07 Nov, 2016

Does Commuting Equals Work? ECJ Clarifies

Results of one of the latest surveys recently carried out by British Regus, global work-space provider, have revealed that commuting is being experienced as a time waste for nearly one third of UK professionals, given that it does not fall within their working hours.  Said survey led to the actualization of a pivotal judgment rendered by the Court of Justice of the European Union (hereinafter: ECJ) in 2015, according to which such daily journeys undertaken by workers without a fixed or habitual place of work between their homes and the premises of their customers constitute working time.

After processing obtained results of the survey, Regus came to a conclusion regarding optimal legal qualification of the time workers spend commuting.  Namely, as emphasized by Mr. Richard Morris, CEO of Regus UK, time spent on the daily commute should be calculated in working hours and consequently, subsumed under all protective measures provided by the labor law, including the right to an adequate wage.

This line of thinking completely follows the one provided by ECJ in its judgment rendered against Tyco Integrated Security SL and Tyco Integrated Fire & Security Corporation Servicios SA, two Spanish companies engaged in installing and maintaining anti-theft security systems in the premises of their customers.  These companies were, according to ECJ, miscalculating daily working hours of their employees by counting in only the time elapsing between the arrival of the employees at the premises of the first customer and their departure from the premises of the last customer.  ECJ has held that this practice is wrong and that, consequently, working hours of the employees need to be calculated from the moment employees leave their homes in order to head towards the premises of their first customer, up until the moment they return their homes from the premises of their last customer.

Explaining its judgment, ECJ referred to the general definition of working hours contained in the Working Time Directive of the European Union.  Said directive clearly states that any period of time during which the employee is working, is at the employer’s disposal and/or is carrying out his activity or duties, is seen as working time, in accordance with national laws and/or practice.  Vice versa, any period which does not constitute working time is regarded as a rest period.

Bearing in mind said general definition, ECJ emphasized the following: “If a worker who no longer has a fixed place of work is carrying out his duties during his journey to or from a customer, that worker must also be regarded as working during that journey.  Given that travelling is an integral part of being such a worker, the place of work of that worker cannot be reduced to the physical areas of his work on the premises of the employer’s customers.  The fact that the workers begin and finish the journeys at their homes stems directly from the decision of their employer to abolish the regional offices and not from the desire of the workers themselves.  Requiring them to bear the burden of their employer’s choice would be contrary to the objective of protecting the safety and health of workers pursued by the directive, which includes the necessity of guaranteeing workers a minimum rest period.”

This decision (although dealing primarily with workers without a fixed or habitual place of work), as well as the survey performed by Regus seem to strive for broadening of the employees’ protection within the single market of the EU.  Whether similar studies will be performed in other states and whether similar cases (potentially with a broader scope of application) shall be initiated before ECJ, it remains to be seen.  Chances are, the abovementioned conclusions will hardly pass unnoticed by the labor unions within the labor market of Europe.

 

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Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).

The journeys made by workers without fixed or habitual place of work between their homes and the first and last customer of the day constitute working time, Court of Justice of the European Union PRESS RELEASE No 99/15 Luxembourg, 10 September 2015;

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