In a Spanish reference for a preliminary ruling, the Court of Justice of the European Union (CJEU) was called to consider the issue of working and travelling time. The reference was made in the course of proceedings brought by the Spanish Federation of Private Sector Employees against two companies.

In advance of the decision of the CJEU, the Advocate General gave an opinion concerning the working time of peripatetic technicians. These technicians worked for two companies that operated in the sector of home and commercial security systems across Spain. The central office of these companies was in Madrid. The employees had no fixed place of work; each employee was given the use of a company vehicle and assigned the responsibility to cover a particular geographical area. They were given the working schedule on a daily basis.

The employing companies did not treat the first and last journey of the day as working time so the working hours were counted from the employee’s arrival at the first job of the day and ended when the worker left the premises of the last customer. The travelling distances from the employees’ homes to the place where they were to carry out work varied and were, at times, considerable.

Travelling time encroaches on rest periods

The workers challenged this classification before the Spanish courts, arguing that this was contrary to the EU’s Working Time Directive. They claimed that travelling time should count as working time for the purposes of that directive.

The companies, on the other hand, contended that working time must be tied with the activity of the provision of technical services, installing and maintaining security systems, and travelling time to and from home cannot be considered as such.

In dismissing the companies’ arguments, Advocate General Bot opined that where an employee has no fixed or habitual place of work, the time spent travelling from home to the first place of work and back home from the last place of work ought to be considered as working time.

He based his conclusion on the premise that peripatetic workers are required to work at different premises every day, and for such reason, travelling for those workers is inherent to the performance of their activity, in the same way as travelling between jobs during a normal working day.

The Advocate General noted that the directive does not provide for an intermediate category between ‘working time’ and ‘rest period’, so travelling time had to fall under one of the two categories. He applied three criteria previously developed by the CJEU to determine the classification of travelling time. The first is the spatial criterion – whether the employee was at the work place. The second is the authority criterion – whether the employees was at the disposal of the employer. The third is the professional criterion – whether the employee was carrying out activities or duties connected with the job.

In his opinion, the Advocate General deemed all three criteria to be met during travelling time. In relation to the first and third limbs of the test, travelling was deemed an integral part of the workers’ role. As regards the second limb, he held the view that as the workers were travelling to the customers that were determined by the employer, those workers were at the disposal of the employer and were subject to the authority of the employer when travelling to customers, in accordance with a pre-established daily schedule prepared by their employer.

In reaching this conclusion, the Advocate General was assisted by the directive’s objectives to protect health and safety of employees and, in particular, to ensure minimum rest periods that serve to compensate for fatigue arising from periods at work. Excluding travelling time from the calculation of the working time was deemed to encroach on that minimum rest period and undermined the function of rest periods, contrary to the objectives of the directive.

An analogy was drawn from the case law established by the Luxembourg Court in respect of the working time of drivers in the road transport sector. It has been established that a driver who travels from his home to the pick-up point for a vehicle cannot be considered to freely dispose of that travelling time, with the result that the time thus spent cannot be regarded as forming part of the rest period.

The judgment of the CJEU is expected later this year.

jgrech@demarcoassociates.com

Josette Grech is adviser on EU law at Guido de Marco & Associates.