perform.

However, it is noteworthy that in the 15 July judgment, as in previous judgments, the court considers that the Working Time Directive does not preclude guard duty, which must be regarded as working time, from not being differently remunerated. In all of those judgments, it states that the directive does not prevent standby duty not involving actual work from being “remunerated in a different manner” than actual work performed during standby duty. Thus, the court seems to consider that it is obvious that time spent on standby without actual work should be remunerated in some way. But it does not indicate any legal basis for this supposed point of view.

Court of Cassation of Belgium

In the case in which the Belgian Court of Cassation ruled on 21 June 2021, there was such a legal basis. The regulation concerning the organisation of the municipal fire brigade provides for different, lesser compensation for standby duties than for effective interventions.

The Mons Labour Court of Appeal, on the grounds that standby duty is working time, had ruled that volunteer firefighters were entitled to full pay for it. Wrong, says the Court of Cassation, referring again to the Matzak judgment. It annuls the judgment of the Mons Labour Court of Appeal on this point.

Unanswered question

The question remains whether, in the absence of a statutory provision, a collective labour agreement, an individual agreement, or a unilateral employer’s promise that provides for any remuneration for waiting periods during which no actual work is done, any remuneration is owed. In that case, the only legal basis that seems to qualify for this is equity.

But if it seems fair to compensate for waiting time in some way, should we leave it to the courts to decide what that compensation should consist of and how much it should be?

A more consistent conclusion would be that in the absence of any source of law providing for it no compensation is due. But to avoid court interfering in this matter, it is undoubtedly appropriate to stipulate in one or another instrument that some compensation will be awarded, albeit not necessarily a sum of money.