Tyco and the Norwegian Supreme Court case of Thorbjørn Selstad Thue v The Norwegian Government (E-19/16)

In 2015 the European Court of Justice ruled that time spent travelling to and from first and last appointments by workers without a fixed office should be regarded as working time.

The ruling came about because of an ongoing legal case in Spain involving a company called Tyco, which installs security systems (Federación de Servicios Privados del Sindicato Comisiones Obreras (CC.OO.) v Tyco Integrated Security SL, Integrated Fire & Security Corporation Servicios SA).

Tyco shut its regional offices in 2011, resulting in employees travelling varying distances before arriving at their first appointment. The distances between the workers’ homes and the places where they carried out work varied a great deal and were sometimes more than 100 kilometres, taking up to three hours to drive.

Tyco counted the time spent travelling between home and customers, not as working time, but as a rest period. The period of work on the premises and the journeys between each customer was taken into account as working time.

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 ending when they returned to the office in the evening (to leave the vehicle there).

The Court of Justice declared that time spent by those workers travelling each day, with no fixed company base, between their homes and the premises of the first and last customers designated by their employer constituted working time within the meaning of the directive. The Court took the view that the workers are at the employer’s disposal for the time of the journeys.

A recent advisory opinion of the EFTA (the Court of Justice for the Free Trade Association States Court) to the Norwegian Supreme Court in the case of Thorbjørn Selstad Thue v The Norwegian Government (E-19/16), came to a similar conclusion as in the ECJ’s Tyco case.

The relevant Working Time Directive (2003/88/EC) is incorporated into the European Economic Area Agreement, which means it applies in Norway. The EFTA found that the travelling time to and from work for a Norwegian Chief Inspector of the police, to carry out his duties as a police escort is also ‘working time’.

Interestingly the Court did not accept the respondent’s argument that the Tyco case is distinguishable from the Norwegian police case because Tyco applied to workers without a fixed or habitual place of work.

The reason for this view was that despite having a fixed place of work, employees still required the protection of the Directive in relation to adequate rest when working away from the office.

During the time of travel to an assignment directly from home, the worker “remains under the instruction of the employer, with the employer maintaining the right to cancel, change, or add assignments”, therefore they are at the disposal of the employer, constituting working time.

Impact for Employers

The decision in Tyco had a direct impact on the Organisation of Working Time Act, 1997 specifically in relation to rest breaks. In addition, the Norwegian case demonstrates the uniform view in this regard in relation to travel time.

However, the rule of direct effect will only apply to public sector workers. For private sector employees, there will have to be a legislative amendment to the Organisation of Working Time Act, 1997.

Similar to this was the change in the accrual of annual leave, while on sick leave, which came into law on the 1st of August 2015. That legislative update was the effect of a European Directive and it took a number of years before the legislation was passed here.

There are some preventative measures that employers may want to consider to offset a challenge to work practices in this regard;

• Have a clear policy in relation to working time for workers whose role is primarily based on the road visiting customers or clients, specifically in relation to daily rest breaks.
• Ensure there is an explicit clause in relevant contracts of employment stating whether travel time is counted as working time.
• Implement efficient scheduling systems to ensure that appointments are made as close as possible to the workers home for first and last appointments where possible.
• Ensure records are accurately recording start and finish times.

If you would like any further details in relation to travel time for employees, you can speak with a HR Consultant on 1890 253 369