A recent case of the Court of Justice of the European Union (CJEU) has raised an interesting question as to whether employees are entitled to be paid for time spent commuting to and from work where they have no fixed place of work?
The Tyco case involved a security company whose employees were employed to install and maintain security equipment at clients’ premises within a specific territory assigned to them. The employees had no fixed commute as their employer had closed down its regional offices. Instead, employees could be required to travel up to 100 km to their first job of the day, which depending on traffic could take up to three hours. The employer did not accept such travelling time was working time and instead deemed the working day to begin only when the employee arrived at the first client’s premises and finish when the employee left the last client of the day.
The CJEU disagreed with the employer and instead held that time spent travelling to and from work for employees who do not have a fixed place of work is working time for the purposes of the EU Working Time Directive. The CJEU stated that the employees were at their employer’s disposal during such time spent travelling.
The CJEU did not accept, however, that employees must necessarily be paid for this commuting time. It explained that the purpose of the EU Working Time Directive is to regulate the health and safety of employees and not to regulate remuneration (save as it affects annual leave provisions).
In Ireland, the Organisation of Working Time Act 1997 implements the EU Working Time Directive into Irish law. The Labour Court has considered the position of commuting in a number of cases. The Labour Court’s current position appears to be that time spent travelling to the place of work is not working time and the definition of ‘working time’ appears to only cover time when the employee is actually carrying out the activities of their employer. This position appears to conflict with the position as outlined by the CJEU in the Tyco case where the employee has no fixed place of work.
While the EU Working Time Directive and the decisions of the CJEU do not apply directly to private sector companies, the Labour Court will be influenced by the CJEU’s decision in the Tyco case. The definition of ‘working time’ in the Directive and the 1997 Act are similar.
Neither private sector nor public sector employers will be required by EU legislation or the Tyco decision to pay employees for this travel time. Whether an employer decides to do so in Ireland will be a decision for individual employers in line with their contractual obligations or subject to any collective agreement in place.
As regards calculating the Irish national minimum wage, the definition of ‘working time’ in the National Minimum Wage Act 2000 specifically excludes time spent travelling to and from the ‘place of work’. Unfortunately that Act does not define the ‘place of work’ and therefore the question can be asked whether the exclusion covers the position of employees who have no fixed place of work, such as in the Tyco case.
Finally, please note that workers involved in road transport are covered by separate legislation.
This article is intended to provide only general information for the clients and professional contacts of Maples and Calder. It does not purport to be comprehensive or to render legal advice
James Scanlon is Head of Employment Law at Maples and Calder’s Dublin office and was assisted by Sinéad Egan, Associate. Should you have any queries on this or any employment matter please contact James or your usual Maples contact.
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