Showcasing respect for workers’ rights has become a popular advertising strategy. Amazon, for instance, gloated over the heroism of its employees, glossing over the fact that the company’s revenue has skyrocketed during the pandemic. Strikingly, the Court of Justice’s (CJEU) recent judgments in Radiotelevizija Slovenija and Stadt Offenbach am Main mark a similar approach: on the one hand, the Court enunciated the significance of workers’ rights in Union law in the context of the qualification of stand-by duties as ‘working time’ for the purpose of the Working Time Directive. On the other hand, a close examination of these judgments reveals that the Court’s reasoning weakens the position of workers in practice. Whereas the final decision on these matters is delegated to national courts, the CJEU’s guidance in this regard is likely to play out to the detriment of workers.
Accordingly, this blog post discusses the repercussions that these recent judgments create for workers. Has the Court turned away from its firm support of workers’ rights in earlier case law to mere lip service? To answer this question, the post proceeds in four steps. It briefly presents the factual background of the litigations (1.), then illustrates the deferential solution adopted by the Court (2.) and analyses the guidance given to national courts in this respect (3.). Against that background, it will be concluded that the Court has adopted guidance that restricts workers’ rights, even though this may be concealed by decorative language (4.). Since the Court’s responses in both cases are drafted, for the most part, in identical terms, they will be rolled into one for the purpose of the following analysis. In this respect, references will be made to the first of the two judgments, namely to C-344/19 Radiotelevizija Slovenija, unless indicated otherwise.
- Facts of the cases
The first case concerned a technician deployed at a transmission centre, remotely situated at a mountain top in Slovenia. Since this job rendered it impossible for him to commute to his workplace on a daily basis, his employer provided him with accommodation at the place of the transmission centre. Besides two six-hour shifts a day, he had to carry out an additional six-hour stand-by duty, during which he was required to remain contactable and, if need be, to return to the centre within one hour. Since stand-by periods were remunerated under the applicable collective agreement by a compensation corresponding to a mere 20% of his basic salary, he sued to receive full remuneration for stand-by periods. After all, the inaccessible location of this job rendered it practically impossible for him to leave the transmission centre to pursue leisure activities.
The second case concerned the stand-by service of a professional firefighter in Germany. That service included the obligation to carry equipment with him, respond to calls and, where needed, join his colleagues at the site of an incident. In such a situation, he was expected to reach the place where the incident took place within 20 minutes. Against that background, the firefighter argued that periods of stand-by time should be remunerated at the same rate as working time, since this arrangement effectively restricted his free time.
It is hard to imagine that a technician based on a Slovenian mountain top and a firefighter in the lovely city of Offenbach have much in common. In legal terms, however, both litigations raise very similar questions. Should stand-by time be qualified as periods of ‘working time’ or ‘rest time’ under the Directive in situations where the worker was not compelled to stay at the place of work? Does this characterisation have ramifications for the workers’ salaries? And what effects may stand-by duties have on the well-being of workers?
- A two-pronged test performed by national courts
By leaving adjudication to national courts, the CJEU ultimately dodged responding to these questions. Nevertheless, this strategy of deference is supplemented with extensive guidance to be followed by national judges (para. 23). Accordingly, the Court clarified that, where stand-by duties permit workers to leave their workplace, the question whether these periods may constitute ‘working time’ depends on the constraints imposed on the worker’s opportunities to pursue personal interests. Whenever the worker’s ability to manage freely his or her free time is ‘objectively and very significantly’ constrained, stand-by duties must be considered as working time (para. 37). According to the Court, this is a question of degree. Where the constraints imposed on workers are particularly strict, stand-by periods qualify as working time, whereas less severe constraints allow for the qualification of stand-by times as ‘rest periods’ for the purpose of the Directive (para. 38).
This calls for an assessment of the specific constraints that stand-by duties impose on the worker and the ability to manage freely her or his free time (para. 45). For the purpose of that assessment, the Court spelled out a test that is to be applied by the competent national courts. Two factors are relevant in this respect; first, the time afforded to the worker for returning to the workplace and, second, the frequency of actual activities carried out during stand-by periods. Concerning the first factor, the Court explained that a stand-by duty requiring the worker to resume work within minutes will, in principle, constitute working time (para. 48). In addition, the second factor relates to the frequency of actual activities performed during stand-by periods. If stand-by periods only very rarely involve carrying out actual services, this will, as a rule, constitute rest time (paras. 51 et seq.). To determine whether a stand-by period qualifies as working time, however, both factors must be considered jointly where the worker is allowed to leave the workplace.
- Protecting workers’ rights? The Court’s guidance to national courts
Throughout the judgements, the Court stressed the particular importance of workers’ protection and rights. It reiterated that the Working Time Directive is aimed at a better protection of workers’ health and safety, which cannot be forfeited because of purely economic considerations (paras. 25 et seq.). Moreover, the Court emphasised that the Directive fleshes out a fundamental right, namely the one enshrined in Article 31(2) of the Charter, which precludes an interpretation of the Directive restricting the rights that workers derive from it (para. 27) and referred to its earlier case law to show for it. Where workers are required to remain at the workplace during stand-by times or where the times to resume work are very brief, they must be considered ‘working time’ for the purpose of the Directive (paras. 35 et seq.).
These considerations, however, pale in comparison to the actual guidance that the Court provided in the present cases. Where workers are not required to stay at their workplace during stand-by shifts, these periods constitute working time if the constraints imposed on the worker ‘objectively and very significantly’ impair the worker’s ability to pursue her or his own interests. Unlike its judgment in Matzak, where the Court had strengthened the position of a worker who had to resume work within 8 minutes time, in the present cases, the Court gave this test a more restrictive spin.
First, it highlighted that constraints imposed on the worker must reach a certain threshold of intensity (para. 38). A ‘very significant’ impairment therefore cannot arise from minor constraints, such as being contactable by the employer (para. 55). Second, constraints that ‘objectively’ dissuade a worker from enjoying her or his free time can only include those established by law or by collective agreement or employment contract (para. 39). For the Court, this logically factored out constraints that result from natural factors or from the worker’s free choices (para. 40). These points of guidance sound rather technical. Nonetheless, they are of high practical importance, as the Court’s guidance in the cases of the Slovenian technician and the German firefighter illustrate.
In the context of the technician working at a Slovenian mountain top, the Court dismissed the specificities of that workplace as irrelevant factors. Neither the distance nor the difficulty to leave this workplace can be considered ‘objective’ constraints. Rather, the Court clarified that the worker ‘freely chose’ to reside in a place that is located at a substantial distance to the mountain top transmission centre (paras. 41 et seq.). Against that background, the Court concluded that no other ‘objective’ constraints were imposed on the worker than the requirement to return to his workplace within a time limit of one hour if need be. Since the frequency of activities requiring him to return to his workplace was low and thus, not ‘very significant’, the Court implicitly suggested that stand-by periods in this specific situation should not be considered as working time. Bad luck.
The Court’s guidance led to a similar conclusion in the case of the German firefighter. The Court noted that, even though he was required to reach the city of Offenbach within 20 minutes, this allowed him, in principle, to travel freely during stand-by duties (Stadt Offenbach am Main, para. 54). In the view of the Court, this finding was corroborated by the fact that he was provided a service vehicle and benefitted from traffic regulation privileges, allowing him to access Offenbach rather rapidly. In addition, the Court posited the view that the frequency of actual duties was not considered to be high and that the worker’s choice to live at a substantial distance from Offenbach is irrelevant for the national court’s assessment.
However, the Court ended on positive terms regarding the interests of workers. Whereas it quickly dismissed questions of remuneration as these are not governed by the Directive, it highlighted that employers are under an obligation to protect the safety and health of their workers, pursuant to the OSH Framework Directive. Accordingly, national law must ensure that employers may not impose stand-by duties with such a duration or frequency that will endanger the mental well-being of an employee (paras. 62 et seq.). Admittedly, this may yield some positive effects for workers. Nonetheless, against the background of the Court’s strict guidance a few paragraphs earlier, it is difficult to shake off the impression that the judges engaged in window dressing rather than investing in a strong safeguard for workers’ rights.
Two aspects are noteworthy with a view to the Court’s recent judgments on the Working Time Directive. First, the judges in Luxembourg ultimately did not respond to the questions raised, but rather deferred to national judges’ assessments in that regard. This marks a departure from previous practice, for instance, in Matzak, where the Court was willing to pre-empt the referring national court’s assessment. Second, despite this deference, it spelled out rather detailed guidance to steer national judges in their deliberation whether a stand-by period may constitute working time under the Directive. In contrast to the Court’s wholehearted endorsements of workers’ protection, however, its actual guidance in these cases falls short of expectations. Rather, the standards thus devised are most likely to play out against workers’ interests. Not unlike Amazon, the Court of Justice may boast of the protection that Union law affords workers, even though an examination of its jurisprudence reveals that its empathy with workers’ interests is primarily decorative in nature.