Non-located guards are only work time if the employee is called

They do not count as work hours for the purposes of breaks

The Court determines that being accessible does not prevent rest

The National Court has recently handed down a ruling (text here) in which it rules that on-call periods in which the employee's intervention is not required should not be counted as actual work, nor will they be taken into account for the purposes of calculating mandatory breaks and are not subject to remuneration as overtime if the employer establishes the corresponding allowances to compensate them.

The ruling thus resolves the collective dispute raised by the union representatives of a digital services company. In their complaint, they requested that it be declared that the time dedicated to home guard duty is effective work, for the purposes of respecting the limits of the daily shift and weekly rest and between shifts.

Likewise, they requested the annulment of the clause in the Availability Agreement that makes the forced secondment of personnel possible. According to what they reported, this meant carrying out overtime hours above the legal limits. Finally, they rejected the stipulated single payment formula for indiscriminately bringing together the different types of guard provided.

Your freedom is not diminished

The court, however, dismisses the claim and declares that home guard that does not require intervention cannot be considered work time. As explained, the personnel who carry out these actions are only required to be available and contactable, but no minimum response time is set if they are required for an intervention.

That is, since employees only have to keep an eye on their cell phone, but are not forced to remain in a specific place (not even nearby), the guard does not reduce their freedom of movement or dedicate themselves to their “personal and social concerns.” ”.

The Court refers to a ruling from the Court of Justice of the European Union, which established that an employee's home guard time is working time if the obligation to respond to the call within a certain period of time is imposed (in that case was eight minutes).