When the availability is working hours according to the EU Court of Justice

Time.news – Availability “constitutes, in its entirety, working hours if the constraints imposed on the worker significantly affect his ability to manage his free time”. This was decided by the EU Court of Justice ruling on the case of a transmission technician working in a mountainous area in Slovenia and a German firefighter (who on call had to be able to reach the city limits in twenty minutes with an outfit and a service vehicle).

The organizational difficulties that a period of guard or readiness can cause for the worker are not relevant and that they are the consequence of natural factors or of his free choice “, the judges specified.

The Court also pointed out that, in order to assess whether a period of on call or readiness constitutes ‘working time’, only the constraints imposed on the worker – indifferently – by national legislation, by a collective agreement or by the employer of the worker itself, can be taken into account. On the other hand, the organizational difficulties that a period of alertness or readiness can cause to a worker and which are the consequence of natural elements or of the latter’s free choice “are not relevant”.

This is the case, for example, when the area, from which the worker cannot, in practice, leave during a period of readiness under an on-call system, is not very favorable for leisure activities.

Furthermore, the Court pointed out that it is for the national courts to make an overall assessment of all the circumstances of the case in order to ascertain whether a period of on-call readiness should be classified as “working time”, since the qualification is not in fact automatic in the absence of an obligation to remain in the workplace.

To this end, on the one hand, it is necessary to take into account the reasonable nature of the period available to the worker to resume his professional activities from the moment in which his employer requests his intervention, which, as a rule, , implies that he reaches his workplace.

However, the court pointed out that the consequences of such a term must be assessed in a concrete way, taking into account not only the other constraints that are imposed on the worker, such as the obligation to be equipped with specific equipment if he has to go to his workplace, but also the facilities that are granted to him.



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