On 21 June 2021, the Court of Cassation ruled that stand-by time of (voluntary) firemen performed outside of the fire station must be considered as working time if their opportunities for other activities are significantly restricted. However, the Court also reiterated that such stand-by time must not necessarily be remunerated with normal salary and a lower remuneration can be provided in the organisational regulations that are applicable to the firemen, which was the case in the present dispute.
The facts in the case at hand
In the case brought before the Court of Cassation, a volunteer fireman at the city of Beaumont claimed outstanding pay for their stand-by time. The Labour Court of Bergen ruled in its judgement of 20 December 2018 that the stand-by time (performed outside of the fire station) in the case at hand significantly limited the voluntary fireman in their possibility to undertake other activities and therefore had to be considered as working time. The Labour Court continued by stating that - because the city of Beaumont’s organisational regulations stated that all working time must be remunerated with normal salary - the voluntary fireman was entitled to normal salary for the remuneration of their entire stand-by time.
The city of Beaumont filed an appeal against this judgment and the case was brought before the Court of Cassation.
The judgement of the Court of Cassation
In its assessment, the Court of Cassation set out the key principles of working time as laid down in Directive No. 2003/88/CE - the European Working Time Directive (“Directive”) and interpreted by the case law of the European Court of Justice (“ECJ”).
The Court of Cassation referred to the ECJ’s Matzak and RJ judgments, in which the ECJ recalled that periods of stand-by time that are performed outside of the place of work do not automatically qualify as working time. However, according to the ECJ, such periods of stand-by time will fall within the concept of working time if the constraints imposed on the employee during those periods objectively and very significantly affect their ability to freely manage the time during which professional services are not required and to pursue their own interests.
In this case, the volunteer fireman who was employed by the city of Beaumont, had to -during their stand-by time outside of the fire station-:
- be present in the commune; or,
- be within a radius of seven kilometres from the fire station; or,
- be within a radius such that he could reach the fire station within ten minutes and had to reach the fire station within ten minutes if called upon to do so, on pain of being suspended from duty.
Based on the above, the Court of Cassation ruled that the volunteer fireman is restricted in an objective and very significant way to freely arrange his stand-by time outside of the fire station, which must therefore be considered as working time.
Further, the Court of Cassation ruled on the remuneration of this stand-by time and recalled that the way in which workers are remunerated for periods of stand-by time is not governed by the Directive but rather determined on a national level. Even though classified as working time, periods of stand-by time during which no activities are performed (also called “inactive stand-by”) can be remunerated differently than working time during which actual activities are performed
The Court found that the provisions of the organisational regulations that are applicable to firemen within the municipality of Beaumont provide different types of remuneration for different categories of services rendered by volunteer firefighters, including a specific one for stand-by time. This specific remuneration for stand-by time, which is lower than 100% of the normal salary, therefore had to be applied. Consequently, the Court of Cassation overruled the judgement of the Labour Court of Bergen, which stated that the fireman’s (inactive) stand-by time that classified as working time necessarily had to be remunerated with normal salary.
The Court of Cassation’s judgement serves as a good reminder that - following the ECJ’s standing case-law on this topic - stand-by time outside of the workplace can be considered as working time in its entirety, even if the employee doesn’t have to perform actual work. This, however, doesn’t mean that inactive stand-by time necessarily has to be remunerated with 100% of the normal salary; local legislation can provide for a different level of remuneration for such type of stand-by time.
If you have any questions in this respect, do not hesitate to contact us.
Bart Elias, Partner, PwC Legal
Pascale Moreau, Partner, PwC Legal BV/SRL