The On Call Saga

There has been a lot of ongoing discussion lately following the publication of an article on the Times of Malta with respect to the rules in relation to on call and the working time regulations. We therefore felt that it would be best to clarify the current position prior to further confusion being created. At the moment the working time directive is being discussed and proposed amendments are being approved in relation to the regulation of on call time, amongst other issues. The question at hand is whether such on call is in fact to be taken into consideration for purposes of calculating working time or not.

Following a number of ECJ decisions on the matter it had been clarified that on call time where the employee is in fact expected to stay in one particular place during his on-call duty (such as a hospital ward, or at home) should be considered as working time. All other on call duties where the employee is ‘free to roam’, should not be considered as working time. As one may appreciate we are not commenting about payment for on call time simply because the working time rules are not concerned with payment during on call time. The concern of the regulator and of employers should be the possible breach of a safety rule in that an employee (unless he signs an opt out agreement) cannot work more than 48 hours over a reference period (which ranges from 17 to 52 weeks).

The above so far has not been changed but is in fact being changed into law by amending the European directive. As the Times in fact reported that the directive will leave it up to national regulators to decide upon the future of working time. So let’s keep our fingers crossed and hope that our legislator will make the right choices!