Working time in focus and new ruling on stand-by duty

The ruling concerns a company that produces fry and fingerlings for aquaculture. The company has in place a 1:1 rotation schedule for the employees, where the employees work one week on and one week off, with normal working hours from 7:30 AM to 6:00 PM. The employer also had in place a stand-by scheme, where two employees at any given time shall be on call from 6:00 PM to 8:00 AM. During the on-call duty, the employees are obligated to respond to alarms at the facility. The response time is, pursuant to the stand-by duty scheme, "as quickly as possible" with an outer limit of 25 minutes from receipt of the assignment. With this in mind, that it is not possible to leave the employer's facility when on standby duty. Also, the production facility did not have any direct land access, and the employees were housed in duty accommodation during their work week.

The Norwegian Labour Court assessed whether time used on stand-by duty qualified as "working time" according to the applicable Working Environment Act and Directive 2003/88 (the "Working Time Directive"). The Norwegian Labour Court referred to the EU's judgment in case C-580/19 and case C-344/19, where it follows that the concept of "working time" within the meaning of the Working Time Directive also covers entirety of periods of "stand-by time" (meaning a period during which an employee must remain contactable and may be required to return to his workplace), including those according to a stand-by system, if the stand-by time entails such constraints imposed on the employee that it affect, objectively and very significantly, the possibility for the employee to freely manage the stand-by time and the ability to pursue his own interests.

The Norwegian Labour Court ruled that the stand-by period constituted working time rather than stand-by duty outside the workplace. Although the employees were not physically present at the production facility during the stand-by periods and the response time was formally set at up to 25 minutes, there was in reality a requirement to handle alarms as quickly as possible. The 5-minute alarm acknowledgment to prevent a full alarm effectively tied them to the duty accommodation. Furthermore, the critical nature of the alarms necessitated an immediate response to prevent severe damage or loss of fish. In addition, the court highlighted that the limited phone signal restricted the employees' freedom during the stand-by period, and further that the callouts were of an unpredictable nature and often arose during night hours, which disrupted the employees' rest time.

Based on this, the employees were entitled to retroactive overtime payment and other relevant supplements pursuant to the collective bargaining agreement for time on stand-by duty beyond their regular working hours. The judgment highlights that improperly classified stand-by duties can result in substantial financial liabilities and companies should therefore evaluate their stand-by duty arrangement to ensure compliance.