We are aware of colleagues being asked to ‘voluntarily’[1] declare their availability to ‘ensure business continuity’[2] during the end-of-year stop (23.12.2024-02.01.2025). Given that many staff will already have their laptop with them, whether that’s to use the 10 telework from anywhere (TWA) days, to accommodate the routine building closures at this time of year[3] or to work around cold offices, it can seem a little predatory to then ask when (not whether) colleagues are available during these rest days for unspecified and as-yet-unmeasured tasks. As though no one would have the intention of filling that time with their own plans!

Standby is not rest

Our position has always been that staff should receive financial compensation for standby duty and work. All staff should get the same financial compensation for making themselves ready and available to work out of hours – regardless of the DG they work in and where they work. It is neither fair nor transparent that some DGs have a formal standby system while others expect (and insist!) on that time being ‘volunteered’. Our free time and leave is precious, independent of where we work!

A period of stand-by time must be considered working time where

‘the constraints imposed on the worker very significantly affect his or her ability to manage, during that period, his or her free time. The organisational difficulties that a period of stand-by time may entail for the worker and which are the result of natural factors or the free choice of that worker are not relevant’ (Court of Justice of the European Union, PRESS RELEASE No 35/21, Luxembourg, 9 March 2021, Judgments in Cases C-344/19)

Standby is obligatory, right?

We hear Article 55 paragraph 1 of the staff regulations quoted a lot in this context, but we invite you to read paragraphs 2 to 4. Yes, there is provision there for being at the disposal of the institution, but it is also clearly stated there that the working week has a fixed limit and that  any standby is to be organised formally. Article 56 limits how much additional work can be expected and restricts the circumstances:

‘An official may not be required to work overtime except in cases of urgency or exceptional pressure of work; night work, and all work on Sundays or public holidays, may be authorised only in accordance with the procedure laid down by the appointing authority. The total overtime which an official may be asked to work shall not exceed 150 hours in any six months.

Overtime worked by officials in function group AD, and in function group AST 5 to 11. shall carry no right to compensation or remuneration.

As provided in Annex VI, overtime worked by officials in grades SC 1 to SC 6 and grades AST 1 to AST 4 shall entitle them either to compensatory leave or to remuneration where requirements of the service do not allow compensatory leave during two months following that in which the overtime was worked.’

Articles 55 and 56 put responsibility on both the employer and the employee to deal with  exceptional circumstances. We ask line managers to be clear on what they’re asking for, on how they expect it to work and on the voluntariness of this request.

Uncomfortable saying ‘no’ to such a ‘request’?

Voluntold or voluntary? We appreciate that such requests for your out-of-hours and weekend availability are often not really requests in the true sense. Consequently, it’s not always easy to answer honestly and directly, though your thoughts may not be far from those expressed below.

‘No, I don’t want to make myself available on the off chance that you might need a task done, without having any sort of guarantee that you will value my time. These days are for me to disconnect and I choose not to spend that time waiting to be called upon and then have nothing in return: this is incompatible with rest’.

But there’s give and take, right?

Let’s put this request to be available during the end-of-year rest, regardless of location, into context: how balanced is the much-vaunted flexibility offered at the Commission?

Time: Colleagues are frequently unable to use all of their leave, some 7 664 days of annual leave were lost and not carried over from 2020 to 2021 and we are aware of many losses of additional hours, even where those hours were accumulated at the request of hierarchy. We’ve had to fight for colleagues with the right to transfer their leave from one year to the next to see that happen: many previously lost out.

Location: An IDOC investigation disciplined a colleague for working from outside the place of assignation without permission (2021 report, p. 12)

Generation 2004 believes that staff have been and continue to be flexible, we would like to see the Commission demonstrate a similar degree of flexibility.

Questions to ask: let’s make informed choices!

We take the opportunity to (re)publish an updated version of an email a colleague sent to hierarchy in response to a similar request:

Please share the detailed DG standby rules (required by staff regulations, Article 55) to answer the example questions below and so manage everyone’s expectations.

1. Please specify the cover you are asking us to provide: e.g. is this weekends and evenings too? Is also this Christmas day and New Year’s day?
2. Who is to provide this stand-by cover? Officials? AST/SCs?
3. How does this comply with the disconnection period of 19.00-08.00? C(2022) 1788 final, Article 5(6)
4. How quickly are staff expected to react to the advisory phone call and start work?
5. What tasks are incompatible with this stand-by cover, e.g. sleeping, bathing, being outside the home?
6. How will you ensure that staff receive sufficient rest (note that being available is incompatible with rest) (Working Time Directive: ‘in every 24 hours a worker is entitled to a minimum of 11 consecutive hours of rest’.)
7. Are we genuinely volunteering or obliged to serve? (staff regulations, Article 56))
8. Which staff are excused from this request? E.g. those who made plans to use their holiday to do something specific, those who have previously had a burnout, those who cannot guarantee reasonable internet provision, those who don’t want to?
9. How do the rules apply to those who do not work full time?
10. What financial, time credit or other compensation is provided to staff undertaking the standby duties (Council Regulations on standby duty (No 495/77)).
11. How are we to register this time, both standby (‘availability’) and work (‘business continuity’) given the Commission evaluation on the WTHW decision expressed a need ‘for accurate, effective and efficient encoding and monitoring’ of time.

For any other questions, do not hesitate to get in touch or leave a comment below.

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[1] ‘Voluntary’ does not mean what you think it means in the Commission. We’ve previously questioned to what extent working from home or being a member of work signal groups is truly voluntary.

On the voluntariness of informal standby, the 2019 Central Staff Committee note 18/12/2019 (2019)7798989 states ‘The [DGT standby] scheme is ‘voluntary’ in that it is stated that staff are not obliged to be on standby. In practice staff report that they feel obliged to ‘volunteer’ in order to share the burden with colleagues.’ At the DGT staff meeting Luxembourg 09.03.2023 the acting DG stated that the only element of DGT standby duty which is voluntary is that the translator has some flexibility in the choice of week. So, a standby system which is neither truly voluntary nor formally organised, what about Articles 55 and 56 of the staff regulations?

[2] What does this mean in real terms? Availability in C(2022) 1788 final is ‘available for interaction with other colleagues’ (Article 5(1)) further clarified as being reachable: ‘to be able to answer or return a call or reply to an email within a[n unspecified] reasonable period of time’ (Q17, WTHW FAQ) So, how far can you be from your laptop? While you can have Teams and Outlook on your private mobile we find that this blurs the line between work and rest.

[3] Generation 2004 is guessing that Friday 3 January 2025 might be a day of building closures, given the ‘rounding up’ of days we’ve witnessed in 2023 and 2024, but the dates are not normally published until mid-December. It is not normally possible to work from outside the place of work on that day unless you use one of the 10 TWA days from 2025.