In a recent Romanian case of 28 October 2021, the CJEU had to answer the question of whether a municipal firefighter could claim that the hours he spent on a mandatory professional training constituted working time. The CJEU confirmed that this was the case, as the employer clearly instructed the employee to follow the training.
Mr. BX is the Head of the Prevention Department (firefighter) of a Romanian municipality. As a necessary condition (laid down by law) for the organisation and performance of the public service activity by Mr. BX, his employer requested that he follow 160 hours of vocational training. The employer concluded a contract with a training provider to the benefit of Mr. BX. The training took place at the premises of that training provider;124 hours took place outside the normal working hours of Mr. BX. After the finalisation of the training, Mr. BX claimed a payment due for overtime from his employer.
The Romanian Court of Appeal posed a prejudicial question to the CJEU in order to see whether such a mandatory vocational training, after completing the normal hours of work, at the premises of the training services provider, away from his or her place of work, and without performing any of his or her service duties, constitutes working time.
The Court of Justice stated that a decisive factor is the fact that the worker is required to be physically present at the place determined by the employer. Where a worker receives instructions from the employer to attend vocational training in order to continue to carry out his duties, he is at his employer’s disposal. The fact that the activity carried out by a worker during periods of vocational training differs from that carried out in the course of his normal duties is irrelevant.
The question of whether this overtime has to be compensated financially can only be answered by the national court, as the Working Time Directive does not provide any guidance on this matter (as wage is excluded from the EU competences).
Key Action Points for Human Resources and In-house Counsel
- To avoid conflicts concerning overtime, allow the employees to follow mandatory vocational trainings during their normal work hours.
- If the law requests a vocational training for employees, try to prevent giving instructions regarding the training to the employee.
- If the qualification as working time is inevitable, try to lay down specific rules regarding the compensation of the time spent on vocational training outside normal working hours, insofar as this is allowed by national law.