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The European Court of Justice (ECJ) gave its judgement on 1 December 2005 in the case Abdelkader Dellas and Others v Premier ministre and Others.
The European working time directive lays down minimum safety and health requirements. Under the directive, workers are entitled to minimum rest periods, particularly daily and weekly, and adequate breaks. It also fixes the maximum weekly working time at 48 hours, including overtime.
For those purposes, the directive distinguishes between 'working time' and 'rest periods'. It does not provide for any intermediate category, and classification as 'working time' does not depend on the intensity of the work done. The ECJ has already held that, for the purposes of the directive, on-call duty performed by doctors, nursing staff of emergency services, emergency workers and firefighters at their workplace must be regarded in its entirety as working time, regardless of the work actually done.
In France, for periods of night duty by workers in certain social and medico-social establishments, the law provides a weighting mechanism for the purpose of calculating pay and overtime which is intended to take account of the fact that there are periods of inactivity during on-call duty. The decree establishes a 3 to 1 ratio for the first nine hours followed by a 2 to 1 ratio for subsequent hours between the hours of presence and the working hours actually counted.
Mr. Dellas, a special needs teacher in residential establishments for handicapped young persons, was dismissed by his employer as a result of disagreements relating in particular to the definition of actual work and the remuneration due for hours of night work on call in a room on the premises. Mr. Dellas and a number of trade unions brought proceedings before the Council of State for the annulment of the decree in question. The Council of State essentially asks the Court of Justice whether such a system is compatible with the directive.
The Court of Justice found, first, that the directive does not apply to the remuneration of workers.
On the other hand, the hours of presence in question must be counted in their entirety as working time for ascertaining whether all the minimum requirements, as laid down by the directive in order to provide effective protection of the safety and health of workers, have been complied with. The flat-rate weighting mechanism in question takes the hours of presence of the workers concerned into account only in part. The total working time of a worker may thus amount to, or even exceed, 60 hours a week. Consequently, such a national system of calculating on-call time exceeds the maximum weekly working time fixed by the directive at 48 hours.
...back to 8 December 2005
Sources:
The Court of Justice confirms that on-call duty is classified as working time
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