Periods of stand-by as working time - the Brussels Labour Court rules in the Matzak case
18 Feb 2020
Following the European Court of Justice (ECJ) 2018 Matzak judgment, the Brussels Labour Court decided on the merits of this case on 20 January 2020. The Court sided with the ECJ and found that the stand-by periods performed by Mr Matzak – which he could spend at home, but with a duty to reach the fire station within 8 minutes if called – were significantly restricting his opportunity to undertake other activities, and must therefore be regarded as working time in their entirety.
Facts of the Matzak case
Mr Matzak was a resident of the Belgian town of Nivelles who – on top of his day job – held a position as a (paid) volunteer firefighter. In this capacity, he was required to perform periods of stand-by duty during evenings and weekends. If called during a stand-by period, he had to reach the fire station within 8 minutes and, to this end, he was required to reside within an 8-minute radius of the fire station.
During a stand-by period, Mr Matzak was only paid for the time he was actually performing firefighting duties (‘active stand-by time’). The remainder of the stand-by time, during which he was on call but not performing actual services (‘inactive stand-by time’), was unpaid. Mr Matzak, however, argued that his inactive stand-by time should also be considered as ‘working time’ and should therefore also have been remunerated. The town of Nivelles disagreed with Mr Matzak’s assertion and the ensuing dispute ended up before the Brussels Labour Court, which decided to stay the proceedings and present the ECJ with a request for a preliminary ruling on the matter.
The Matzak judgment of the European Court of Justice
The European Working Time Directive defines ‘working time’ 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.
In the case at hand, the ECJ found that the stand-by periods performed by Mr Matzak – which he could spend at home, but with a duty to reach the fire station within 8 minutes if called – were significantly restricting his opportunities for other activities, and must therefore be regarded as working time as defined in the Directive. This meant that the stand-by period must be considered as working time in its entirety, including the inactive stand-by time during which no actual services are being performed.
The Matzak decision of the Brussels Labour Court
Following the ECJ judgment, the case was referred back to the Brussels Labour Court to decide on its merits. In its ruling of 20 January 2020, the Brussels Labour Court – following the ECJ interpretation – found that the entire stand-by period in Mr Matzak’s situation should be considered as working time.
Next, the Brussels Labour Court examined whether Mr Matzak should be remunerated for his inactive stand-by time (which had been unpaid, see above). In this respect, it’s important to recall that the European Working Directive does not determine how working time should be remunerated. If and how working time – including stand-by periods that are to be considered as such – is remunerated remains the exclusive competence of the Member States and so must be determined on the basis of local legislation. In the case at hand, the Labour Court decided – on the basis of anti-discrimination law – to grant Mr Matzak the same lump-sum compensation as that received by the professional firefighters (EUR 0.71 per inactive stand-by hour).
Impact on how to assess inactive stand-by periods in Belgium
In the Belgian legislation, working time is defined as the time during which a worker is at the disposal of the employer, which the Belgian Courts interpret as the time during which employees are required to act on the instructions of the employer and cannot spend their time freely.
Applying these principles to periods of stand-by, while taking into account the ECJ’s judgment in the Matzak case, leads to 3 types of stand-by periods being distinguished:
stand-by periods during which the employee is required to be present at the workplace: the entire stand-by period must be considered as ‘working time’, so also the time during which no professional activities are performed;
stand-by periods during which the employee needs to keep himself available to respond to his employer’s calls, without having to be physically present at the workplace: only the time during which actual professional activities are performed is considered as working time;
“Matzak” stand-by periods during which the employee doesn’t have to be physically present at the workplace but must keep himself available and, moreover, if called on, is required to respond at a very short notice (e.g. the requirement to be at the fire station within 8 minutes of being called): such an additional requirement significantly limits the employee’s possibility to engage in other activities and, as a result, the entire stand-by period – even the time during which no professional activities are performed – must be considered as ‘working time’.
Key take-aways
Periods of stand-by are not only employed by the usual suspects, such as fire departments. The private sector also uses periods of stand-by, e.g. a company’s IT coordinator who is on stand-by duty during the weekends, or members of a company’s customer support department who remotely man the helpdesk outside business hours.
These examples usually concern periods of stand-by during which the employees are not required to be physically present at the workplace but must be available for e.g. field calls. Up until the ECJ’s Matzak judgment, only the part of the period of stand-by during which the employee was actually working (e.g. remotely solving an IT problem) was considered as working time whereas the so-called inactive stand-by time was not. The Matzak judgment, however, considerably nuanced this principle: a nuance that had a significant monetary impact on the municipality of Nivelles.
If you (occasionally or frequently) make use of periods of stand-by duty for your employees – during which they aren’t required to be physically present at the workplace – what should be your take-away after the Matzak judgment?
Evaluation of your stand-by scheme
Companies should consider re-evaluating their stand-by system and try to make sure that – if feasible from a business perspective – the employees’ opportunities for other activities are not significantly restricted during their inactive stand-by time. Two examples of elements that could be taken into account in such an assessment are the way in which the employees must respond to a stand-by call (relocate to the workplace or perform work remotely) and the time within which the employees must respond to such calls (immediately or within a certain timeframe).
Remuneration of periods of stand-by
As mentioned above, while the European Working Time Directive determines how the notion of ‘working time’ should be interpreted, it does not determine how working time should be remunerated. The latter remains the exclusive competence of the Member States and must be analysed on the basis of local legislation. In Belgium, a company will therefore have to take into account the local Belgian legislation (including sectoral provisions) to determine the remuneration aspects of stand-by periods.
Companies working with stand-by duty in Belgium should make sure there is a clear legal framework on how periods of (active and inactive) stand-by are remunerated. In this respect, it should first be verified whether such a framework has been concluded within the applicable Joint Committee and, if not, one should adopt a company-level policy regarding the stand-by work. Clearly laying down the terms and conditions including the remuneration aspects of (active and inactive) stand-by time will be key in managing employees’ expectations in this respect and thus avoid discussions afterwards.
Stand-by duty and maximum working hours
Next to the question on the remuneration of periods of stand-by, the regulations on overtime can also come into play here: if the combination of regular working time and the stand-by working time exceeds the legal overtime thresholds, legal overtime payments (50% or 100%) and/or compensatory rest will have to be granted.
Companies that are structurally confronted with a lot of overtime could consider looking into the possibility of a system of ‘voluntary overtime’, allowing employees to perform 120 voluntary overtime hours per year for which no compensatory rest must be granted.
In this respect, it should be kept in mind that certain categories of employees – notably employees holding an executive position or a position of trust – are excluded from several aspects of the Belgian working time legislation, including the provisions on overtime.
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.
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