The Audiencia Nacional, applying Community doctrine, declares that travel from the worker’s home to the customer’s home and vice versa are effective working time, so that it does not consider it possible to carry out the activity of the company without making this displacement.
Customer displacement and working time
Traditionally, technicians from a company dedicated to the maintenance of machinery at the customers’ home, come to their respective delegations, from which they begin their working day, which started at 8:00h hours and concluded at 17:00h. On a certain date, the company decides to start their day at 8:00 a.m. directly at the first customer’s address. To do this, it provides them with a GPS van, a laptop and a mobile that they must activate between 7:30 and 7:45 hours, depending on the distance from the customer’s home, to ensure that they are there at 8 hours. Also, from this date, the company allows them to stop working at 16:40 hours, so that they can arrive at their home at about 17:00 hours, counting as working time.
The trade union representation then decides to file a collective dispute lawsuit in which it requests that the excess of the day from 7:30 or 7:45 to 8:00 be declared to be effective workingtime, which is incorporated into the ordinary day and is therefore remunerated. The case under trial is the TYCO doctrine of the Court of Justice of the European Union; on the contrary, the undertaking considers that it is not applicable.
The question to bediscussed is therefore whether the time of travel domicile-customers constitutes working time and, therefore, whether that time is to be considered working time or rest period.
The Audiencia Nacional recalls that, the activity of the company could not be carried out without moving to the customer’s home, so that the movements,from the first to the last, are consubstantiating with the activity of the company. Not considering working time would mean distorting the concept of working time and undermining the objective of protecting the safety and health of these workers.
As in the Community jurisprudence, the Audiencia Nacional considers that the decision for workers to start the activity from their home instead of delegations has not changed the situation, only the place of departure; does not affect the obligation of workers to obey instructions from your employer. During these journeys, workers are subject to the instructions of their employer, who can change the order of customers or cancel or add an appointment; which means that, during the journey, workers cannot freely dispose of their time and devote themselves to their personal affairs, being available to the employer. In addition, workers also cannot misuse travel times, as their vehicles have a GPS, which allows the company to monitor the adequacy of such movements at no cost.
It also recalls the National Hearing which has been established that the company is currently billing, as before the change in the time-running regime, all the trips made by the technicians, which is a double enrichment,since it bills a time that does not pay its workers and increases in direct productive activity the time they previously spent on commuting within their working day.
On the other hand, the company recognizes as working time 20 minutes exit from work,which reveals that these travel times should be considered working time, as there is no reason to consider working time the journeys at the end of the day and not those of the beginning.
Therefore, it proves that these trips are working time,and demand is estimated.
Working time: inclusions and exclusions
Next, we classify what is included or excluded as “working time”:
> Included in working time
- time spent on mandatory medical examinations;
- the break of sandwich or coffee, when it has been recognized as ‘effective working time’ in the employment contract, in collective agreement or is allowed by the company;
- travel from the work center to different places where the provision of services is ordered, and their return;
- downtime not attributable to the worker;
- time spent in sports activities with volunteer clients organized by the company outside the working day;
- the time spent placing the mandatory personal protective equipment;
- the time spent picking up the uniform,
- paid permits;
- carrying out trade union functions;performing trade union functions;
- in the case of workers who do not have a work centre, the movement of the worker’s domicile and the centres of the first and last customers;
- time spent delivering and collecting the weapon (security watchdog);
- home or centre guard when no other activity can take place.
> Excluded from working time
- the time that, in the shift change, is spent transmitting the necessary information about the situation of patients;
- permits for their own affairs, which, when enjoyed, require the recovery of absence hours in order to achieve the annual count of the conventional day;
- time needed to sign;
- access and exit times of work;
- times of grooming and changing clothes;
- travel times from the garages where the company’s vehicles are to be collected, to the work center;
- time used in transport to the workplace;
- localizable guard if he should not soon reach the re-meeting point;
- travel to the company’s dining room;
- time of mere presence.
Is travel a working day?
If some of your workers need to travel to clients’ homes to develop their work… should travel time be counted as effective working time?
Here are some examples.
It’s effective work
Working time is calculated so that, both at the beginning and end of the dayon a daily basis, the worker is in his or her workplace.
- The time spent on tasks necessary to develop productive activity is considered effective working time. For example: the engine ignition, the time to transmit information in the shift change, the time spent decontamination… Etc.
- On the other hand, the time not necessary to develop the productive activity (such as changing clothes and personal grooming, the time of travel to the company’s premises, … etc.) it is not counted as effective workingtime.
But what if the worker has to move to a client’s home because that’s where he’s going to do his job? Can such a displacement be regarded as equivalent to travel from home to the workplace, so that it should not be counted as an effective working day?
In the case of one-off trips (for example, an operator who will perform a repair), the travel time to the customer’s dependencies is effective working time, so the day is counted from the moment the journey begins. But if the commuting starts before or exceeds the start of the working day (i.e. if the daily day exceeds the maximum of ordinary hours set by the Convention), the excess is considered overtime,which should be remunerated or compensated under the terms set out in the Convention.
If the work usually takes place at the customer’s home (e.g. security guards or commercial staff), the conclusion is different. Beyond the addition of this staff to a particular work centre, the work is carried out, by its very nature, at the customers’ home.
- If the worker has autonomy to organize the route, the start and end travel time is not considered effective work. But if during that time it is available to the employer (if the employer can vary his route, for example) it will be considered effective work.
- On the other hand, the travel time for fulfillment of company orders (for example, the obligation of vigilantes to store their equipment or weapons in a certain place), is considered effective working time.
Another common situation is one-off travel that requires overnight stays (for example, a worker who must travel to another city to hold some meetings). In this case:
- The time in which the journey is anticipated or delayed, as a result of the journey (e.g. to travel to the airport or train station) will be effective working time.
- But it will not be the time when the worker is kept waiting (for example, if after the management is complete, wait the next day to resume or return). During that time it is not available to the company (you can perform personal activities), so it does not compute as effective work.
The time of travel to the customer’s home is counted as effective working time, except in activities that, by their very nature, usually develop at the customer’s home.
If you have any questions or need any clarification about effective travel and working times, you can contact
any of our advisors so we can help you resolve it.