Newsletter Employment Law Smart News 25 Nov 2021

On-call duty and business trips – employer’s duty to pay?

The Court of Justice of the European Union (CJEU) recently clarified in its judgment of 9.9.2021 – C-107/19 that rest periods, for instance in the context of on-call duties, are to be classified as working time subject to remuneration. The case concerned a fireman who was allowed to stay in the company canteen during on-call duty but had to be ready for an operation within 2 minutes if necessary. Such on-call times were only credited as working time and paid if a fire brigade operation actually took place.

Such provision is not compatible with European Union law. If the employee has to be present at certain places specified by the employer during on-call times in order to be able to perform his service immediately, if necessary, this is working time to be remunerated. The reason for this is that even if the employee is not called to work, he is less free to dispose of his time than if he is in his family and social environment.

It may be otherwise if employees are only required to be reachable during such rest periods but are essentially free to organise the time and devote it to their personal and social interests.

This corresponds to the relevant case law of the German Federal Labour Court (BAG, judgment of 29.6.2016 – 5 AZR 716/15). However, the BAG has specified that the remuneration during such on-call times can be regulated differently. It is only necessary to ensure that such on-call times are remunerated with the minimum wage.

According to the Federal Labour Court, these principles also apply to travel time on official business (Federal Labour Court, judgment of 17.10.2018 – 5 AZR 553/17).

In this respect, employers have a wide margin of regulation as to how they want to regulate remuneration, especially if the salary of the employees concerned is already far above the minimum wage. Compliance with the minimum wage is always based on the total remuneration per month.

If the basic remuneration is high, only less remunerated working hours in the context of on-call duty or business trips will regularly not lead to the minimum wage not being reached.

However, it is important that such divergent remuneration is clearly regulated. Otherwise, corresponding rest or travel times are generally to be remunerated as normal working time or compensated by time off (Federal Labour Court, judgment of 26.6.2019 – 5 AZR 452/18).