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Often associated with public sector emergency services, on-call work is being increasingly used by private sector employers to meet their business needs and ensure that unexpected problems or requests are immediately resolved.
It is important for employers to be able to correctly allocate on-call work as either working time or rest time to ensure they respect maximum working time limits, minimum rest periods and overtime compensation, and thus avoid possible disputes with employees or sanctions from the authorities.
On-call work is not regulated at the European or national level. However, a definition has developed over time, in the sense that it is the period during which the employee remains at the employer's disposal to perform work at the employer's request.
The essence of on-call work is that the employee is in a "waiting" period and can be contacted at any time by the employer to carry out their duties. During the "waiting" period, the employee has the right to attend to their own affairs. Depending on the nature of the work activity, the employee may not have to be present at a place established by the employer but may have to be able to arrive there within a certain time.
Therefore, it is not compulsory for the employer to require the employee to actually perform work when they are on-call.
The question of whether on-call work constitutes working time is not a new topic at the European level. The European Court of Justice (ECJ) has tried over the years to settle this issue. The ECJ has ruled that on-call work is working time if the employee is not actually working, if the employee's ability to manage their time is significantly impaired. A determining criterion for the latter classification is the extent to which the employee must be present at the place established by the employer to perform their duties.
In recent case law, ECJ has nuanced this qualification by setting additional criteria for classifying on-call work as working time and thus adapting the interpretation of this concept of work to the increasingly diverse situations in practice.
According to this case law, to determine whether or not on-call work constitutes working time, a general analysis should be carried out that relates to all the circumstances of the case, in particular the constraints that the employee might have in such a situation. Thus, to the extent that the constraints imposed on the employee objectively and significantly affect the employee's ability to freely manage the time during which the employer does not require them to actually perform work and to devote this time to their own interests, on-call work should be regarded as working time.
To carry out such an analysis, the ECJ highlights certain objective factors, such as the duration and frequency of on-call work, the time required for the employee to arrive at the place determined by the employer, the equipment required by the employee, etc. According to the ECJ, this analysis does not have to take into account factors relating to the employee.
In the absence of specific regulations regarding on-call work, Romanian courts of law have analysed this type of work by reference to the general legal provisions on working time and the ECJ case law.
Thus, national courts of law have assessed on-call work in principle according to two cumulative criteria, namely the constraints imposed on the employee and the way in which the provision of this type of work is regulated by the employer.
As a result of this assessment, it was established that on-call work should be regarded as working time and compensated accordingly if (i) the employee must be permanently at the employer's disposal and, if applicable, perform the tasks set out in the job description, (ii) the individual or collective employment agreement does not include specific clauses relating to on-call work, actual working time and the method of remuneration, and (iii) the on-call work is regulated only in the job description, which includes only the job duties and not the duration of the work or its distribution.
Pending a legislative framework and in order to avoid possible legal claims from employees or sanctions from authorities, employers should objectively analyse the situations in which their employees carry out on-call work, in particular with regard to the constraints and limitations to which employees are subject during these periods.
Thus, employers should implement detailed internal policies on on-call work and include in individual or collective employment agreements specific clauses on the manner in which and under what conditions on-call work will be carried out. In drafting such documents, employers should take into account both the constraints imposed on employees and the risks that long or frequent periods of on-call work may pose to the employee from an occupational health and safety perspective.
author: Andrada Popescu