Complainant

Respondent

Anonymised Parties

A Retained Firefighter

A Local Authority

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00030802-001

09/09/2019

The complainant has been employed by the respondent as a Retained Firefighter since June 1990. The complaint relates to the following alleged breaches of the Organisation of Working Time Act, 1997; Section 11 (Daily Rest Breaks), Section 12 (Rest Breaks at work), Section 13 (Weekly Rest), Section 14 (Sunday Work), Section 15 (Excessive Weekly working Hours), Section 16 (Excessive Working Hours per day/week), Section 19 (Annual Leave entitlements), and Section 21 (Public Holiday Entitlements).

The complaint was referred to the WRC on 9th September 2019. The relevant period is therefore 10th March 2019 to 9th September 2019.

The complainant stated that he has been employed by the Local Authority as a Retained Firefighter since September 1990. He is required to reside within an eight-minute response time of the fire station while on call. The complainant stated that this requirement places considerable restrictions on him and prevents him from being the sole carer for his children or from engaging in the children’s extra-curricular activities during that time. In addition, the complainant alleged that he is unable to engage in his own personal activities or visit family as he is required to remain within the eight-minute response time of the Fire Station.

The complainant contends that while he is on-call, he is actually engaged in working time and states that the issue was addressed by the Court of Justice of the European Union in case C-518/15 Ville de Nivelles v Rudy Matzak, ECLI:EU:C:2017:619 (hereafter “Matzak”). The complainant stated that in the Matzak case, a volunteer firefighter who was required to remain at home and report to the Fire Station within 8 minutes of receiving an alert was deemed to have been engaged in “working time” while on call, on the basis of the requirements placed on him by the employer.

The respondent stated that Article 2(1) and (2) of Directive 2003/88 define working time as being “any period during which the worker is working, at the employer’s disposal and carrying out his activities or duties”. Rest periods are defined as “any period which is not working”.

The respondent cited the CJEU in cases C‑303/98 Sindicato de Medicos de Asistencia Publica (SIMAP) v Constelleria de Sandidad eY Consumo de la Generalidad Valenciana [2000] IRLR 845 and CaseC‑151/02 Landesshauptstadt Keil v Jaeger [2003] IRLR 804 ("the SIMAP and Jaeger cases") which provide that time spent on standby can only be regarded as working time if the workers are required to be present at the workplace, whereas workers who are not required to remain at a place determined by the employer, but who must be reachable if required, are only engaged in working time while actually involved in the provision of services.

The respondent stated that the complainant, in this matter, while on call is not required to remain at a place determined by the employer and is not involved in the provision of services.

The respondent also stated that whilst the complainant is paid a retainer to be available, he is also paid additional fees for attending at fires and training events, which are calculated separately. Accordingly, the respondent contends that the time spent on-call cannot be regarded as working time.

The respondent claims that the complainant’s position is more effectively reflected in the Matzak at Paragraph 60 which states as follows:

“it must be observed that the situation is different where the worker performs a stand-by duty according to a stand by system which requires that the worker be permanently accessible without being required to be present at the place of work. Even if he is at the disposal of his employer, since it must be possible to contact him, in that situation the worker may manage his time with fewer constraints and pursue his own interests. In those circumstances, only time linked to the actual provision of services must be regarded as working time within the meaning of Directive 2003/88 (see to that effect, judgement of 9 September 2003, Jaeger, C-151/02, eu:c:2003:437, paragraph 65 and the case law cited).”

The complainant has stated that the respondent has committed multiple breaches of the Organisation of Working Time Act, 1997, in respect of his employment as a Retained Firefighter. The alleged breaches are based on the complainant’s assertions that, by virtue of the CJEU Decision in Matzak, all time spent on standby/on-call is regarded as working time.

In reaching my decision therefore, I must have regard to:

(1)   Definitions of Working Time

Article 2(1) of Directive 2003/88/EC defines working time as follows:

“working time” means 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.

Section 2(1) of the Organisation of Working Time Act, 1997 defines working time as follows:

"working lime " means any time that the employee is

(a)    at his or her place of work or at his or her employer's disposal, and

(b)    carrying on or performing the activities or duties of his or her work,

And

"work" shall be construed accordingly.

Article 2(2) of Directive 2003/88/EC defines rest periods as follows:

“rest period” means any period which is not working time.

and

(2)   Case C-518/15 Ville de Nivelles v Rudy Matzak ECLI:EU:C: 2017: 619(Matzak)

The complainant’s case is grounded on the decision of the CJEU in Matzak. Consequently, it is necessary to consider if the facts of this case are congruent with those giving rise to the decision relied upon. In her Opinion in Matzak Advocate General Sharpston, at par 10, recited the following facts set out in the order for reference by the referring court: -

 Mr Rudy Matzak is a retained firefighter for the Ville de Nivelles (Town of Nivelles), Belgium.  Under the arrangements which apply to his engagement, he is required to be available on call for work, for one week out of every four, during the evenings and at the weekend. He is paid only in respect of time when he is on active service. Time spent on call without the firefighter being required to carry out any professional duties (so-called ‘stand-by time’) is unpaid.

Consequently, as is evident from this passage, reliance was placed in that case on a clearly discernible period of putative working time. In this particular case, the complainant is contending that every hour of every hour he is on call is to be regarded as working time. That is therefore a significant and material difference between this case and Matzak. Moreover, as is clear from the judgment of the CJEU, Mr Matzak was obligated to remain at home during the period of stand-by. That is clear from question 4 in the order of reference, which was: -

Does Directive 2003/88 … prevent home-based on-call time from being regarded as working time when, although the on-call time is undertaken at the home of the worker, the constraints on him during the on-call time (such as the duty to respond to calls from his employer within 8 minutes) very significantly restrict the opportunities to undertake other activities?’

That question was answered by the court, at par 67 of the judgment, in the following terms: -

Article 2 of Directive 2003/88 must be interpreted as meaning that stand-by time which a worker spends at home with the duty to respond to calls from his employer within 8 minutes, very significantly restricting the opportunities for other activities, must be regarded as ‘working time’.

It is, accordingly, clear that a key factor in that decision was the fact that Mr Matzak was required to spend the identified period of stand-by at his home.

In this particular case, I do not accept the complainant is required to spend the totality of the time contended for as working time at his home and note that he is free to seek employment elsewhere, once an employer is willing for him to be released when required.

I note that in Matzak at pars 59 and 60 the CJEU pointed out as follows:

Furthermore, it is apparent from the case-law of the Court that the determining factor for the classification of 'working time’ within the meaning of Directive 2003 88, is the requirement that the worker be physically present at the place determined by the employer and to be available to the employer in order to be able to provide the appropriate services immediately in case of need. In fact, those obligations, which make it impossible for the workers concerned to choose the place where they stay during stand-by periods, must be regarded as coming within the ambit of the performance of their duties (see, to that effect, judgment of 9 September 2003, Jaeger, C-15//02, EU:C:2003:437, paragraph 63, and order of4 March 2011, Grigore, C-258 10, not published, EU:C:2011: 122, paragraph 53 and the case-law cited).

Finally, it must be observed that the situation is different where the worker performs a stand-by duty according to a stand-by system which requires that the worker be permanently accessible without being required to be present at the place of work. Even if he is at the disposal of his employer, since it must be possible to contact him, in that situation the worker may manage his time with fewer constraints and pursue his own interests. In those circumstances, only time linked to the actual provision of services must be regarded as 'working time', within the meaning of Directive 2003/88 (see, to that effect, judgment of 9 September 2003, Jaeger, C-151/02, EU:C:2003:437, paragraph 65 and the case-law cited). [Emphasis added]

I also note in Matzak at pars 63, 64 and 65 that the CJEU stated as follows:

63. The obligation to remain physically present at the place determined by the employer and the geographical and temporal constraints resulting from the requirement to reach his place of work within 8 minutes are such as to objectively limit the opportunities which a worker in Mr. Matzak’s circumstances has to devote himself to his personal and social interests.

64. In the light of those constraints, Mr. Matzak’s situation differs from that of a worker who, during his standby duty, must simply be at his employer’s disposal inasmuch as it must be possible to contact him.

65. In those circumstances, it is necessary to interpret the concept of ‘working time’ provided for in Article 2 of Directive 2003/88 as applying to a situation in which a worker is obliged to spend stand-by time at his home, to be available there to his employer and to be able to reach his place of work within 8 minutes.

In this case, the complainant is not required to remain at a physical place determined by the respondent for the period of on-call and he is free to engage in other work, provided that his employer is willing for him to be released from his working hours once alerted. The complainant can also declare himself unavailable to attend up to 25% of alerts.

Having regard to the material factual difference between this matter and the Matzak case, I am satisfied that the latter decision is clearly distinguishable and, accordingly, I find that the complainant’s period of on-call, does not meet the definition of working time.

For the reasons set out above, I find that the complaint made, in relation to breaches of the Organisation of Working Time Act, is not well founded.