Employment and Industrial Relations Law
On-Call Working Arrangements
The relevant legislation on Working Time
The EU Working Time Directive (2003/88/EC) was transposed into Maltese legislation by virtue of the Organisation of Working Time Regulations, Subsidiary Legislation 452.87, which sets out the minimum requirements for the organisation of working time.
The term ‘working time’ is defined under the Regulations as being “any period during which the worker is available for service to the employer and is carrying out his activity or duties, and includes any relevant training and any other additional period which is to be treated as working time for the purposes of these regulations under any relevant agreement”. The Employee must be available to provide work for his employer, and working time includes relevant training periods.
The salient requirements established under the Regulations and important definitions to consider are the following:
- Daily rest: every worker shall be entitled to a minimum daily rest period of eleven (11) consecutive hours per twenty-four (24) hour period during which the worker performs work for his employer. The Regulations define ‘rest period’ as “any period which is not working time and does not include leave to which a worker is entitled under these regulations”;
- Rest breaks: every worker shall be entitled to a rest break of an uninterrupted period of not less than fifteen (15) minutes (entitled to spend it away from his workstation, if the employee has one) where the working day is longer than six (6) hours. Any longer working day entitles the employee to a longer rest break;
- Weekly rest period: every worker shall be entitled to a minimum uninterrupted weekly rest period of twenty-four (24) hours in addition to the daily rest period of eleven (11) hours referred to above, for each seven (7) day period during which the worker works for the employer. The weekly rest period may be calculated over a fourteen (14) day reference period and in such cases, a worker shall be entitled to either:
- Two (2) uninterrupted rest periods, each of not less than twenty-four (24) hours each, and each led by a daily rest period in every fourteen (14) day period for when the worker works for the employer, or
- One (1) uninterrupted rest period of not less than forty-eight (48) hours, led by a daily rest period, in each such fourteen (14) day period, for when the worker works for the employer;
- Maximum average weekly working time: the average working time for each seven (7) day period of an employee, including overtime, shall not exceed forty-eight (48) hours, unless otherwise agreed in writing between the employee and employer. If consent is given by the employee, the employer has to ensure that the employee is given the daily rest and weekly rest periods due as established by law. The average weekly working time shall be calculated from the total number of hours worked in a period of seventeen (17) weeks, unless specific legislation stipulates otherwise;
- Length of night work: a night worker’s normal hours of work shall not exceed an average of eight (8) hours in any twenty-four (24) hour period. “Night work” is defined as work carried out between ten (10) p.m. of any one day and six (6) a.m. of the next day.
What is considered On-call Working?
On-call working has been defined in the various rulings of the Court of Justice of the European Union (CJEU) when interpreting the Working Time Directive, as the Directive itself does not define it. The Court has ruled that in the logic of the Directive, working time is placed in opposition to rest periods, the two being mutually exclusive, and that the Directive does not provide for any intermediate category between working time and rest periods.
The first rulings of the CJEU concerned the healthcare sector (Case C-303/98). The CJEU held that the time when doctors are on call in a hospital is counted in its entirety as working time, and where appropriate, as overtime – if they are required to be present at the health centre. This judgment states that, if doctors “must merely be contactable at all times when on call, only time linked to the actual provision of primary health care services must be regarded as working time”. If they must merely be contactable at all times when on call, only time linked to the actual provision of primary care services must be regarded as working time. This was also ruled on in the case of Jaeger (Case C-151/02), which stressed that the Directive precludes legislation that classifies an employee’s periods of inactivity in the context of such on-call duty as rest periods. In a further judgment, Pfeiffer and others (Cases C-397/01 to C-403/01), the Court confirmed that on-call work must be regarded as working time and that exemptions from the scope of the Directive must be interpreted very carefully.
In 2018, the Court delivered an important ruling in a case concerning voluntary fire officers in that of Ville de Nivelles vs Rudy Matzak. The Court emphasised that “the obligation to remain physically present at the place determined by the employer and the geographical and temporal constraints resulting from the requirement to reach his place of work within eight (8) minutes are such as to objectively limit the opportunities which a worker … has to devote himself to his personal and social interests.” In the light of these constraints, the fireman’s situation “differs from that of a worker who, during his stand-by duty, must simply be at his employer’s disposal inasmuch as it must be possible to contact him”. The time spent on stand-by at home for this category of employees must therefore be classified as working time.
Conditions to satisfy On-call Duty
Through this judgement, the Court clarifies that, according to EU legislation, the employee must receive full remuneration for the entire period in which he is on call, at the disposal of the employer (this being considered normal “working time”) if the following conditions are cumulatively met:
- The employee cannot freely choose the place where he can stay during stand-by periods, due to the specificity of his work, being obliged for instance to stay at home;
- The employee must be able to reach his place of work within a short period of time, and be physically present to perform the task.
If both conditions are met, the Court considers that the employee has multiple constraints and limitations during his stand-by period, not being able to pursue his own interests. Therefore, in such a case, he must be fully remunerated for the entire ‘on call’ period, this being considered working time.
In 2021, the Court issued two rulings delivering precise interpretations of the law for the purpose of classifying time spent on stand-by duty. The Court invited the application of a case-by-case analysis.
- If the worker is, on average, frequently called upon to provide services during stand-by periods and, as a general rule, those services are not of a short duration, the entirety of those periods constitutes, in principle, ‘working time’.
- If the worker is only rarely called upon to act during stand-by periods, these can be regarded as ‘rest periods’, but the situation is different if the impact of the time limit imposed on the worker to return to his or her professional activities is such that “it suffices to constrain, objectively and very significantly, the ability that he or she has freely to manage, during those periods, the time during which his or her professional services are not required”.