The West Frisian Islands: Different rules than on the mainland?

Ruben Houweling

The ambulance service of Friesland and Drenthe provides ambulance care not only on the mainland but also on the West Frisian Islands. However, there is an essential difference between a shift on the mainland and a shift on the Wadden Islands. Ambulance workers on the mainland work 24-hour shifts, during which they remain at the ambulance station for the entire time. Consequently, the entire shift is considered working time. In contrast, on the Wadden Islands, a 24-hour shift consists of 12 hours of on-site duty and 12 hours of on-call duty. During the on-call duty, employees must always be reachable and able to arrive at the station within a few minutes when called. The ambulance service, however, does not consider the on-call duty as working time. Therefore, six ambulance workers went to court in 2020, and four years later, the Supreme Court ruled that this is not 'wasted' time. According to the Supreme Court, availability under certain circumstances can be equated with 'working time.' This has implications for planning and wage payments. Ruben Houweling, Professor of Labor Law at Erasmus School of Law, explained the ruling in NRC.

The fact that on-call duty for ambulance workers is not considered working time has financial consequences. Additionally, there is another issue many ambulance workers face: the lack of a right to rest time after an on-call duty. While mainland ambulance workers have a mandatory 11-hour rest period after their 24-hour shift, this does not apply to ambulance workers on the West Frisian Islands.

On-call duty not considered working time

In 2020, the subdistrict court ruled that on-call duties for ambulance workers on the West Frisian Islands should also be considered working time. However, Friesland and Drenthe's ambulance service disagreed and appealed.

The case was then brought before the Arnhem-Leeuwarden Court of Appeal. Contrary to the subdistrict court, the Court of Appeal ruled that on-call duty should not be considered working time. In its reasoning, the court stated that during on-call duty, employees are able to engage in private activities. The court also looked at how often employees were called at night. On Vlieland, this happened once every six weeks, and on Terschelling, once every four weeks. Finally, the court weighed the issue of 'beeper pressure.' Ambulance workers on the West Frisian Islands reported experiencing stress because they could be called anytime. Nevertheless, the court ruled that the beeper pressure does not sufficiently outweigh the limited hindrance to engage in private activities or the low likelihood of being called during an on-call duty. Houweling commented to NRC: "The court looks at two things: the response time and how often call-outs occur, and balances them against each other. That is not what the EU Court of Justice has explained to us. You consider both circumstances, but not as a mathematical formula."

Or is it working time after all?

The Supreme Court does not agree with the Court of Appeal's ruling. According to the Supreme Court, being called during an on-call duty has a significant impact. Ambulance workers must respond within two minutes when called and arrive on the scene as quickly as possible, in uniform. The Supreme Court ruled that this response time greatly affects employees' freedom to spend their time as they see fit during an on-call duty. In such cases, on-call duties should be considered working time. Houweling told NRC: "Because of the short response time, employees cannot do what they want. Therefore, it is considered working time. The fact that call-outs are rare is less relevant to the Supreme Court." Houweling added: "Suppose you have an on-call duty over the weekend where you need to answer the phone and take notes so you can follow up on Monday. This is a burden, but it has become so generally accepted that you answer the phone everywhere - even if you are, for example, with your children at an amusement park - that the impact on your private time is not that significant. Such an on-call duty will not easily qualify as working time. On the other hand, if you are called six times an hour, the amusement park is no longer fun for the children. In that case, the frequency of calls does matter."

Because the on-call duties of ambulance workers on the West Frisian Islands are considered working time, employees on the West Frisian Islands now, like their mainland colleagues, are entitled to 11 hours of rest after a 24-hour shift and continued payment of wages.

Further Legal Proceedings

The Supreme Court has overturned the judgment and referred the case to the Court of Appeal in 's-Hertogenbosch. Houweling commented on the further legal proceedings to NRC: "The case now goes to the Court of Appeal in 's-Hertogenbosch. However, what you often see is that parties no longer wait for this because the outcome can be reasonably predicted. In this case, the ambulance service could also say: 'Okay, we will now also consider these duties on the West Frisian Islands as working time and accept the necessary consequences. Court, let’s drop the further procedure.'"

Working Time, But Not Always (More) Pay

Houweling explains: "The ruling teaches us that on-call duties qualify as working time more often than previously thought." This means, first of all, that employers must review their schedules and planning because employees cannot just start working again the next day. That would violate the Working Hours Act. Houweling continues: "A related - but equally relevant - question is whether employees are also entitled to regular pay for the entire on-call duty. This is not necessarily the case. Working time says something about work and rest time. Whether the time is also paid time depends on what the parties have agreed upon, or what reasonableness and fairness dictate. Whether the ambulance workers will also receive their usual pay for the entire on-call duty remains to be seen. Time will tell."

More information

Read the NRC article here (in Dutch).

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