What Constitutes Working Time?

The recent controversial Tyco decision of the Court of Justice of the European Union (CJEU) which found that travel time for workers between home and the premises of their first and last customers should count as working time as prescribed within the Working Time Directive is directly in conflict with the position in Ireland that such time is not considered to be working time.

The Tyco decision which was published by the CJEU on the 10th September 2015 determined that workers who travel between customer locations and do not have a regular or fixed place of work can factor in the time spent traveling between their homes and first and last calls of the day to count as working time.

This is contrary to the general practice in Ireland and indeed the legal position in which it is underlined in the National Minimum Wage legislation that such time spent traveling to and from home to places of work does not constitute working time.

The decision outlined that the Court believed that employees are actually available to carry out duties over the duration of such journeys to and from home and that to interpret otherwise would not be supportive of the importance of protecting the health and safety of workers.

The decision could in practice mean that employers may have to pay employees who do not have a fixed place of work for time traveling to and from work and that such time could count towards the general 48 hour maximum working week that is permitted under the Organisation of Working Time Act, 1997.  

The types of situations that the Tyco decision is likely to impact on include sales people and trades people who travel to various customer site as well as care workers.

The decision applies immediately to public sector workers but for the private sector the conflict with the current Minimum Wage legislation and Working Time Act will have to addressed through the matter being tested in the dispute resolution system.   In the meantime employers should consider how they schedule work for employees who do not have a fixed place of work and pay attention to the distance that is being traveled to and from first and last appointments.