Working hours

Does time to and from work constitute working time?

Out of 100 people randomly selected on the streets of Nairobi, more than 50 hate their jobs.  This is a predicament our labour industry has failed to cure. The reasons for hating their jobs vary: terrible bosses, unfair policies at work, poor pay, terrible colleagues, among many others.

Other people hate their jobs because their jobs put them in a rush of the 8-5 work system where they don’t earn much or even grow their careers.

But what is with this 8-5 system? Is it really fair to the employee?

Ordinarily, many people spend 9 hours at their work place. It could be behind a desk or in the field, or a combination of both.

For some jobs, those 9 hours of work do not include the time the employee is on the journey to the place of work.

The Court of Justice of the European Union ruled otherwise: “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” PRESS RELEASE No 99/15 Luxembourg, 10 September 2015.

The rationale of the court’s ruling is that excluding the time spent on the journey from the working time is contrary to the intent of EU law of protecting the safety and health of workers.

Facts

Tyco Integrated Security and Tyco Integrated Fire & Security Corporation Servicios (‘Tyco’) carry out, in the majority of Spanish provinces, a business that involves installing and maintaining antitheft security systems. In 2011 Tyco closed its offices in the provinces and assigned all its employees to the central office in Madrid (Spain).

The technicians employed by Tyco install and maintain security equipment in homes and on industrial and commercial premises located within the geographical area assigned to them, so they have no fixed place of work. That area consists of all or part of the province in which they work but sometimes, the technicians are required to work in more than one province. The workers each have the use of a company vehicle for travelling every day from their homes to the various places of work and to return home at the end of the day. The distances between the workers’ homes and the places where they are to carry out work vary a great deal and are sometimes more than 100 kilometres, taking up to three hours to drive. In order to carry out their duties, the workers are each provided with a mobile phone which they use to communicate remotely with the central office in Madrid. On the eve of their working day, the workers receive a task list identifying the various premises that they are required to visit the next day within their geographical area of work and the times of their customer appointments.

Tyco counts the time spent travelling between home and customers (i.e. the daily journeys between the homes of the workers and the premises of the first and last customers designated by Tyco) not as working time, but as a rest period. Tyco calculates daily working hours by counting the time elapsing between when its employees arrive at the premises of the first customer and when they leave the premises of the last customer; thus, only the period of work on the premises and of the journeys between each customer is taken into account. Before the closure of the regional offices, however, Tyco used to count the daily working time of its employees as starting when they arrived at the office (the employees then picking up the vehicle they were to use and receiving the list of customers to be visited and the task list) and ending when they returned to the office in the evening (to leave the vehicle there).

With the matter currently the subject of judicial proceedings before it, the Audiencia Nacional (National High Court, Spain) sought the opinion of the European Court of Justice on whether the time spent by the workers travelling at the beginning and at the end of the day must be regarded as working time within the meaning of the directive.

Judgment

In the 10th September judgment, the European Court of Justice declared that, where workers, such as those in the situation at issue, do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes working time within the meaning of the directive.

It was therefore considered that where workers are sent out to work in the field, then those workers are carrying out their duties over the entire duration of the journey because those journeys are a necessary means of carrying out their duties. “Not taking those journeys into account would enable Tyco to claim that only the time spent carrying out the activity of installing and maintaining the security systems falls within the concept of working time, which would distort that concept and jeopardise the objective of protecting the safety and health of workers”.

The court also noted that the journeys the workers make to or from clients were previously part of working hours before they abolished the regional offices, since the workers would previously leave the regional office to go and perform their duties at the allocated clients’ premises. “The fact that the journeys of the workers at the beginning and at the end of the day to or from customers were regarded by Tyco as working time before the abolition of the regional offices also shows that the work consisting in driving a vehicle of a regional office to the first customer and from the last customer to that office was previously among the duties and activity of those workers”.

Yet the nature of those journeys has not changed since the abolition of the regional offices. It is only the departure point of the journeys that has changed.

It was also noted by the court that while on those journeys, the workers were at the disposal of the employer. While on the journey, the worker could act on the instructions of the employer, the employer who would change the order of the customer, cancel the order or even add an appointment. During those journeys therefore, there workers were unable to use their time freely and pursue their personal interests.

More so, the court considered that the worker on a journey is actually working given that travelling is an integral part of being such a worker. The court also insisted that the place of work cannot be reduced to the physical location of work, at 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”.

Analysis

Do not get this twisted.

This decision was made only in light of employees who do not have a fixed place of work.

More so, this happened in the European Union and not Africa. Such jurisprudence has not yet reached our part of the world. This is not to discourage you though.

There are many institutions, including your labour organization which can champion for such changes in our labour laws. Our courts are open to all citizens and duly registered entities and there is no reason why this should not be taken up, as soon as possible, if you and other employees you know and receiving that kind of treatment from your employer.

What the European Court of Justice has done is point out the exploitation of workers by their employers in calculating their working hours. At the beginning of this article, I asked if the 8-5 system is fair. Yes, if you have a fixed place of work.

BY SAMALI BITALA

This article appears in our newsletter, The Deuteronomy Vol 6, Issue 4, of September 23rd 2016

To receive The Deuteronomy in real time, click HERE

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