2023/11 Interpretations from the Labour Court concerning stand-by time in different firefighter duties (FI)

Janne Nurminen

Janne Nurminen is counsel at Roschier, Attorneys Ltd.

2023/11 Interpretations from the Labour Court concerning stand-by time in different firefighter duties (FI)

The Finnish Labour Court has held in an interlocutory judgment that whether stand-by time is considered working time depends on the limiting effect of stand-by duty on the use of leisure time. Firefighters who worked as officer firefighters were able to spend their time relatively freely during stand-by periods. For officer firefighters, the Labour Court held that their stand-by time was not to be considered as working time in its entirety. The Labour Court came to the opposite conclusion regarding firefighters working as unit leaders. These firefighters were in practice supposed to stay at the fire station in order for them to comply with the required response time, leading to the conclusion that their stand-by time was considered working time in its entirety.

Summary

The Finnish Labour Court has held in an interlocutory judgment that whether stand-by time is considered working time depends on the limiting effect of stand-by duty on the use of leisure time. Firefighters who worked as officer firefighters were able to spend their time relatively freely during stand-by periods. For officer firefighters, the Labour Court held that their stand-by time was not to be considered as working time in its entirety. The Labour Court came to the opposite conclusion regarding firefighters working as unit leaders. These firefighters were in practice supposed to stay at the fire station in order for them to comply with the required response time, leading to the conclusion that their stand-by time was considered working time in its entirety.

Legal background

According to Section 4 of the General Collective Bargaining Agreement for Municipal Personnel Authorities for 2012-2014 and 2014-2016 (CBA), working time is the time spent on work and the time when the employee is obligated to be at the workplace at the employer’s disposal. The CBA also states in Section 5 that being on stand-by means that an employee must be available to be called to work when necessary. Stand-by time is not considered as working time. The length of the stand-by time period and the frequency of being on stand-by duty must not excessively hinder the employee’s use of leisure time.According to the CBA, for every hour that the employee is on stand-by the employee shall be paid compensation corresponding to 20-30% of their hourly salary or be given a corresponding amount of time off.

Facts

The work at the fire stations was organized so that the firefighters had regular working hours from Monday to Friday between 8 am and 4 pm and at other times, for example during nights and weekends, the capacity to provide rescue services was guaranteed by keeping part of the personnel on stand-by. All firefighters were obliged to perform stand-by duty.The stand-by officers were usually able to spend stand-by time at their home, where they also kept the control unit vehicle which was in their use. In practice, the control unit vehicle needed to be connected to a charging point while parked which limited the officers’ freedom to move around with the vehicle during the stand-by time. When using the control unit vehicle during a stand-by period, firefighters had to ensure that the vehicle always had sufficient power in case of an alarm. The officer firefighters were supposed to respond to an alarm within five minutes, after which they started transition to the scene of fire.The unit leader firefighters were required to stay within such distance from the fire station that they would be able to take off with the first unit that left from the fire station within five minutes after the alarm. The time limit to be ready for work duties in case of an alarm in practice required stand-by unit leaders to stay at the fire station or in its immediate vicinity. The only possibility for unit leaders to spend stand-by time at home was if the firefighter happened to live in the immediate vicinity of the fire station.Formally, both officers and unit leaders were allowed to spend their time freely during stand-by time.

Judgment

According to the CBA, the period of time when an employee is obligated to be available for the employer is considered to be working time. The Labour Court stated that the Working Time Directive (2003/88/EC) sets the minimum requirements for what must at least be considered as working time.When assessing whether stand-by time is working time, the required time limit for an employee to react must be taken into account. If the time limit is reasonable and enables spending time as leisure time, the stand-by time should not be considered as working time. The Labour Court’s previous case law gives confirmation to the interpretation. The Labour Court has stated (e.g., TT 2020:31, TT 2021:33, TT 2021:34, TT 2021:50-52 and TT 2022:22) that even if an employee can stay at home during a stand-by period the time should be working time if the response time is so short that it limits the employee’s opportunities to make plans and spend their time as leisure time.The Labour Court referred to the CJEU’s judgment C-344/19 D.J. – v – Radiotelevizija Slovenija in which the CJEU affirmed that a period of stand-by time during which the employee is required only to be contactable by telephone and able to return to his or her workplace, if necessary, does not constitute working time within the meaning of Article 2(1) of Directive 2003/88/EC, unless the stand-by obligation entails that the constraints imposed during that period are such as to affect, objectively and very significantly, the ability the employee has to freely manage the time when their professional services are not required and to devote that time to their own interests. The Labour Court held that unit leader firefighters had to stay at a fire station in order to comply with the required response time. This had forced the employees to be apart from their families and they had less opportunities to focus on leisure time activities.The Labour Court also referred to the CJEU’s judgment C-580/19 R.J. – v – Stadt Offenbach am Main in which the CJEU concluded that stand-by time, during which an employee has to choose their whereabouts in such a way that, if they are alerted, they can reach the town boundary with their uniform and vehicle, using their traffic regulation privileges and rights of priority, within 20 minutes, constitutes working time. The Labour Court noted that in the case at hand, the response time for all firefighters was five minutes. The key difference was that officer firefighters needed to react to an alarm in about five minutes from the location where they were at that time and start the transition to the scene of the fire, whereas the unit leader firefighters were required to take off within five minutes with the first unit that left the fire station.The Labour Court then moved on to evaluate the constraints imposed by the stand-by duty on the firefighters’ ability to manage their leisure time. The stand-by time of the officer firefighters was not considered as so restrictive as to constitute working time. The charging requirement of the control unit vehicle during the stand-by time increased the commitment to work during stand-by time and limited the freedom to manage leisure time. The Labour Court stated that the officer firefighters were able to spend stand-by time at their home and drive around quite freely. In addition, the realized response times for stand-by officer firefighters were not monitored or sanctioned. Based on an overall assessment, the Labour Court held that the stand-by time for officer firefighters did not constitute working time.The Labour Court found that during the unit leader firefighters’ stand-by time, the unit leaders had to stay within a short distance from the fire station in order to be able to take off with the first unit that left the station within five minutes of the alarm. The Labour Court reasoned that the required response time significantly affected what the unit leader firefighters were able to do during the stand-by time even in the situation where the firefighters lived near the fire station. The required response time was short, and the work duties started almost immediately after an alarm. These obligations imposed on the unit leaders during the stand-by time were considered by the Labour Court to significantly affect the unit leader firefighters’ ability to manage their time freely during stand-by time and use it for their own purposes at their discretion. Therefore, the Labour Court concluded that the unit leader firefighters stand-by time was considered to be working time.The main difference between unit leader firefighters stand-by duties and officer firefighters stand-by duties was that unit leaders were in practice required to stay at the fire station during stand-by time. The unit leader stand-by firefighters needed to be at the fire station within five minutes after the alarm, so they did not have a genuine opportunity to make plans for the stand-by time or travel too far from the station. The officer firefighters could spend time with their families and move around with the control unit vehicle. They also had to respond to an alarm within five minutes, but they were not obligated to be at a certain location at that short notice.

Commentary

The Labour Court’s judgment is in line with earlier CJEU case law concerning stand-by time in the context of the Working Time Directive (e.g., C-344/19 D.J. – v – Radiotelevizija Slovenija; C-580/19 R.J. – v – Stadt Offenbach am Main) as well as with previous judgments of the Labour Court (inter alia TT 2020:31, TT 2021:33 and TT 2021:50) regarding stand-by time. The case further confirms the interpretation clause that stand-by time should be considered working time when stand-by periods affect, objectively and very significantly, the ability the employee has to freely manage the time when professional services are not required and to devote that time to their own interests.The Labour Court’s reasoning led the Court to rule differently in terms of the two different firefighter positions. The decisive difference was the fact that the officer firefighters were able to stay at home and move around with a car, although somewhat constrained during their stand-by time compared to the unit leaders’ engagement to work during their stand-by time where they were in practice not able to leave the fire station in order to comply with the required response time.It is easy to agree with the Labour Court that the response time requirements during stand-by time entailed such restrictions on the unit leader firefighters that they were not able to manage their time freely during the time when their professional services were not required. It is also easy to agree with the Labour Court that the restrictions imposed on the officer firefighters were more lenient. However, the outcome that the officer firefighters’ stand-by periods corresponded to the definition of stand-by time within the meaning of Article 2(1) of Directive 2003/88/EC seems to be a borderline case.The question whether the firefighters’ stand-by time should be considered to be working time has been topical in Finland. The Labour Court has given many judgments on the subject recently (e.g., TT 2020:31, TT 2021:33, TT 2021:34, TT 2021:50-52 and TT 2022:22), in which the Court has stated in every judgment, at least partially, that stand-by time should be working time. In these previous cases, the Labour Court has systematically stated that for firefighters who need to be at a certain location leisure time is affected in such a manner that the stand-by time is working time. When firefighters are able to spend stand-by time much more freely and they have not had a location where they are required to be within a strict time limit, stand-by time is not working time.

Comments from other jurisdictions

Greece (Effie Mitsopoulou, lawspace): This is a very interesting case with direct reference to the ECJ’s case law (C-344/19 D.J. – v – Radiotelevizija Slovenija; C-580/19 R.J. – v – Stadt Offenbach am Main – even though we would expect to see as well reference to Case C-214/20 M.G. – v – Dublin City Council) where the distinction on which the Finnish Court based its reasoning was between officer firefighters and unit leader firefighters.As we already mentioned in our comment under EELC 2022/25, Greek legislation does not regulate expressly stand-by time but it is the case law and in particular the Supreme Court which has proceeded to two essential distinctions:

the so-called genuine stand-by period where the employee is obliged to be in a specific place and immediately available if called upon to offer their services and where the mandatory provisions of labour law apply on minimum wages, overtime, night work and work during Sundays, holidays or rest periods; and
the so-called non-genuine or simple stand-by period where the employee may be at another place, at rest, with only a partial limitation of their freedom and where only the agreed wages are due to the employ‍ee.

In the case at hand the Greek Supreme Court would have ruled in a similar way as the Finnish Labour Court considering the officer firefighters as having a duty of non-genuine/simple stand-by and the unit leader firefighters as having a duty of genuine stand-by.The above approach of the Greek Supreme Court, accepting thus that the simple stand-by period falls outside of the daily and weekly working time provisions, as well as the mandatory provisions on night work, overtime, minimum wage etc. has been heavily criticized by the legal theory. Mainly as it results in a more favourable treatment to those employees offered the so-called genuine stand-by, but also as being against the spirit of Directive 2003/88/EC on working time.

Italy (Ornella Patané, Toffoletto De Luca Tamajo): In Italy, a court would have reached the same decision. Indeed, the Italian Supreme Court has held that where the employee is obliged to be on stand-by undertaking to intervene within a period of time determined by the employer, this period of time is considered to be working time only if the obligation imposed on the employee, taking into account the circumstances of the concrete case, is such as to significantly and objectively restrict the employee’s freedom to rest and devote themself freely to extra-work activities (Italian Court no. 2021/30301; Italian Court no. 2021/30587). Therefore, even in Italy the notion of ‘stand-by’ is still very flexible and anchored to the concrete case, functional to the primary objective of organizing working hours and rest times in a way that protects the health and safety of employees.In other words, the mandatory obligations to provide employees with certain rest times end up conditioning the breadth of the definition of working time, as there are no intermediate definitions between working time and rest.

Subject: Working Time Parties: Sosiaali- ja terveysalan neuvottelujärjestö Sote ry – v – Kunta- ja hyvinvointialuetyönantajat KT; Oulun kaupunki Court: Työtuomioistuin (The Finnish Labour Court) Date: 7 September 2022 Case number: TT 2022:54 Internet publication: https://www.tyotuomioistuin.fi/fi/index/ratkaisut/tt202254.html