Mr Matzak is a retained firefighter in Belgium. He is required on a rota basis to be available on stand-by duty, for one week out of every four, during the evenings and at the weekend. Time spent on stand-by duty is unpaid, Mr Matzak is only paid in respect of time when he is on active service.
When on stand-by duty, Mr Matzak must remain contactable and report to the fire station as soon as possible and in any event within no more than eight minutes.
Mr Matzak brought proceedings against his employer, arguing that he is entitled to be paid for the time spent on stand-by duty as he had only received pay for active service.
The definition of 'working time' should not be interpreted as automatically extending to workers who are required to be on stand-by duty. It is necessary to consider the quality of the time that the worker may enjoy when on stand-by duty, for example, his ability to devote himself to his own interests and family.
The overriding importance in this case was the quality of the time spent by Mr Matzak on stand-by duty, rather than the precise degree of required proximity to his place of work. The AG distinguished this case from a number of previous decisions, in which it was held that the deciding factor in determining what is and is not working time was the "requirement to be present at a place determined by the employer to provide the appropriate services immediately".
The AG concluded that it is a matter for the member states to decide, on the individual facts of a particular case, whether or not time spent on stand-by duty is to be classified as working time.
The Working Time Regulations 1998 implement the Working Time Directive. The definition of 'working time' in the Working Time Regulations 1998 is relevant to rest periods and rest breaks as distinct from pay which is governed by the National Minimum Wage Regulations.
The ECJ must now decide whether to follow the AG's opinion or form a different view. We will keep you updated about developments.