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Summary week 5-7 European Labour and Social Security Law, ISBN: 9781780687049 (PUB4007)
European Labour and Social Security Law - Literature Summaries week 1
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European Labour and Social Security Law (PUB4007)
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Week 1 – Introduction & working time
Assignments
a) How is the working time calculated correctly? Are the agreements legally possible
considering the Working Time Directive?
Firstly, take into consideration whether Directives can be relied upon. They cannot be relied on in
horizontal situations because transposition into national law is required. However, the city council is
an organ of state, therefore the firefighters are in a vertical relationship and can thus rely on the
directive.
Consider first whether the Directive is applicable. The directive doesn’t contain a specific article
setting out the scope. It does refer to ‘worker’ in art. 3. There are no problems concerning the
applicability.
Working time is regulated in art. 2(1)1. How it is calculated is therefore based on art. 2(1) and
additional case law. For our case, Rudy Matzak, par. 60, is important: Finally, it must be observed that
the situation is different where the worker performs a stand-by duty according to a stand-by system
which requires that the worker be permanently accessible without being required to be present at the
place of work. Even if he is at the disposal of his employer, since it must be possible to contact him, in
that situation the worker may manage his time with fewer constraints and pursue his own interests. In
those circumstances, only time linked to the actual provision of services must be regarded as ‘working
time’, within the meaning of Directive 2003/88.
Before Matzak-criteria: whether or not employer specified place to be (required is physical presence at
the workplace). But Belgium was creative and did not prescribe a place. Then came Matzak: doesn’t
matter where the person is. But how free he is. You’re not free to do what you want!
The agreements
1) During any of these shifts, the employee is obliged to be able to be at the fire station within
five minutes. The shifts are only recognised as working time when alarms come in and work
is actually done.
2) Article 2(1) Directive 2003/88/EC gives the definition for ‘working time’ which is any period
during which the worker is working, at the employer's disposal and carrying out his activity or
duties, in accordance with national laws and/or practice. The stand-by shifts of the fire-
fighters in Vigo should be counting as working time based on case law.
Case C-518/15 Rudy Matzak, has stated that in case a stand-by shifts are so restrictive that
they hinder the person to actually pursue his personal interests, that it should be counted as
working time, since there’re too much constraints. In this case there are temporal and
geographical limits as to the persons’ whereabouts. Therefore, the stand-by shifts should count
as working time based on article 2(2) Directive 2003/88/EC and the Rudy Matzak Case. This
agreement is thus not legally possible under the Working Time Directive.
Does it matter whether its normal behaviour? Is a doctor on call in the morning
allowed to drink?
Criminal behaviour should be refrained from at any time.
Could art. 16 be a possibility in this case? prolonging the reference period not possible in this
case, because they already measured 12 months
3) Statistics show that during 62% of the time spent on the availability shifts, no alarms
1
Definitions in art. 2 autonomous meaning no derogation possible.
1
, come in and therefore, no work is done. The average working time (measured over 12
months), according to the city, does not exceed 48 hours, which is in line with working time
statistics of other emergency services.
Article 6(b) states that the maximum weekly working time is 48 hours. The employer reasons
from the fact that the availability shifts in which no alarms come, and thus no actual work is
done, do not count as working time. He therefore comes to the conclusion that the weekly
working time does not exceed 48 hours. However, regarding the first agreement we came to
the conclusion that the highly restrictive availability shifts should
actually count as working time. Assuming that this constitutes the other 62%, one can
conclude that is highly likely that the 48 hour limit is exceeded. Therefore this agreement is
also not legally possible under the Working Time Directive since the restrictive availability
shifts should be included in the calculation of the working time. Article 18 states that
derogation can be made from several articles via a collective
agreement. The content of article 6 does not fall within the possibility for derogations.
However, a country can opt out individually. Article 19 provides for a prolongation of
maximum 12 months in exceptional situations.
So, options in order to derogate (from content) of the Directive in general:
art. 17 (industries in which work cannot be interrupted due to technical) derogation
by law; or
art. 18 (not content) derogation by collective agreement/19 = collective agreement
Derogations:
- Interesting: art. 16 prolonging reference period (not really a derogation of the 48hrs, but an
option). You can work 60 hrs, if measured over a longer period.
- Art. 17(3)
- Absolute maximum: art. 19 “no event exceeding 12 months” = maximum spreading
working time + you need a collective agreement when you exceed
This case: maximum prolongation already done, city council is at fault.
b) Jose Maria Sanchez Sanchez is a new father of four. He urgently needs extra money, as
quadruplets are expensive and his wife stays home with the young children, not
contributing to the income. The amount of noise and the needs of four babies (feeding,
nappy changing, feeding … ) are an additional factor for him not to mind to be off to
work a lot. He wants to know where the absolute limits are on what he can agree with his
boss.
Minimum standards are laid down in Chapter 2 of the Working Time Directive 2003/88/EC.
- Article 3: Daily, he should have a minimum of 11 resting hours.
- Article 4: In case the working day is longer than six hours, he is entitled to a break.
- Article 5: In a working week, he is entitled to a minimum uninterrupted rest period of 24 hours
+ daily rest of 11 hours.
- Article 6: He can work a maximum of 48 hours per week.
- Article 7: He is entitled to paid annual leave of at least 4 weeks. The conditions for this can be
laid down in national law/practice.
The employer must comply with the minimum standards set above and Jose must meet the minimum
resting/maximum working periods.
However, there is an additional option for Jose:
2
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