New Supreme Court ruling on travel and working time

The entry into force of the obligation to register the working day has raised many questions, concerning which periods are considered as effective working time and which are considered as rest time. In a new ruling on the matter, the Supreme Court considers that time spent travelling from the entrance of the company's premises to the employee's specific workplace is not effective working time.

In its ruling dated 19 November 2019, the Supreme Court (hereunder, the "SC") analyses the case of the employees assigned to the Fire and Rescue Service at the airport of Palma de Mallorca. For the purposes of the classification of working time, the provision of these services is characterised by two specific notes:

1. Services are provided on a shift basis, and incoming employees are required to relieve co-workers who precede them in the shift.
2. Upon arrival at the airport, employees must go to a specific facility, where takes places the shift change and where are informed of any updates, as well as the latest news on equipment and vehicles. The travel between the arrival at the airport premises and the specific facility takes place in a collective vehicle provided by the company.

As for the time of shift change, the applicable Collective agreement establishes a period of 7.5 minutes (both at the entrance and at the exit) for its realization, which is considered as effective working time. The excess time used for this task is considered as overtime, and is compensated with the corresponding resting time. However, the Collective agreement does not establish the same classification for the time spent travelling from the access to the airport site to the specific facility where the shift change takes place, as the Collective agreement does not specify whether this should be considered as working time or rest time.

In view of the divergent treatment of these two periods by the Collective agreement, the employer had been considering the time spent on the shift change as effective working time, and the time spent on the internal travelling as resting time. Against this interpretation, one of the affected employees claims the remuneration corresponding the consideration, as overtime, of the time spent on travelling from the access to the premises site to the specific facility where the shift change takes place.

Both the Social Court No. 4 of Palma de Mallorca and the High Court of Justice of the Islas Baleares concluded that time spent on travelling internally should be considered as effective working time and, therefore, should be paid as overtime. According to both rulings, during this period the worker is at the employer's disposal, and everything that happens from the time the employee registers at the entrance to the airport premises has the consideration of activities necessary for the proper provision of services.

In response to these rulings, the company appealed in cassation for doctrinal unification, claiming that the Madrid High Court of Justice's ruling of 30 January 2015, which examined a case of fact very similar to the one in the appealed ruling, was contradictory. After admitting the existence of such contradiction, the SC analysed the legal regulations at national level (Article 34.5 of the Workers' Statute) and at European level (Article 2 of Directive 2003/88/EC of the European Parliament and of the Council, of 4 November 2003) that govern the definition of effective working time, as well as the relevant case law.

The national regulation is limited, for this purpose, to Article 34 of the Workers' Statute, which defines the effective working day as the time which, calculated on a daily, weekly or annual basis, the workers devote to the performance of their duties and in which they are "at work".

From a European perspective, Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 (hereinafter referred to as "the Directive") defines working time as “any period during which the worker is working, at the employer's disposal and carrying out his activity or duties” (Article 2.1 of the Directive). Rest time is defined, as opposed to working time, as “any period which is not working time” (Article 2.2. of the Directive). As the SC points out, there is no room for intermediate categories between these two concepts, so all time periods must be classified as either working time or rest time.

From the case-law analysis, the SC extracts a general rule, according to which it is not considered as working time the time that leads to starting or finishing the services. That is to say, in general, it is not considered to be working time the time periods spent on travel, preparatory acts, changes of clothing, acts of checking by signature or registration, transfer within the company from the garage where the vehicles of the unit are located, or similar. This general rule, as recognized by the SC, admits certain exceptions, such as the time spent picking up the uniform, or leaving the weapon used to perform the services, when this occurs, at the request of the employer, in a different place from the usual place of work. On the contrary, these periods are considered as effective working time.

From this triple analysis, the SC reaches the following general conclusions regarding working time:

• The intensity or directly productive nature of the activity does not determine the nature of time as working or resting time.
• When the employee is not free to choose his location or activity, but is at the disposal of the company, there is a presumption that it is working time.
• Presence on company premises is an indication of the nature of working time of that period.
• Travel time under the authority of the employer may be working time.

In view of the above considerations, and in the light of the specific circumstances of the case, the SC concludes that the time spent travelling from the entrance of the airport premises up to the specific facility where the shift change takes place is not effective working time, and therefore should not be remunerated as such. In particular, the SC considers that during this displacement the worker is not at the employer's disposal, but is carrying out a preparatory task. During this time, the worker is free to perform tasks unrelated to the employment relationship, such as resting, reading, talking to other colleagues or social networking.

With this ruling, the SC unifies doctrine on one of the many issues that arise in relation to the consideration of effective working time. The general criteria established in the judgment, as well as the analysis of national and European case-law carried out, clarify the interpretation of the SC on certain issues, but do not cover the multitude of underlying questions on this matter. Therefore, it is important to follow attentively the new pronouncements of the SC on this matter.