Judgment;Abstract — ECLI:EU:C:2021:909
Date: 2021-11-11
Language of the case: English
Court formation: Fifth Chamber
Subject matter: Approximation of laws;Social Policy;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Ireland

The Labour Court 
Lansdowne House 
Lansdowne Road
Ballsbridge 
Dublin 4 
D04 A3A8
An ChOirt Oibreachais 
Aras LansdOn 
BOthar LansdOn 
Droichead na Dothra 
Baile Atha Cliath 4 
D04 A3A8
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Fax: (01)613 6667
Email: info@labourcourt.ie 
Website: www.labourcourt.ie
IN THE MATTER OF A REFERENCE TO THE COURT OF JUSTICE OF THE EUROPEAN UNION 
PURSUANT TO ARTICLE 267 OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN 
UNION
AND IN THE MATTER OF THE ORGANISATION OF WORKING TIME ACT 1997
AND IN THE MATTER OF COUNCIL DIRECTIVE 2003/88/EC OF THE EUROPEAN PARLIAMENT 
AND OF THE COUNCIL of 4th NOVEMBER 2003 CONCERNING CERTAIN ASPECTS OF THE 
ORGANISATION OF WORKING TIME.
PARTIES:
MG COMPLAINANT
AND
DUBLIN CITY COUNCIL RESPONDENT
DIVISION OF THE COURT
Mr Kevin Foley: (Chairman)
Ms Sylvia Doyle: (Employer Member)
Mr Andrew McCarthy: (Worker Member) 'A Q5.
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ORDER FOR REFERENCE
1. This reference arises from an appeal by the Complainant against the decision of an 
Adjudication Officer of the Workplace Relations Commission in his claim against the 
Respondent listed in the title of these proceedings. The Complainant contends that 
the time spent by him on-call constituted working time within the meaning of the 
section 2 of the Organisation of Working Time Act 1997 and Article 2(1) of Council 
Directive 2003/ 88/EC. The claim was dismissed by an Adjudication Officer of the 
Workplace Relations Commission.
2. The Workplace Relations Commission is a body established by law with first instance 
jurisdiction to hear and determine complaints where breaches of the Organisation of 
Working Time Act are alleged.
3. The Complainant appealed the decision of the Adjudication Officer to the Labour 
Court which is the national Court having jurisdiction to hear and determine appeals 
from the Workplace Relations Commission in employment related appeals, including 
in matters relating to the Organisation of Working Time Act 1997.
Facts Giving Rise to the Main Proceedings
4. The Complainant is a retained Firefighter employed by the Respondent. He has been 
in the Respondent's employment since September 2005. A retained Firefighter is a 
part-time Firefighter that is trained and retained by the Fire Station to which he is 
attached to respond to an emergency call when alerted. When a call is received for 
the fire brigade, the alerters for a particular brigade are activated and the 
firefighters, who each carry an alerter, respond to the fire station immediately. The 
firefighters are then required to make their way to the station without delay within 
10 minutes of being alerted. A retained Firefighter, such as the Complainant, is paid 
a basic retainer in the region of €10,000 per annum which is paid monthly. The 
retainer is to compensate the retained Firefighter from being on stand-by. In 
addition to the retainer, a retained Firefighter such as the Complainant is paid an 
agreed amount when required to attend the fire station. The Complainant is 
retained on a 24 hours basis (excluding periods of annual leave and periods when he 
notifies his employer in advance of his unavailability and the employer agrees to 
this) to respond to emergencies when alerted by means of a bleeper by the 
employer. The Complainant is required to respond to the employer bleeper within 5 
minutes. The maximum turnout time is 10 minutes. The Complainant is required to 
attend 85% of normal training practices and 75% of fires.
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5. The Complainant is allowed to engage in other work provided he does not work in 
excess of 48 hours per week averaged over a four, six- or twelve-month period 
depending on his category of employment. The Complainant works as a taxi driver. It 
is a requirement of his contract of employment with the fire station that the 
Complainant provide verification from his second employer that he will be released 
to attend incidents as required. It is a further requirement of his contract of 
employment that the Complainant is precluded from taking any other work during 
his (active)* hours of work as a retained fire fighter. The Complainant is required to 
live and work within a reasonable distance of the employer fire station. A reasonable 
distance is as per turn-out time of the fire station in which they are employed. A 
change of residence or place of employment which would take them an 
unreasonable distance from the station will mean automatic termination of their 
service. On-call firefighters who respond within the turnout time limit will receive 
full pay for the incident in all circumstances. Any firefighter who fails to respond 
within the desirable turnout time limit but responds within the maximum 
attendance time set by the Chief Fire Officer, is paid one-hour flat time and will be at 
the station unless required at an incident.
6. The employment is expressed to be part-time. It is a condition of employment that 
retained firefighters are available as required.
Submissions of the Parties in the Main Proceedings 
The Complainant
7. The Complainant's core submission is that that the time spend on standby/on-call 
amounts to working time. The Complainant is effectively on-call 24 hours of the day, 
7 days of the week (absent annual and other leave periods such as sick leave and 
where he notifies his employer in advance of his unavailability and the employer 
agrees to this), because of the requirement that he must presented himself at the 
fire station within the desirable 5- minute or maximum 10 minute turnout time of 
being alerted. Because of this, the Complainant argues that the Respondent is in 
breach of sections 11-17 and sections 20 and 23 of the Organisation of Working Time 
Act 1997 concerning inter alia daily and weekly rest periods and working in excess of 
a 48-hour week. The Complainant says that due to the restriction of being on- 
call/stand-by he is unable to commit to family, taxi work or social arrangements that 
could impact on his ability to be available if alerted. Failure to respond to the alerter 
can lead to disciplinary action and potential dismissal. The Organisation of Working 
Time Act 1997 transposed Directive 93/104/EC of the Council of the European 
Communities concerning certain aspects of the organisation of working time which 
has since been amended and then consolidated into Directive 2003/88/EC.
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8. It is further submitted on behalf of the Complainant that by applying the judgement 
of the Court of Justice of the European Union in Ville de Nivelles and Matzak (C- 
518/15) and in particular its response to Ruling 4 that time spend by him on-call 
amounts to working time.
* Active hours of work are defined as hours spent actually attending fires or at the 
station engaged in training / drills etc. The Complainant accrued 221 hours and 17 
minutes of active hours in 2019
The Respondent
9. The Respondent submits that the requirement for the Complainant to be available 
within a specified distance of the fire station so he can respond to an alerter and 
mobilise within a specified period of time does not constitute working time. During 
this time the Complainant can and is employed and free to engage in other activities. 
The Complainant is not required to remain in any particular place when on stand-by. 
The only requirement is that when alerted, the Complainant comply with the turn­
out period. There is a desirable turn-out period of 5 minutes and a maximum turn­
out period of 10 minutes. This reflects the fact that retained firefighters will make 
every effort to respond to their alerter but may be delayed for reasons outside their 
control. Any firefighter who arrives after ten minutes is not paid. A firefighter, if 
alerted, is required to attend the fire station. The station officer will then decide 
how many crew members are required for the incident. Normally this is limited to 
five. The Complainant will then be assigned or not. If the Complainant is not 
assigned, he is free to go and resume his own activities. In 2019 the Complainant 
attended the station for 64% of alerts and was assigned for 33% of alerts. There was 
a total of 648 alerts in 2019. The Complainant's maximum weekly working period in 
2019 for which he was paid an allowance was 26 hours with a weekly average of 4.61 
hours.
National Law
10. The Organisation of Working Time Act 1997 ("the 1997 Act") gives effect in national 
law to Council Directive 93/104/EC, since repealed and replaced by Directive 
2003/88/EC of the European Parliament and of the Council of 4 November 2003 
concerning certain aspects of the organisation of working time.
11. As is settled law, thel997 Act must be interpreted and applied, as far as possible, to 
achieve the purpose pursued by the Directive.
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12. Section 2(1) of the 1997 Act provides that "working time" means any time that the 
employee is
(a) at his or her place of work or at his or her employer's disposal, and
(b) carrying out or performing the activities or duties of his or her work
(c) and
(d) "work" shall be construed accordingly.
The text of the Organisation of Working Time Act, in its amended form may be obtained
at: http://revisedacts.lawreform.ie/eli/1997/act/20/front/revised/en/html
Relevant Provisions of Union Law
13. The relevant provisions of Union law are contained in Article 2(1) of Directive 
2003/88/EC. Article 2(1) provides as follows: "working time" means any period 
during which the worker is working, at the employer's disposal and carrying out his 
activities and duties, in accordance with national laws and/or practice.
14. There is no claim of a breach of the 1997 Act in respect of the hours the Complainant 
spends actually called out. The case is based on the proposition that 'on call' time is 
'working time' within the meaning of the Act and the Directive having regard to the 
interpretation of Article 2 of Directive 2003 /88/EC set out in Ruling 4 of the CJEU in
Case C-518/15 - Ville de Nivelles (Belgium) and Mr Rudy Matzak.
15. On that basis the Complainant contends that he works 24 hours a day for 365 days 
per year absent periods of annual and other leave and periods when he notifies his 
employer in advance of his unavailability in breach of the Act at Section 11, 12,13, 
14, 15, 16, 17, 20, 21.
16. The key matter of contention is the meaning of 'working time'. The Directive carries 
at Article 2 a definition of 'working time' and a definition of 'rest periods' and it is 
the interpretation of those definitions which underpin this dispute.
17. Ruling 4 of the CJEU is as follows: Article 2 of the Directive 2003/88 must be 
interpreted as meaning that stand by time which a worker spends at home with the 
duty to respond to calls from his employer within 8 minutes, very significantly 
restricting the opportunities for other activities, must be regarded as 'working time'.
Views of the Referring Court
18. The decision of the CJEU, at Ruling 4 answers the question as regards a worker on 
standby at a place nominated by the employer, in the case of Matzak, his home. The 
CJEU makes specific reference to the difference in terms of restriction placed upon a 
worker by a requirement to be on standby at a place directed by the employer. The
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CJEU also refers to the restriction imposed by the requirement to be within 8 
minutes of the workplace when called.
19. Features of the complainant's obligations which distinguish the claimant's 'on call' 
arrangement from that of Matzak are that he was not required to be at any 
particular location by the employer and was required only to be able to respond 
within the required turn-out time when alerted.
20. The Complainant in Matzak was unable to engage in work or economic activity while 
'on call' while no such restriction applies to the Complainant. The Complainant is 
free to and does engage in economic activity on his own account while 'on call' as a 
taxi driver. He is free to be employed by a third party or to be in business on his own 
account while 'on call'. It is common case that during the 'on call' periods which he 
claims are 'working time' the Complainant could and did engage in employment such 
that another employer would or could carry obligation under the 1997 Act in respect 
of the organisation of his working time.
Outcome
21. For the reasons set out herein the Court has concluded that it requires the assistance 
of the Court of Justice of the European Union on the interpretation of Union Law 
before it can give its determination in this case. Accordingly, the Court has decided 
to stay the proceedings and refer the following questions to the Court of Justice for a 
preliminary'ruling pursuant to Article 267 TFEU:
Questions
1. Must Article 2 of the Directive be interpreted to mean that a worker, when 'on call' 
at a location or locations of his choosing without requirement at any time while on- 
call to notify the employer of his or her location, but subject only to the requirement 
that the worker be able to respond to a 'call in' within a desirable turn-out period of 
5 minutes and a maximum turn-out period of 10 minutes, is engaged in working time 
while on-call?
2. If the answer to question 1 is in the affirmative, can a worker who is not restricted 
other than by a requirement to respond to a call- in within a desirable turn-out 
period of 5 minutes and a maximum turn-out period of 10 minutes, and who is able, 
without restriction, to be employed contemporaneously by another employer or to 
engage in business on his own account while 'on-call', be regarded as engaged in 
'working time' on behalf of the employer in respect of which employment he or she 
is 'on call'?
3. If the answer to the second question is in the affirmative, if the worker actually is 
employed by a second employer while 'on call', subject only to a requirement that 
the second employer must release the worker when called in by the first employer, 
mean that the time spent by the worker 'on call' and working for the second 
employer be regarded as working time in terms of his relationship with the first 
employer?
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4. If the answer to the third question is in the affirmative, does a worker who works for 
a second employer while on call to his first employer accrue working time in relation 
to the first and second employer contemporaneously?
By Order of the Labour Court
Kevin Foley
Chairman
Dated this of May 2020
CORRESPONDENCE IN RELATION TO THIS MATTER SHOULD BE ADDRRESSED TO: Jacqui 
Kelly, Court Registrar at Jacqueline.kelly(S>labourcourt.ie
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