Do on-call periods for border patrol officers count as rest or work time? Europe’s top court says it’s work.
LUXEMBOURG (CN) — Just in time for International Workers’ Day, the European Union’s highest court pushed back against employers forcing their employees to work more than is permitted.
The European Court of Justice wrote in its ruling Thursday that it’s clear the EU’s Working Time Directive “applies to activities in the field of public health, safety and order, even if those activities are carried out by the intervention police.” The ruling is not available in English.
In the case at hand, a member of the Hungarian Rapid Intervention Police brought a complaint against the state for forcing him to work beyond the statutorily limited 48 hours per week. The police service counted time when the office was confined to his barracks, in uniform, and required to be ready at a moment’s notice as non-working time.
While on call, officers of the Rapid Intervention Police couldn’t even leave to shop for essentials like food, toiletries or cigarettes.
Hungary argued that it was “inconceivable to plan the working time of the members of the intervention police assigned to the external borders, given the need to ensure a continuous presence and provision of services.”
“The Working Time Directive does not reference access to cigarettes as essential,” said Tobias Nowak, assistant professor of political science at the University of Groningen, whose research focuses on European labor law. “But the case law says that if an employee must be at the disposal of their employer, it is working time.”
The Working Time Directive, passed in 1993, guarantees workers in the 27-member political and economic union the right to four weeks of holiday per year, a maximum 48-hour workweek, and one day off for every seven days worked.
Since the directive was adopted, the European Commission, representing the interests of member states, and the Court of Justice have repeatedly butted heads over numerous components of the regulation.
Some aspects of the directive are spelled out explicitly. A 2003 update requires that “night workers must not perform heavy or dangerous work for longer than 8 hours in any 24-hour period,” and “for each 7-day period a worker is entitled to a minimum of 24 uninterrupted hours in addition to the 11 hours’ daily rest.”
But what qualifies as working time is not as clear.
“Perhaps a regulation called the Working Time Directive should have done a better job spelling out the definition of working time,” Nowak quipped.
In the landmark 2000 SIMAP decision, the Luxembourg-based court held that all of the time that workers were required to be on-site for their jobs counted as working time. Three years later, it elaborated in its Jaeger decision that was true even if workers had access to a bed.
Both of those cases involved doctors who were required to be physically present in a hospital for on-call shifts. Most of the Working Time Directive cases have involved doctors or emergency responders like firefighters, for whom, member states argue, it is impossible to maintain a 48-hour working week.
“It’s expensive for governments to hire extra doctors or emergency workers to maintain,” Nowak said. “But the court has said that is a problem for the member state to resolve.”
Thursday’s decision was yet another blow to member states worried about their bottom lines. Hungary argued that the 2015 European migrant crisis meant that it needed readily available police officers to guard the border with Serbia, Croatia and Romania. Those countries are not part of the Schengen Area —- the area of border-free travel in the EU — and are along the Balkan migration route which saw some 700,000 people cross illegally at the peak of the crisis.
That argument was rejected by the Court of Justice on Thursday.
“It has not been established that the fact that a member of the intervention police is entitled to hours or days [off] … would undermine an essential aspect of the duties which this worker normally has to perform,” the ruling states.
The seven-judge panel suggested that the police force could have used a rotational system to ensure officers had their required time off.
“Everyone knows that working time cases are winners in Luxembourg,” said an employment lawyer speaking on the condition of anonymity because their firm is currently involved in proceedings with the court.
Nearly every case brought before the court involving the Working Time Directive has been decided in favor of the employee.
There are exceptions to the limits, but “those are intended for war or natural disasters,” said Nowak.
“It is the nature of these [emergency] services to react to unexpected situations,” he said. “You have to take this into account when you set them up.”
The Court of Justice sees itself as a champion of workers’ rights. In a video published in 2018 to celebrate the May Day holiday — titled “The Court of Justice in the Workplace: Protecting the rights of workers” — the EU’s top court highlighted the decisions it’s made in favor of workers over the past two decades.
If you get sick while on vacation, you are entitled to get those holiday hours back. Companies cannot force you to wait to take a vacation when you start a new job. And if you’re on long-term disability leave, you can’t lose your vacation days. All of those protections are found in the caselaw of the Court of Justice.
As for the Hungarian police officer, his case will be returned to Hungary, where the national court will issue a final ruling with the clear guidance from the Court of Justice that the Working Time Directive “applies to members of the law enforcement agencies who guard the external borders of a member state in the event of an influx of third-country nationals at those borders.”