The new regulations on the recording of working time is arousing a number of doubts in relation to their application. One of such doubts is whether or not travel time should be recorded as working time. To resolve the issue, we should ask ourselves whether or not the time devoted to travel should be considered as effective working time.
Given the lack of regulation of the issue by the Workers’ Statute and its binding nature for Member States, we must resort to the definition contained in article 2 of Directive 2003/88/EC, which considers working time as “any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice)”.
According to this definition, there are three clearly different situations:
- The time employed to travel to or return to an habitual place of work: it is unanimously agreed that this time employed should not be considered as effective working time. During this time, a worker is not at work, nor provides services, this interpretation being coherent with article 34.5 of the Workers’ Statute, which states that “working time shall be calculated in such a way that a worker is at his/her place of work at the beginning and at the end of the working day”.
- Travel to a work center or location that is not the worker’s habitual place of work. This issue is subject to debate. Whereas the High Court of Justice of Castilla-La Mancha, in its judgment of December 28, 2001, replied negatively to the question, the Supreme Court, in its judgment of June 24, 1996, considered that if travel takes place form an habitual work center to a different center where the worker is ordered to provide services, the time employed should be working time.
- Jobs in which travel forms part of the nature of the services provided or those that do not have a fixed place of work. The judgment of the Court of Justice of the European Union of September 10, 2015 (case C-266/14) concluded that the classification of travel time as working time depended on the existence of three constituent elements: if, during travel, a worker is exercising his/her activity or the functions of his/her position (if the travel is necessary to provide a service), if the worker is available to the employer during such time and if he/she performs his/her functions during travel to or from a client. These premises included the time employed to travel from home to a client’s location as working time, in the event the company had closed its provincial offices and the worker’s place of work became mobile instead of fixed. The issue therefore requires a specific analysis of each case.
The Guidelines of the recording of working time recently published by the Ministry of Labor, Migration and Social Security shed no light on this unclear issue. When asked the question relating to how to record a worker’s working time if he/she is displaced outside his/her habitual place of work, they state that the recording of working time “does not include intervals of availability to an employer, notwithstanding compensation by means of daily allowances or disbursements” and it is unknown whether or not the statement means that travel time is merely time available (and therefore not effective working time).
Further debate is guaranteed.
Garrigues Employment and Labor Department