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27 June 2018
In a 4 June 2018 judgment, the Supreme Court concluded that time spent travelling on an employer's orders constitutes working time.(1) This conclusion is in line with the European Free Trade Association (EFTA) Court's advisory opinion in Case E-19/16 and has ended a four-year legal battle (for further details please see "EFTA Court confirms that travel time is working time"). The judgment will have a broad impact on the Norwegian labour market, as it raises the level of protection available for employees.
The Supreme Court clearly stated that the legal test for determining whether a time period constitutes working time or a rest period requires an evaluation of whether the three criteria included in the definition of 'working time' provided for in the EU Working Time Directive (2003/88/EC) are met. If so, the time period must be considered working time. Further, the court agreed with the EFTA Court's opinion that travel which is ordered by an employer and meets the three criteria should thus be considered working time. The other duties that the plaintiff performed in the time periods disputed in the case at hand were not necessary to reach this conclusion; thus, the judgment is relevant to all employers that order their employees to travel.
The court also considered the level of compensation, as regulated in the collective agreement, that the employee in the present case was entitled to receive. On the basis of his duties, the court concluded that he was entitled to compensation for overtime for one of the disputed time periods. The other periods had been correctly compensated with the lower level of compensation available for travel.
Both the EU Working Time Directive and the Norwegian Working Environment Act are flexible instruments, which means that it is possible to adapt working time regulations to company needs. The Supreme Court's judgment may lead to more agreements on working time at the company level and new regulations on collective agreements in order to secure the required level of flexibility.
For further information on this topic please contact Merete Furesund or Tore Lerheim at Homble Olsby Advokatfirma AS by telephone (+47 23 89 75 70) or email (firstname.lastname@example.org or email@example.com). The Homble Olsby Advokatfirma website can be accessed at www.homble-olsby.no.
(1) Judgment HR-2018-1036-A, available here.
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