As casualisation strategies proliferate in the wake of the global crisis, techniques are being devised to exclude discrete time-periods from the working day. Travel time is a disputed zone, especially at the lower end of the labour market. Most prominently, in the home care sector there are signs of substantial non-payment of time spent by carers travelling to the homes of service-users. The status of travel periods is beginning to be tested before the courts, most recently in the Court of Justice of the European Union (CJEU) judgment in Tyco (Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL) .
Travel as working time: the unitary model sustained
Tyco concerned the travel time of workers with no fixed workplace. These technicians covered substantial distances to install and maintain security systems for two Spanish firms. Travel between customers was recognised as working time, but not between home and the first and last clients of the day.
The CJEU was asked whether the latter periods qualified as “working time” under the Working Time Directive (WTD), Article 2(1) (“any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties…..”). If so, the Directive’s mandates on weekly hours, daily and weekly rest etc. would apply.
Tyco was a sequel to a protracted skirmish over the legal classification of on-call periods (Simap; Jaeger; Dellas; Vorel; Grigore). In response to repeated challenges, the Court upheld a unitary conception of working time that embraces the expanse of activities that comprise any job, both activity and availability, including on-call hours.
In Tyco, the Court extended this analysis by ruling that home/client travel met the WTD’s definition. The decisive factor was that the workers were required to be physically present at a place determined by, and to be available to, the employer. The Court rejected a ‘productivity regulation’ model, which configures time-periods as working time only when devoted to tasks deemed core to the job. It dismissed Tyco’s argument that the technicians were not carrying out their activity or duties while travelling, which was an intrinsic element of the job.
Wage regulation: the boundary of the unitary model
Tyco is of immediate significance to European employers, and promising for sectors in which home/client travel is contested (although weakened where the weekly limit can be displaced by ‘individual opt-outs’).
In cementing the unitary model in working time regulation, however, the CJEU highlighted an alternative path towards casualisation. It reiterated its customary stance that the WTD cannot be subordinated purely to economic considerations. Tyco could, however, determine remuneration for home/client travel. The Directive regulates working time; wages are the province of Member State law.
The Court was evoking a limit on the EU’s competence: the exclusion of pay by the Treaty on the Functioning of the European Union, Article 153(5). This exclusion was alluded to in the on-call decisions. Yet the regulatory strategy suggested in Tyco is of a different tenor.
The on-call jurisprudence envisaged different wage-rates for on-call and call-out periods: Vorel, para 35. In both Tyco and Vorel, the Court contemplated lower wage-rates for periods that met all of the conventional working time criteria. Yet in Vorel, the (questionable) goal was to distinguish episodes of inactivity. In Tyco, the Court had concluded that driving was an “activity or duty.” The CJEU therefore envisaged lower wages for wholly-active periods.
The Court, then, signalled that home/client travel time can be unremunerated (e.g. UK National Minimum Wage) or paid at a lower rate. It also highlighted that temporal bifurcation in wage regulation is a path to fragmentation compatible with EU law.
This brand of fragmentation is increasingly reflected in techniques that drain waged-time from the working day: ‘zero hours’ contracts, fragmented schedules, non-compliance etc. Given these trends, a preferable approach is to sustain the unitary model by counting working hours as working time for all purposes, including remuneration. This ‘reconstructive’ strategy mitigates against spiralling fragmentation. It also regulates for work/family by appropriately remunerating all periods that workers spend apart from crucial dimensions of their lives.