Pub Date : 2023-04-02DOI: 10.1177/20319525231167300
Aislinn Kelly-Lyth
The potential for algorithms to discriminate is now well-documented, and algorithmic management tools are no exception. Scholars have been quick to point to gaps in the equality law framework, but existing European law is remarkably robust. Where gaps do exist, they largely predate algorithmic decision-making. Careful judicial reasoning can resolve what appear to be novel legal issues; and policymakers should seek to reinforce European equality law, rather than reform it. This article disentangles some of the knottiest questions on the application of the prohibition on direct and indirect discrimination to algorithmic management, from how the law should deal with arguments that algorithms are ‘more accurate’ or ‘less biased’ than human decision-makers, to the attribution of liability in the employment context. By identifying possible routes for judicial resolution, the article demonstrates the adaptable nature of existing legal obligations. The duty to make reasonable accommodations in the disability context is also examined, and options for combining top-level and individualised adjustments are explored. The article concludes by turning to enforceability. Algorithmic discrimination gives rise to a concerning paradox: on the one hand, automating previously human decision-making processes can render discriminatory criteria more traceable and outcomes more quantifiable. On the other hand, algorithmic decision-making processes are rarely transparent, and scholars consistently point to algorithmic opacity as the key barrier to litigation and enforcement action. Judicial and legislative routes to greater transparency are explored.
{"title":"Algorithmic discrimination at work","authors":"Aislinn Kelly-Lyth","doi":"10.1177/20319525231167300","DOIUrl":"https://doi.org/10.1177/20319525231167300","url":null,"abstract":"The potential for algorithms to discriminate is now well-documented, and algorithmic management tools are no exception. Scholars have been quick to point to gaps in the equality law framework, but existing European law is remarkably robust. Where gaps do exist, they largely predate algorithmic decision-making. Careful judicial reasoning can resolve what appear to be novel legal issues; and policymakers should seek to reinforce European equality law, rather than reform it. This article disentangles some of the knottiest questions on the application of the prohibition on direct and indirect discrimination to algorithmic management, from how the law should deal with arguments that algorithms are ‘more accurate’ or ‘less biased’ than human decision-makers, to the attribution of liability in the employment context. By identifying possible routes for judicial resolution, the article demonstrates the adaptable nature of existing legal obligations. The duty to make reasonable accommodations in the disability context is also examined, and options for combining top-level and individualised adjustments are explored. The article concludes by turning to enforceability. Algorithmic discrimination gives rise to a concerning paradox: on the one hand, automating previously human decision-making processes can render discriminatory criteria more traceable and outcomes more quantifiable. On the other hand, algorithmic decision-making processes are rarely transparent, and scholars consistently point to algorithmic opacity as the key barrier to litigation and enforcement action. Judicial and legislative routes to greater transparency are explored.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66119633","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-02DOI: 10.1177/20319525231167317
Halefom H. Abraha
The regulation of algorithmic management falls under the purview of multiple legal domains including but not limited to labour law, non-discrimination law and data protection law. While labour law does not have explicit provisions to adequately protect workers from algorithmic harms, existing non-discrimination and data protection laws can address some aspects of these harms. This article examines the extent to which the GDPR offers the necessary tools to protect workers from harm stemming from algorithmic management. It argues that while the provisions tailored to automated decision-making (ADM) and the rest of the GDPR provide workers with some limited protections, significant gaps remain. It then suggests some policy options on how the existing protections under the GDPR can be further complemented, particularised, and strengthened through a combination of legislative and non-legislative measures.
{"title":"Regulating algorithmic employment decisions through data protection law","authors":"Halefom H. Abraha","doi":"10.1177/20319525231167317","DOIUrl":"https://doi.org/10.1177/20319525231167317","url":null,"abstract":"The regulation of algorithmic management falls under the purview of multiple legal domains including but not limited to labour law, non-discrimination law and data protection law. While labour law does not have explicit provisions to adequately protect workers from algorithmic harms, existing non-discrimination and data protection laws can address some aspects of these harms. This article examines the extent to which the GDPR offers the necessary tools to protect workers from harm stemming from algorithmic management. It argues that while the provisions tailored to automated decision-making (ADM) and the rest of the GDPR provide workers with some limited protections, significant gaps remain. It then suggests some policy options on how the existing protections under the GDPR can be further complemented, particularised, and strengthened through a combination of legislative and non-legislative measures.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42508777","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-30DOI: 10.1177/20319525231165851
S. Danaj, Mojca Vah Jevšnik, Marcin Kiełbasa, Monika Szaraniec
Drawing on research conducted in the framework of the POSTING.STAT project for Slovenia and Poland, this article contributes to the literature on the posting of third-country nationals (TCNs) within the European Union from the perspective of the sending countries. Our research questions are: What are the current posting trends and patterns of mobility of TCNs from Poland and Slovenia? How do national legal and policy instruments in Poland and Slovenia shape the recruitment of TCNs and facilitate the posting of these TCNs to other Member States? We find that the recent growth in posting from both countries is driven by the substantial increase in the number of posted TCNs, which might signal at least their complementary role, if not the replacement, of posted nationals with TCNs to sustain the established business models of posting from Slovenia and Poland. We observe two trends. Firstly, national legal and policy instruments encourage labour migration from certain third countries with which Slovenia and Poland have historical ties and geographical proximity, which are then embedded in their national labour markets. Secondly, both countries remain source countries for the posting of workers, a pattern they have been able to sustain by increasing the use of TCNs for posting. Hence, despite a growing share of TCNs involved in posting, most TCNs continue to be based in Slovenia and Poland, suggesting posting or onward migration are not necessarily the main reason these workers go to Slovenia and Poland in the first place. Yet, the increase in numbers of posted TCNs observed in both countries, regardless of stricter regulations and the Covid-19 pandemic, suggests that posting in labour-intensive sectors such as road freight transport and construction is increasingly becoming a segmented labour market. We argue that the posting of TCNs might grow into an important intra-EU mobility channel, with the caveat that while certain EU countries will insist on restricting direct access to their national labour market for TCNs, other EU countries, especially those that so far have acted as labour or services suppliers, will lend themselves as gate-openers for the intra-EU mobility of TCNs.
{"title":"There and gone again? Migration to and posting of third-country nationals from Slovenia and Poland","authors":"S. Danaj, Mojca Vah Jevšnik, Marcin Kiełbasa, Monika Szaraniec","doi":"10.1177/20319525231165851","DOIUrl":"https://doi.org/10.1177/20319525231165851","url":null,"abstract":"Drawing on research conducted in the framework of the POSTING.STAT project for Slovenia and Poland, this article contributes to the literature on the posting of third-country nationals (TCNs) within the European Union from the perspective of the sending countries. Our research questions are: What are the current posting trends and patterns of mobility of TCNs from Poland and Slovenia? How do national legal and policy instruments in Poland and Slovenia shape the recruitment of TCNs and facilitate the posting of these TCNs to other Member States? We find that the recent growth in posting from both countries is driven by the substantial increase in the number of posted TCNs, which might signal at least their complementary role, if not the replacement, of posted nationals with TCNs to sustain the established business models of posting from Slovenia and Poland. We observe two trends. Firstly, national legal and policy instruments encourage labour migration from certain third countries with which Slovenia and Poland have historical ties and geographical proximity, which are then embedded in their national labour markets. Secondly, both countries remain source countries for the posting of workers, a pattern they have been able to sustain by increasing the use of TCNs for posting. Hence, despite a growing share of TCNs involved in posting, most TCNs continue to be based in Slovenia and Poland, suggesting posting or onward migration are not necessarily the main reason these workers go to Slovenia and Poland in the first place. Yet, the increase in numbers of posted TCNs observed in both countries, regardless of stricter regulations and the Covid-19 pandemic, suggests that posting in labour-intensive sectors such as road freight transport and construction is increasingly becoming a segmented labour market. We argue that the posting of TCNs might grow into an important intra-EU mobility channel, with the caveat that while certain EU countries will insist on restricting direct access to their national labour market for TCNs, other EU countries, especially those that so far have acted as labour or services suppliers, will lend themselves as gate-openers for the intra-EU mobility of TCNs.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46529442","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-29DOI: 10.1177/20319525231163446
Filip Dorssemont
This contribution critically discusses the EPSU case of the Court of Justice of the European Union, delivered on 2 September 2021. It deals with the question of how to interpret Article 155 of the TFEU in relation to the scope of Article 155(2) TFEU, concluding that the European Commission has no obligation to propose a Directive to the Council implementing a collective agreement reached at European level.
{"title":"Shall or not shall be: That is the question","authors":"Filip Dorssemont","doi":"10.1177/20319525231163446","DOIUrl":"https://doi.org/10.1177/20319525231163446","url":null,"abstract":"This contribution critically discusses the EPSU case of the Court of Justice of the European Union, delivered on 2 September 2021. It deals with the question of how to interpret Article 155 of the TFEU in relation to the scope of Article 155(2) TFEU, concluding that the European Commission has no obligation to propose a Directive to the Council implementing a collective agreement reached at European level.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42488275","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-02-08DOI: 10.1177/20319525221141611
Bernd Waas
{"title":"Guest Editorial","authors":"Bernd Waas","doi":"10.1177/20319525221141611","DOIUrl":"https://doi.org/10.1177/20319525221141611","url":null,"abstract":"","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47216765","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-19DOI: 10.1177/20319525221148129
Monika Latos-Miłkowska
The change to the scope of the right to associate in trade unions is the most fundamental change that has taken place in Polish collective labour law in recent years. This article discusses the transformation of the scope of the right to unionise that was introduced by the amendment of the Trade Unions Act of 5 July 2018. For the sake of completeness, the genesis of the amendment will be briefly presented, in particular, the theses of the Constitutional Tribunal judgment of 2 June 2015 (K 1/13), which gave rise to this amendment and set its direction. I will then present the regulations currently in force in Polish law regarding the scope of unionising and will attempt to assess the effects of the changes introduced by the legislator in this respect.
{"title":"The right to unionise in Poland after the amendment of the law on trade unions","authors":"Monika Latos-Miłkowska","doi":"10.1177/20319525221148129","DOIUrl":"https://doi.org/10.1177/20319525221148129","url":null,"abstract":"The change to the scope of the right to associate in trade unions is the most fundamental change that has taken place in Polish collective labour law in recent years. This article discusses the transformation of the scope of the right to unionise that was introduced by the amendment of the Trade Unions Act of 5 July 2018. For the sake of completeness, the genesis of the amendment will be briefly presented, in particular, the theses of the Constitutional Tribunal judgment of 2 June 2015 (K 1/13), which gave rise to this amendment and set its direction. I will then present the regulations currently in force in Polish law regarding the scope of unionising and will attempt to assess the effects of the changes introduced by the legislator in this respect.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45092629","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-29DOI: 10.1177/20319525221142235
Cécile Tournaye
Inland Water Transport (IWT) workers within the EU represent a workforce of about 50,000, most of whom work across borders on a regular basis. The national labour law applicable to them is hard to determine under the current EU legal framework. In particular, the question of whether, and if so, when, IWT workers should be viewed as posted workers, within the meaning of the Posting of Workers Directive (PWD), remains unclear. This article aims to shed some light on the matter. It suggests that determining the national labour law applicable to them under the Rome I Regulation should be the priority. This would suppose that the meaning of the ‘habitual place of work’ be clarified for IWT workers. In order to do so, we claim that the usual pattern of operation in IWT should be taken into account. IWT is a river-based, rather than a country-based, activity. For this reason, we suggest a two-step process in determining the habitual place of work: first designate the river where IWT workers carry out their activity, then determine the law of the riparian State that is objectively applicable to their contract of employment. In our view, such an approach would suffice to fix most social dumping practices presently ongoing in IWT. It would also bring clarity and security to both workers and transport undertakings, without generating disproportionate additional administrative burdens for Member States or transport undertakings. The PWD would then marginally apply to IWT workers, covering cases that depart from the usual IWT patterns of operation, when it brings real benefits to IWT workers.
{"title":"Inland water transport workers and the Posting of Workers Directive","authors":"Cécile Tournaye","doi":"10.1177/20319525221142235","DOIUrl":"https://doi.org/10.1177/20319525221142235","url":null,"abstract":"Inland Water Transport (IWT) workers within the EU represent a workforce of about 50,000, most of whom work across borders on a regular basis. The national labour law applicable to them is hard to determine under the current EU legal framework. In particular, the question of whether, and if so, when, IWT workers should be viewed as posted workers, within the meaning of the Posting of Workers Directive (PWD), remains unclear. This article aims to shed some light on the matter. It suggests that determining the national labour law applicable to them under the Rome I Regulation should be the priority. This would suppose that the meaning of the ‘habitual place of work’ be clarified for IWT workers. In order to do so, we claim that the usual pattern of operation in IWT should be taken into account. IWT is a river-based, rather than a country-based, activity. For this reason, we suggest a two-step process in determining the habitual place of work: first designate the river where IWT workers carry out their activity, then determine the law of the riparian State that is objectively applicable to their contract of employment. In our view, such an approach would suffice to fix most social dumping practices presently ongoing in IWT. It would also bring clarity and security to both workers and transport undertakings, without generating disproportionate additional administrative burdens for Member States or transport undertakings. The PWD would then marginally apply to IWT workers, covering cases that depart from the usual IWT patterns of operation, when it brings real benefits to IWT workers.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2022-12-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48289341","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-28DOI: 10.1177/20319525221141619
C. Barnard
The application of the Working Time Directive (WTD) 2003/88 has caused serious issues in those sectors needing 24 hours a day/seven days a week cover (24/7). Employers have explored whether they can take advantage of the opt-out from the 48-hour working week in Article 22 or rely on the range of derogations in the Directive. Of particular interest, however, is the use of the exceptions. These exceptions apply, for example, ‘where characteristics peculiar to certain specific public service activities, such as the armed forces or the police, or to certain specific activities in the civil protection services inevitably conflict’ with the WTD. The interpretation of the provisions on exceptions has led to a number of important cases, cases which will be considered in the article. I wish to argue that, consistent with its earlier approach, the Court has maintained that the WTD will, in principle, apply to workers, even in those sectors requiring 24/7 cover. With this as its starting premise, the Court has then set the bar high for when it will accept that any of the exceptions will apply. The Court has even indicated, in the Slovenian Army case, that the Directive will apply to the military, much to the consternation of some Member States, albeit developing a new carve out for ‘military commitment’ activities. The Court also pays close attention to the text of the exceptions to ensure that employers are not misusing them. I will argue that the exceptions are indeed exceptional.
{"title":"Exceptional exceptions: The case of the Working Time Directive","authors":"C. Barnard","doi":"10.1177/20319525221141619","DOIUrl":"https://doi.org/10.1177/20319525221141619","url":null,"abstract":"The application of the Working Time Directive (WTD) 2003/88 has caused serious issues in those sectors needing 24 hours a day/seven days a week cover (24/7). Employers have explored whether they can take advantage of the opt-out from the 48-hour working week in Article 22 or rely on the range of derogations in the Directive. Of particular interest, however, is the use of the exceptions. These exceptions apply, for example, ‘where characteristics peculiar to certain specific public service activities, such as the armed forces or the police, or to certain specific activities in the civil protection services inevitably conflict’ with the WTD. The interpretation of the provisions on exceptions has led to a number of important cases, cases which will be considered in the article. I wish to argue that, consistent with its earlier approach, the Court has maintained that the WTD will, in principle, apply to workers, even in those sectors requiring 24/7 cover. With this as its starting premise, the Court has then set the bar high for when it will accept that any of the exceptions will apply. The Court has even indicated, in the Slovenian Army case, that the Directive will apply to the military, much to the consternation of some Member States, albeit developing a new carve out for ‘military commitment’ activities. The Court also pays close attention to the text of the exceptions to ensure that employers are not misusing them. I will argue that the exceptions are indeed exceptional.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2022-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41942210","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-15DOI: 10.1177/20319525221141621
V. Leccese
The Court of Justice of the European Union's (CJEU) decision of 14 May 2019 in Case C-55/18, CCOO represents an important milestone in the Court's case law on working time. This decision raises specific questions about the adequacy of national laws and offers interpreters an opportunity to reflect on certain challenges related to the measurement of working time. The aim of this contribution is to highlight the significance of the CJEU's decision and its implications for national legislative frameworks. After providing a brief analysis of the ruling, the article focuses on the following aspects: how to ensure that working time is accurately recorded for the purpose of enforcing the Working Time Directive, and in the light of lessons learnt from some national experiences (section 2); the usefulness of the obligation to measure working time within the context of the burden of proof in individual disputes (section 3); under which conditions Member States can take advantage of the leeway provided by the Court in the implementation of the principle of compulsory monitoring of working time, especially for activities for which working time is not measured and/or can be (pre)determined by the workers themselves (section 4); and the challenges posed by teleworking and agile work (section 5).
{"title":"Monitoring working time and Working Time Directive 2003/88/EC: A purposive approach","authors":"V. Leccese","doi":"10.1177/20319525221141621","DOIUrl":"https://doi.org/10.1177/20319525221141621","url":null,"abstract":"The Court of Justice of the European Union's (CJEU) decision of 14 May 2019 in Case C-55/18, CCOO represents an important milestone in the Court's case law on working time. This decision raises specific questions about the adequacy of national laws and offers interpreters an opportunity to reflect on certain challenges related to the measurement of working time. The aim of this contribution is to highlight the significance of the CJEU's decision and its implications for national legislative frameworks. After providing a brief analysis of the ruling, the article focuses on the following aspects: how to ensure that working time is accurately recorded for the purpose of enforcing the Working Time Directive, and in the light of lessons learnt from some national experiences (section 2); the usefulness of the obligation to measure working time within the context of the burden of proof in individual disputes (section 3); under which conditions Member States can take advantage of the leeway provided by the Court in the implementation of the principle of compulsory monitoring of working time, especially for activities for which working time is not measured and/or can be (pre)determined by the workers themselves (section 4); and the challenges posed by teleworking and agile work (section 5).","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2022-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41309026","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-14DOI: 10.1177/20319525221141622
L. Mitrus
The article explores the evolution of the CJEU jurisprudence following on from the Matzak case. It provides an analysis of the most recent judgments on stand-by time, including those in case C-344/19 Radiotelevizija Slovenija, case C-580/19 Stadt Offenbach am Main, case C-107/19 Dopravní podnik hl. m. Prahy, and case C-214/20 Dublin City Council. The disputes concerned workers on stand-by duty who were not required to be physically present at the location expressly designated by the employer, but were expected to resume work within a short or very short period of time if necessary. In order to classify stand-by periods as working time or rest periods under the Directive 2003/88, the CJEU analyses whether the constraints imposed on the worker are such as to affect, objectively and very significantly, the possibility for the latter freely to manage the time during which his or her professional services are not required and to pursue his or her own interests. Moreover, the CJEU requires that employers cannot establish periods of stand-by time that are so long or so frequent that they constitute a risk to the safety or health of workers, irrespective of those periods being classified as rest periods. In the author's opinion, the required response time is a decisive and most important factor in the assessment. If the reaction period is very short, then in principle the stand-by time constitutes working time. Where the situation is not prima facie clear, additional secondary criteria should be taken into account. The factors that fall within the scope of an employer's managerial competences and pertain to an organisation's operational needs, and also the type of work performed by the worker, are relevant in assessing the legal characterisation of a particular stand-by period. The evaluation should not be affected by factors that remain beyond employer's control, e.g., the location of the workplace, the worker's residence, and distance between them.
本文从马扎克案开始，探讨了欧洲法院法理学的演变。它提供了关于待机时间的最新判决的分析，包括案例C-344/19 Radiotelevizija Slovenija，案例C-580/19 Stadt Offenbach am Main，案例C-107/19 Dopravní podnik hl。普拉希先生和C-214/20号案件，都柏林市议会。争议涉及值班工人，他们不需要亲自到雇主明确指定的地点，但如有必要，期望他们在很短的时间内或很短的时间内恢复工作。为了根据第2003/88号指令将待机时间划分为工作时间或休息时间，欧洲法院分析了对工人施加的限制是否客观且非常显著地影响了工人自由管理不需要他或她的专业服务的时间和追求自己兴趣的可能性。此外，欧洲法院要求雇主不得规定对工人的安全或健康构成威胁的长时间或频繁的待命时间，无论这些时间是否被归类为休息时间。在笔者看来，所需的响应时间在评估中是决定性的，也是最重要的因素。如果反应时间很短，那么原则上待机时间构成工作时间。如果情况表面上不清楚，则应考虑到其他次要标准。在雇主的管理能力范围内，与组织的运营需要有关的因素，以及工人所从事的工作类型，在评估特定待命期的法律特征时是相关的。评估不应受到雇主无法控制的因素的影响，例如工作场所的位置、工人的住所以及两者之间的距离。
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