Austria: On-call duty as working time?

 

According to Art. 2 1 of Directive 2003/88/EC, on-call duty (ie standby time during which an employee must only be available by telephone and able to return to his place of work if necessary, whereby this also includes the fundamental possibility has to stay in a (service) accommodation made available by the employer, but is not obliged to stay there) in full working hours only if the overall consideration of all circumstances to which the consequences of such a time specification and, if applicable, the average frequency of assignments during the period of on-call duty, shows that the restrictions imposed on him during the period of on-call duty limit his ability to organize things freely and to devote them to one's own interests, is objectively very significantly impaired.

The "on-call time" is therefore either "working time" or "rest time" within the scope of Directive 2003/88/EC. Organizational difficulties for the employee that do not result from such restrictions, but are the result of natural circumstances or are subject to the employee's free decision, cannot be taken into account. This includes, for example, the free choice of a (remote) place of residence, few leisure opportunities, official accommodation at the workplace and thus the impossibility of leaving the place of work for this reason alone, etc.

In its decision Case C-518/15, the ECJ stated, among other things, that only the obligation to stay personally at the place specified by the employer and the restriction resulting from the geographical and temporal perspective from the requirement to be within of 8 minutes to arrive at the workplace limits the employee's ability to attend to personal and social interests. These requirements differ significantly from a "normal" on-call service, in which employees only have to be available for their employer. A restrictive on-call duty of this kind is therefore to be qualified as working time.

On-call duty must be expressly agreed with the individual employee and, unless otherwise agreed in the collective agreement, the works council is not authorized to conclude any company agreement for the introduction of on-call duty or its allocation. Since the employee is at least restricted in his free time during the on-call duty, it cannot be assumed that the work is free of charge, but a lower payment – ​​up to and including free of charge – than for (actual) work performance can be agreed. If no regulation is made regarding remuneration and a collective agreement that may be applicable does not provide for anything, appropriate remuneration within the meaning of § 1152 ABGB is deemed to have been agreed (OGH January 25th, 2019, 8 ObA 61/18f).

In summary, it can be stated that on-call duty only fulfills the definition of working time and is therefore to be remunerated as such only if the employee is objectively very significantly impaired during his on-call duty, so that he can no longer pursue his own interests.

 

For further information, please contact:

Georg Karlbauer , Lawyer

Zumtobel & Kronberger, Salzburg

e: karlbauer@eulaw.at

t: +43 662 62 45 00

 

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