Working time: “on-call” versus “stand-by”

In an exceptional short ruling, the Belgian Court of Cassation (Supreme Court) seems to have reversed its own judgment of 30 January 1984 and appears, finally, to have adopted the Court of Justice of the European Union’s definition of “working time”.

Under Belgian law, “working time” is defined by Article 19 of the Belgian Employment Act of 16 March 1971 as “the time during which the employee is at the disposal of the employer”. However, Article 2.1 of the European Working Time Directive 2003/88 defines working time as: “any period during which the worker is working, at the employer's disposal and carrying out his/her activity or duties in accordance with national laws and/or practice”. Although not expressly stated in the definition itself, the majority of legal scholars have insisted that the first part of the latter definition (i.e."working”) must be interpreted as “being present at the work place”, arguing that any other interpretation would result in the first part (“working”) making the third part (“carrying out his/her activity or duty”) superfluous.

The Court of Cassation now seems to agree with this. Its recent judgment states: “Periods of stand-by, during which the employee must be able to answer a possible call of the employer, but during which the employee must not be physically present at the work place, is not considered “working time” within the meaning of Article 19 of the Employment Act. The fact that the mobility of the employee is limited because he/she must remain within a certain radius of the working place in order to be able to respond on time to the call of the employer, is irrelevant.”

In this ruling, a clear distinction is made by the Court of Cassation between “stand-by” periods during which the employee must be physically present at the work place and “stand-by” periods during which the employee must not be physically present at the work place. Only the first category can be considered as “working time”.