Family assistants that provide permanent care for children should not be considered as workers in the sense of directive 2003/88 on working time, according to the Opinion delivered on Thursday 28 June 2018 by Advocate Nils Wahl in Case C-147/17.
In this case, around 100 family assistants (host families) employed by a Romanian public institution were obliged to look after the children in their care on a continual basis and filed a complaint about the conditions for carrying out of their jobs at the Romanian courts.
The family assistants therefore called for complementary wages for the work provided during the weekly rest days, holidays and other non-working days, as well as compensation for work undertaken during the legal holidays that were not taken, on the ground, in particular, of directive 2003/88 on working time.
The Romanian court referred the case to the European Court of Justice (ECJ) to examine the question of the applicability of the directive to the dispute.
Equivocal concept
In his Opinion, the Advocate General first of all points out that the term “worker”, “must be interpreted autonomously within Union law” on the basis of ECJ caselaw in case C-428/09. The description of the work contract in this case, is therefore non-effective on the applicability of the directive.
Nils Wahl refers again to the ruling delivered in Case C‑85/96 which stipulates that, “the notion of worker in Community law is not equivocal and varies according to the domain of the application envisaged”. The Advocate General holds that one can therefore be considered as a worker under the terms of article 45 in the Treaty on the Functioning of the EU on the free movement of workers but not under the terms of directive 2003/88.
He therefore provides a restrictive interpretation of the concept of worker in the directive on working time which he believes responds to “the logic underpinning the legal instrument and the interests that this instrument seeks to protect”.
Imprecise analogy
He is also therefore refusing to recognise existence of a subordinate link between the Romanian institution and the family assistants, despite the obligation of the family assistants to remain at their “post”, except when they have the express authorisation or requirement for them to accept the supervision of child protection specialists.
According to Mr Wahl “rather than working in the context of a subordinate link and, therefore, for and under the management of the competent authority, family assistants are mandated by the competent authority to take care of the children in question as any other parent”.
He also highlights the independent nature of the activity exercised by the family assistants and speaks of agents rather than workers, admitting, however, that the analogy he advocates is “imprecise”.
Possible consequences
The position of the Advocate General appears to be motivated, above all, by the consequences of the possible application of the directive to host families.
This would lead to authorising rest days without children, which would, in practice, oblige the children in care to “go from one family to another”, a situation that the Advocate General states argues would go against, “the overriding interest of the children concerned”.
He therefore advocates that the applicability of the directive is not recognised in order to avoid these demands. (Original version in French by Mathieu Solal, trainee)