The Working Time Directive states that workers should not work, on average, more than 48 hours per week.
However, workers can agree to opt out of the directive, if they want to work longer than that.
In Pfeiffer and ors v Deutsches Rotes Kreuz, Kreisverband Waldshut Ev (2005, IRLR 137), the European Court of Justice (ECJ) has said, among other things, that this right must always be made available to individual workers and cannot be absorbed into a collective agreement.
What was the complaint?
Seven emergency workers complained that, when calculating their maximum weekly working time, their employer - the German Red Cross - took no account of periods of "duty time" which they were required to undertake as part of their job.
Under German law, duty time is when the worker is at work and obliged to stay attentive so they can respond to a call. This is different from on-call time when the worker just has to be available for duty, and stand-by time when he or she has to be available at short notice. Only duty time constitutes full time work, the other two being categorised as rest time except when the worker is carrying out his or her duties.
In accordance with the Working Time Directive, German law stipulated that daily working time should not exceed eight hours on average. However, it also allowed for an opt out under a collective or works agreement to extend the hours if working time regularly included significant periods of duty time.
The collective agreement at the Red Cross allowed for varying extensions of the working day, depending on the amount of regular duty time required of the worker.
What was the ECJ asked to decide?
The German court asked the ECJ to decide the following issues:
1. Does the directive apply to emergency workers?
2. Does the road transport exclusion under the directive apply to land-based emergency medical services?
3. Do individual employees have to agree expressly and freely to the opt-out, or can someone's employment contract refer to a collective agreement which allows an extension?
4. Can individual workers rely directly on Article 6 (which states that average working time for each seven-day period, including overtime, must not exceed 48 hours) if member states do not transpose the directive properly into national law?
What did the ECJ decide?
The court decided that:
1. The exclusion of certain civil protection services under the directive to ensure the proper operation of those services does not apply to emergency workers who are protected under the directive.
2. The concept of "road transport" does not encompass an emergency medical service.
3. For the opt out from the maximum period of weekly working time laid down to be valid, the worker's consent must be given not only individually but also expressly and freely. It is not enough for the worker's employment contract to refer to a collective agreement which permits such an extension. The court's use of the word "freely" suggests that an optout cannot be contained in a job offer or even in a contract of employment as a condition of employment.
4. Workers can rely directly on Article 6 if the directive has not been properly transposed into national law. That means that periods of duty time must be taken in to account when calculating the maximum daily and weekly working time. National law must always be interpreted in conformity with European law which takes precedence.