Court of Cassation rules on remuneration for stand-by time
22 Dec 2023
In a recent judgement, the Court of Cassation ruled that an employee was entitled to their normal salary for periods of stand-by time outside of the workplace – periods which in this case constituted working time but during which no actual work was performed –, as no alternative arrangements regarding the remuneration of those periods of stand-by time were applicable in the company or on sectoral level.
Quick catch-up on the context
In accordance with the European Working Time Directive, ‘working time’ is defined as any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice.
On the question of whether periods of stand-by, or on-call, time performed outside of the workplace constitute working time, the European Court of Justice (ECJ) has developed consistent case-law in recent years (such as e.g. the Matzak case). As such, the ECJ has ruled that periods of stand-by time should be considered working time when they significantly limit the employee’s possibility to engage in other activities. This is a highly factual assessment, but in general, when the employee doesn’t have to be physically present at the workplace, but must keep himself permanently available and, if called on, is required to respond at very short notice, the stand-by time will in principle be considered working time.
Whereas the European Working Time Directive – and the related ECJ case-law – determines how the notion of ‘working time’ should be interpreted, it remains the exclusive competence of the member states to determine how (different types of) working time should be remunerated. In this respect, both the ECJ and the Belgian Court of Cassation have ruled in the past that periods of stand-by time can be remunerated differently than periods of working time during which work is actually performed. Note in this respect that Belgian labour law does not specify in general how periods of stand-by time that constitute working time should be remunerated in comparison with ‘normal’ working time, which can lead to discussions between the employee and the employer, especially when nothing is determined on sectoral level or in the employment agreement either, as was true in the case that gave rise to this Court of Cassation judgement.
Judgement of the Court of Cassation
In the case at hand, a dismissed employee claimed back-pay for periods of stand-by time performed outside the workplace. After finding that these specific periods of stand-by time should in fact be considered working time, using the criteria developed by the ECJ (cfr. above), the labour courts ruled, both in first instance and in appeal, that the employee’s normal hourly wage was due for this stand-by time.
The employer filed an appeal in cassation against the labour court’s judgement, arguing that it doesn’t follow from Belgian labour law that, merely because an instance of stand-by time is to be considered as working time, it must automatically be paid as working time during which actual work is performed. This is only the case, the employer argued, if an individual or collective agreement contains provisions to this end, which was not the case.
The Court of Cassation, however, did not follow this reasoning and ruled that, in the case at hand – where an hourly wage is agreed upon without distinction between the different types of work performed – this hourly wage is applicable for all working hours performed in execution of the employment agreement, including hours of stand-by time at home that constitute working time. In other words, the Court ruled that, in this set of circumstances – where no alternative remuneration arrangements were applicable for stand-by time – normal salary was due.
Conclusion
Although one could argue that the Court of Cassation seems to take some liberty with the distinction between working time during which actual work is performed and stand-by time that classifies as working time but during which the employee doesn’t actually work, its judgement clearly emphasises the importance of having a clear legal framework on how stand-by time is remunerated within the company. In case no framework has been concluded within the applicable joint committee, but the company wishes to provide for an alternative remuneration for the stand-by time, company-level arrangements should preferably be made, in order to avoid that the employee would argue that normal salary is due for these periods of stand-by time.
If you need help navigating the complex waters of the Belgian working time legislation, the PwC Legal Employment Law team would be happy to help, so don’t hesitate to reach out!
