The question “What is part of working time?” regularly occupies the German labour courts and also the European Court of Justice.
After several decisions have been made in recent years on the treatment of on-call duty as well as travel and changing times as working time, the Federal Labour Court dealt with the question of the extent to which travel time is part of working time in autumn 2018.
Federal Labour Court ruling of 17 October 2018
In the case at issue, an employee bound by a collective bargaining agreement demanded remuneration for the entire travel time spent for a business trip abroad. The special thing about the case was the fact that the employee took a detour at his own request and was therefore on the road longer than necessary. The judges made it clear that the travel time, but only the necessary working time, was subject to remuneration. This is in line with the provisions of the current collective agreement. The ruling came as little surprise to many experts. It should be an occasion to take a closer look at the topic of travel time and working hours.
Distinction between working time under remuneration law and occupational health and safety law
The question of working hours has a component in terms of remuneration law and occupational health and safety law. In addition, to observe collective agreements, works agreements and individual agreements in employment contracts.
Travel time and occupational health and safety law
First of all, against the background of the Working Hours Act, it must be clarified to what extent longer business trips lead to occupational health and safety problems. According to the current regulations, the daily working time may not exceed 10 hours and the weekly working time may not exceed 48 hours. It is undisputed that the daily commute from the home to the regular place of work is not working time. However, if the employee does not have a fixed place of work (e.g. customer service technician), the travel time from the home to the first customer and the way home in the evening are considered working time. Different cases are also conceivable in the case of business trips by employees. If the employer determines that the business trip must be made by public transport (e.g. train journey) and the employee does not have to do any work during the trip (e.g. studying files), the travel time is not considered working time within the meaning of occupational health and safety. The legal situation is different if the employee studies files during the trip or drives the car himself. In these cases, working time exists; the maximum limits for daily and weekly working hours must be observed.
Travel time and remuneration law
Whether travel time is to be remunerated is generally based on the relevant provisions of the German Civil Code (BGB) and the underlying employment contract. According to Section 611 I of the German Civil Code, the employer must remunerate all services provided by the employee that are directly related to his or her work or to the manner in which it is performed. Travel times during normal working hours are generally to be remunerated. No separate regulations are required for this. In the case of travel times outside normal working hours, there is initially no entitlement to remuneration. However, such a claim for remuneration, which is then statutory, may arise in individual cases. This requires a decision on the facts by the competent court. In doing so, the circumstances of the individual case must be taken into account. Compared to a customer service technician, it is more reasonable to expect that such travel time outside normal working hours is not remunerated separately.
Collective agreement, works agreement, employment contract as a basis for regulation
Collective agreements, works agreements or employment contracts often regulate the above questions. These regulations take precedence over the statutory regulations insofar as they do not lead to a deterioration for the employee.
Non-compliance with working hours – a trivial offense?
Especially in the current good economic situation of many companies, it is not uncommon for their employees to be ordered to work overtime due to the order situation and a lack of skilled workers. However, exceeding the maximum limits of the legally prescribed daily or weekly working hours – for example through travel time to be credited – is not a trivial offence. In addition to fines, there is also a risk of criminal proceedings and recourse claims by the employers’ liability insurance association in the event of accidents at work and commuting in connection with exceeding working hours.
Recommendations for action for companies
Even though the BAG ruling of 17 October 2018 concerned a special case (employees bound by collective bargaining agreements with an unusually long travel time abroad), all companies should take this ruling as an opportunity to put their existing collective and individual law regulations on the treatment of travel time as working time to the test. Doing nothing is probably the worst option. Employer-friendly solutions can also be found through works agreements and employment contracts. Existing business travel regulations should be reviewed to see whether adjustments to occupational health and safety law (e.g. compliance with the statutory maximum limits for working hours) need to be made.
How is the accounting of travel time regulated in your company ? What special features should be considered? We look forward to your comments.
Image source: Unsplash, Photographer: Reginar
