Germany: Scheduled Journeys Between a Work Site and a Meeting Point Specified by the Employer are Considered Working Time in Terms of the EU Working Time Directive

The time spent on outward and return journeys, which workers are required to undertake as a group in order to travel from a specific place, determined by the employer, to the place where the essential work is performed, must be regarded as ‘working time’ in terms of the EU Working Time Directive. This applies in particular if the journeys are made at a time specified by the employer and in a vehicle belonging to that employer.

The European Working Time Directive defines “working time” as any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice. In contrast, “rest period” means any period which is not working time. There is no such thing as something between working time and rest period, but a specific period of time can only be qualified as either one or the other.

The Court of Justice of the European Union (CJEU) had to rule on whether the time spent by employees at the beginning and end of a working day traveling in a company vehicle from a meeting point to the place of work where they perform their duties and back to the meeting point should be considered working time in terms of the Working Time Directive.

 

Background

The case concerned Spanish biodiversity workers carrying out conservation work in natural micro-reserves in Spain. The workers travelled from their respective homes to a designated base, being a fixed reference point, using their own means of transport and were required to arrive at a certain time. From base, the workers were transported collectively in a company vehicle, driven by one of the employees and equipped with the necessary tools and equipment, to the designated work site within the micro-reserve. Upon completion of work, the workers were transported back to base in the company vehicle and travelled home independently.

The employer recorded the outward journey as working time, while the return journey was considered rest period. The trade union initiated collective legal action against this practice, arguing that both journeys should be regarded as working time. The Spanish labour court referred the case to the CJEU asking whether the time employees spend travelling in the company vehicle at the start and end of the working day – from the base to the work site where they perform their duties and back to the base – qualifies as working time.

 

Key Issues

The European Court of Justice ruled that journeys made by employees from a meeting point specified by their employer to their place of work and back are considered working time in terms of the Directive. This applies in particular if the journeys are made at fixed times and in a vehicle belonging to that employer.

The CJEU examined the three essential characteristics of the term “working time” and concluded that all requirements were met. In its reasoning, the Court stated that the modalities of the outward and return journeys of the employees are determined by their employer, who, among other things, determines the means of transport used for these journeys, the place of departure and arrival on the return journey, the time of departure, and the destination. Accordingly, there was no fixed or habitual place of work, so it could be assumed that the employees were performing their work or carrying out their duties during their journeys from the base to the relevant place of work and back. In the opinion of the CJEU, the circumstances also meant that the employees were available to their employer: the employees concerned did not have the opportunity to freely dispose of their time and pursue their own interests during the necessary travel times.

In earlier rulings, the CJEU had already stated that in the case of employees who do not have a fixed place of work and whose work involves constant travel, it can be assumed that travel time qualifies as working time. This is because travel is an integral part of the nature of work performed by an employee who does not have a fixed or usual place of work, so that the place of work of such employees cannot be limited to the places where they physically carry out their work in between phases of travel.

Practical Points

• The ruling means a further tightening of the definition of what constitutes “working time” in terms of the EU Working Time Directive. This distinction is relevant because any time qualified as working time has to be taken into account in terms of working time compliance. In Germany, the working time of employees on working days must not exceed eight hours as a rule, or ten hours in exceptional cases. After the end of their daily working time, employees must have an uninterrupted rest period of at least eleven hours as a rule.
• Employers employing employees with significant travel times as an integral part of their duties need to be cautious as to which times must be considered working time in terms of working time laws. In particular, the CJEU did not distinguish between the employee driving the company vehicle and the employees riding along as passengers but considered the travel times working time for both groups.
• The qualification of a time period as working time in terms of working time laws does not necessarily mean that this time period also must be subject to (full) remuneration, but there is some leeway for deviating agreements in this regard, depending on the concrete constellation.