Key Update: Working Time and Field Based Employees
In a very important update, an Advocate of the Court of Justice of the European Union (CJEU) has issued a significant preliminary ruling on working time rules in respect of filed based employees. A significant percentage of employers in Ireland will have filed based employees, particularly in sales functions, and as such it is very important that employers keep abreast of such developments. (Federación de Servicios Privados -v- Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA Case C-266/14)
Preliminary Rulings
The CJEU ruling was a “preliminary ruling”. This is important as a preliminary ruling is only an opinion, so to speak, of one CJEU Advocate General. Should the matter proceed to a full sitting of the CJEU then a different decision might be reached. However, it is very rare that a full sitting would reach a different outcome. As such, this ruling may be very indicative of how matters will develop in Ireland and Europe going forward.
Background and Key Issues
The case concerned workers who have the use of a company vehicle in which they travel every day from their homes to the places where they are to carry out the installation or maintenance of security systems. They used the same vehicle to return home at the end of the day.
The key question was whether or not the travel to and from the first and last customer constituted “working time”. The employer did not treat it as such and as such the employees were not paid for that time they spent travelling:
Three Key Criteria
The Advocate General stated that such travelling time should be included in the definition of working time. In doing so, he specified the 3 criteria for determining working time and that all of these had been satisfied for anything to be considered “working time”:
(1) a spatial criterion (to be at the workplace);
It was decided that workers who travel between locations, particularly those who travel directly to or from their home, cannot be said to have one specific workplace. Ultimately, it was decided that where such workers “use a means of transport to go to a customer designated by their employer, at whatever time during their working day, peripatetic workers must be considered to be ‘at work’…”
(2) an authority criterion (to be at the disposal of the employer); and
This criterion requires the employee to be “subject to the instructions and organisational power of his employer”. It was decided that this was satisfied as such “workers are in fact travelling to customers that have been determined by their employer and in order to provide services for the benefit of their employer.”
(3) a professional criterion (to be carrying out his activity or duties)
It was decided that as workers have no fixed place of work, travelling to and from sites must be seen as forming part of their profession and is essential for carrying out their activities and duties.
It is quite likely that any Rights Commissioner or Labour Court case concerning the working time of field based employees will now apply the above logic in reaching its decision.
What if Employees Abuse the Rule?
The Advocate General was quite strong in stating that concerns from employers about employees taking their time travelling to and from work, or taking the scenic route so to speak, does not justify not treating such travelling time as working time. In essence, the Advocate General was of the opinion that an employer can manage any abuse of this system through internal procedures, such as a disciplinary.
Employers going forward should be mindful of this and that field based employees will likely be entitled to accrue wages and working time (re: rest periods) from the moment they leave their homes.
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