Delimiting Working Time From Rest Time in the Case of Workers Residing at the Workplace

Razvan Anghel

doi:10.2139/ssrn.3627787

Abstract

The article presents the particular problems encountered in the process of delimiting working time from rest time in the case of workers who, due to the specific nature of their work and its organization, imposed by the employer, reside at the workplace, in which casethe question arises whether and under what conditions, the inactive periods spent by workers in their own residence may be included in working time. In order to identify these issues and possible solutions, the jurisprudence of the Court of Justice of the European Union is analyzed in order to establish principles applicable in this situation, as well as the national jurisprudence of Romania and that of other EU Member States, which is relevant in view of the common regulation of working time for all those States by Directive 2003/88.The practical implications of these issues are important from the perspective of the employer's obligation to respect the maximum weekly working time. In the presented conclusions, some criteria for the delimitation of working time from the rest time in this case are proposed, namely certain conditions, the fulfillment of which must be checked on a case-by-case basis.

Highlights

In the context of the development of the concept of working time and the constant jurisprudence of the Court of Justice of the European Union (CJEU) in the sense that, in general, periods during which the worker is present in his own residence, even if at the employer's disposal, must be regarded as rest time[6], the question was whether a period during which the employee is at the disposal of the employer and may be required to resume work at any time may be included in working time, even if the employee is in his or her place of residence, when that residence is located at the work place
What is to be checked out is whether, the residence is at the workplace, there are periods that can be classified as rest periods in which a worker can handle personal interests, even leaving that home and the work place without to be asked to stay in that place to be ready to work at any moment
The recent nuances made by the CJEU in the Matzak case, according to which working time can even be the time spent at home, if restrictive conditions are imposed so that the period cannot be considered as rest time, even more a period spent in a residence located at the workplace must be regarded as working time if the employee is required to live at the workplace and to be available at any time to resume his/her activity as a general rule, so that implicitly the employee must remain permanently in that place, and there is not put in place a shift work system

Summary

Introduction

In the case-law of the Court of Justice of the European Union (CJEU), the concept of working time defined by Directive 2003/88 has been developed to include periods of time in which the employees are at work place without performing the work[2] or they are in their own residence, notworking, remaining at. Volume 8, Issue 3, December 2018 the employer's disposal in particular conditions[3], which gave rise to new problems regarding the delimitation of working time by the rest time Particular problems in this regard raise the situation of employees who, by the nature of their attributions or the way in which the employer's activity is organized, have stable accommodation in the same place where the workplace is located or in its immediate proximity, being in the same time present in their own residence and at work place, readyto intervene at any time if they would be asked to. In this context, investigating the jurisprudence of the courts of other EU Member States is very useful in identifying solutions for problems that Romanian courts may face someday, since all these courts are considering the same regulation, namely Directive 2003/88 concerning certain aspects of the organisation of working time

Applicable criteria for delimiting working time from rest time

Applying the criteria in the national jurisprudence of the EU Member States

Conclusions