Working time and paid working time
The EWTD and WTR regulations are concerned with working and non-working time, irrespective of whether it is paid or not. As the 2010 Deloitte report for the European Commission points out: “The European Court of Justice (ECJ) has already held that the Working Time Directive does not apply to the remuneration of workers, including overtime pay”, citing the Dellas judgement, adding that the Treaty on the Functioning of the European Union “makes it clear that matters relating to workers’ pay are a matter to be left to national law only”.
The NHS Agenda for Change terms and conditions agreement notes that working time “may or may not happen to coincide with the time for which a worker receives pay or with the time during which he/she may be required to work under a contract of employment”.
But while taking this distinction into account, unions may still hope either to use the definition of working time to boost their members pay; or to use the definition of paid working time under the minimum wage regulations to prove the need for rest or compensatory rest, for example in cases of on-call working or sleeping-in.