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Work or Rest - The Definition of “Work” under the Working Time Directives

By Eoin Delap BL


Introduction

The Working Time Directives (WTDs) are among the most significant pieces of European Union social and economic legislation. They have had a profound effect on employment law in Ireland by both giving workers substantive rights and placing weighty obligations on employers. The definition of “work,” as interpreted by the Court of Justice of the European Union (CJEU), has been central to their impact. Most recently, two CJEU judgments arising from references from the Slovenian courts have both reaffirmed the CJEU’s broad definition of work and clarified the line between work and rest.


Since the foundational Simap judgment, the CJEU has explored the WTDs’ underlying principles and, in line with those principles, expanded the definition of “work”.[1] The dichotomy in the definitions of “work” and “rest” under art.2 of Directive 2003/88/EC, whereby all of an employee’s time must be either work or rest (and that any intermediary designation such as “standby” and “on call” must be excluded) has been central to the Court’s approach.


Prior to assessing recent developments, it is necessary to introduce four key cases by way of context.


Basic Principles

Two of the earliest cases on this matter, Simap and Jaeger, concerned the status of on-call doctors.[2] In both cases, the employer only counted active periods in full during on-call shifts. In Simap, the CJEU rejected the possibility of an intermediary classification between work and rest, while Jaeger confirmed this applies even where a worker is sleeping. Crucially, Simap distinguished between doctors present in health centres, who were deemed working, and those at home, who were deemed to be resting.[3] Arguably, this physical presence requirement introduced an unjustifiable distinction between workers, a matter revisited later by the Court.


Physical Presence

Two later CJEU judgments, Tyco and Matzak, reappraised the requirement to be present in the workplace.[4] Tyco concerned technicians in a security firm in Spain who were previously based in regional centres. Following the centres’ closure, the workers travelled directly from their homes to clients; a dispute arose regarding the classification of this travel time. The CJEU first rejected the requirement for a worker to be active. Second, it noted that, where the place of employment varied, an employee could not control their travel time. Accordingly, it found travel to and from clients, including between clients during the day, constituted working time under the WTDs.


In Matzak, the CJEU further departed from the physical presence requirement. This case concerned a volunteer firefighter who challenged the designation of his on-call shifts, during which he was required to be within eight minutes of the fire station and contactable. The CJEU gave significant weight to Mr. Matzak’s constraint by his employer and the loss of liberty he suffered.[5] Given he could not manage his time freely, the Court found Mr. Matzak’s periods on call were work.


Recent Developments

A number of judgments delivered in 2021 have clarified the level of constraint required for on-call time to be considered work where a worker is not necessarily in the workplace.

Radiotelevizija Slovenija concerned a technician stationed in a remote transmission centre where he performed 12-hour shifts followed by six hours standby and six hours rest.[6] Due to the centre’s mountainous location, and the requirement that he remain within one hour of his workplace, it was impractical for him to leave the centre. The Court concluded that, while recognising his liberty was restricted, the level of constraint was not sufficient during on-call periods to constitute work under the WTDs.


In the second case, Ministrstvo za obrambo, the CJEU considered the case of an officer in the Slovenian army who was obliged to perform seven days on standby each month during which he was required to remain in his barracks.[7] In finding these periods constituted work under the WTDs, the Court deemed that the level of constraint must affect “… objectively and very significantly, the possibility for the latter freely to manage the time…”[8]

The CJEU recently considered this test in a preliminary reference from the Labour Court in Dublin City Council, which concerned the designation of a firefighter’s standby periods in circumstances where he worked during those times as a taxi driver.[9] The Court, in setting out the relevant factors, stated that the fact a worker could pursue another occupation may indicate an employer did not exercise sufficient constraint over the employee during those periods for the time to be defined as work.

Conclusion

To remain relevant to the present and future generations, the WTDs must evolve to reflect the dynamics of contemporary employment. The COVID-19 pandemic fundamentally changed the nature of work for many and greatly accelerated the move to remote work. It is therefore welcome and timely that the recent cases above have both conclusively removed the physical presence requirement in defining work and the CJEU has established a new standard that focuses on the level of constraint on a worker.


The views expressed in this blog are personal to the author alone and do not constitute the views of the EUBA and/or its Executive Committee. The information in the blog is not and is not intended to constitute legal advice. Readers should always seek independent legal advice with regard to any particular legal matter arising from or connected with this blog. The EUBA and its Executive Committee have agreed to the publication of this blog for general informational purposes only but make no representations as to its content. The blog and its contents cannot be republished in any format without the express written consent of the author


[1] SIMAP, C-303/98, ECLI:EU:C:2000:528 [2] Jaeger, C-151/02, ECLI:EU:C:2003:437 [3] SIMAP, at para. 50 [4] Tyco C-266/14, ECLI:EU:C:2015:578 and Matzak C-518/15, ECLI:EU:C:2018:82 [5] Matzak, at para. 63 [6] D.J. v Radiotelevizija Slovenija Case C-742/19, ECLI:EU:C:2021:597 [7] B.K. v Republika Slovenija (Ministrstvo za obrambo), Case C-742/19, ECLI:EU:C:2021:597 [8] B.K. at para 28 [9] MG v. Dublin City Council C-214/20, ECLI:EU:C:2021:909. See also R.J. v. Stadt Offenbach am Main, C-580/19, ECLI:EU:C:2021:183.