In November 2017 the European Free Trade Association (EFTA) Court delivered an advisory opinion in Torbjørn Selstad Thue v the Norwegian Government (E-19/16) to the Norwegian Supreme Court stating that necessary travel time is classified as working time in relation to Article 2 of the EU Working Time Directive (2003/88/EC). The EFTA Court is equivalent to the European Court of Justice (ECJ), thus making the decision relevant for countries in both the European Union and the European Economic Community. The EFTA Court decision corresponds with the ECJ ruling in Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL (C-266/14), but provides a clearer definition of 'working time'. Together, the two cases clearly show that time spent on travel ordered by the employer constitutes working time and will affect how working time is calculated throughout Europe.
The advisory opinion answered the request made to the EFTA Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by the Supreme Court of Norway in Thue (2016/928).
The national case concerned a policeman that worked in a rural police station in Norway. Between 2005 and 2014, he was also a member of a special response unit in the police district and his duties included armed response actions and escort assignments in various locations throughout the district. The case concerned three such assignments across different locations. The driving time between the policeman's home and the assignments varied between one and three hours. Most of these journeys were approved by the Norwegian government as constituting travel time, entitling the employee to either time off or a monetary payment, but not as working time. The employee challenged this classification before the Norwegian courts and argued that under the Norwegian Working Environment Act travel time is classified as working time.
Section 10(1) of the Working Environment Act defines 'working time' as "time when the employee is at the disposal of the employer". 'Off-duty time' is defined as time when the employee is not at the disposal of the employer. Section 10(1) implements Article 2 of the Working Time Directive and the definitions should be interpreted in accordance with the definitions provided in the directive.
The Supreme Court referred the following three questions to the EFTA Court:
- Is the time spent on a journey ordered by the employer, to and from a place of attendance other than the employee's fixed or habitual place of attendance, when such travel takes place outside normal working hours, to be considered working time within the meaning of Article 2 of the EU Working Time Directive?
- Insofar as travel (as described above) is not by itself sufficient to be classified as working time, what is the legal test and the relevant elements to be considered in the assessment of whether the time spent on travel should be deemed to constitute working time? As part of this question, an opinion is requested on whether an intensity assessment should be made on the amount of work performed while travelling.
- Do the above questions have any bearing on how often the employer specifies a place of attendance other than a fixed or habitual one?
In its advisory opinion the EFTA Court recalled that the purpose of the Working Time Directive is to lay down minimum health and safety requirements for the organisation of working time. Further, the court emphasised that in the directive the definitions of 'working time' and 'rest periods' are concepts that are mutually exclusive. Thus, the question concerns whether the criteria in the definition of 'working time' in Article 2(1) of the Working Time Directive is met.
Article 2(1) of the Working Time Directive states that in accordance with national laws and practice, working time is considered to be any period during which:
- a worker is working;
- a worker is at the employer's disposal; and
- a worker is carrying out his or her activity or duties.
In accordance with the ECJ ruling in Tyco, the EFTA Court found that all three elements of Article 2(1) were met. As in Tyco, the court found that travel is a working task when it is ordered by employers, thus meeting the first criteria in the definition of working time in the directive. Further, the court refuted the employer's submission that the decision in Tyco should be limited to employees without a fixed or habitual place of attendance. Such an interpretation would distort the concept of 'working time' and jeopardise the aim of the directive to protect the safety and health of workers. Any journey to and from a location other than the worker's fixed or habitual place of attendance can be deemed to have begun and its return to have ended either at the worker's home or his of her fixed or habitual place of work, whichever is more relevant in the circumstances.
The second criteria under the definition of 'working time' is that the worker must be at the disposal of the employer during that time. As in Tyco, the court stated that in order for a worker to be regarded as being at the disposal of his or her employer, the worker must be placed in a situation in which he or she is legally obliged to obey the instructions of and carry out activities for that employer. In addition, the court added that the intensity of the work performed by the worker and his or her output are not part of the criteria of 'working time' under the definition provided by the Working Time Directive.
With regards to the third criteria, the court stated that:
"It is inherent to requiring a worker to be present at locations other than his fixed or habitual place of attendance that it denies the worker the ability to determine the distance of his commute. It is, therefore, immaterial how frequently the employer specifies a place of attendance other than the fixed or habitual one, unless the effect is to transfer the employee's place of employment to a new fixed or habitual place of attendance."
The court conclusively found that travel time in itself constitutes working time if the travel is ordered by the employer. Some employers have argued that the inclusion of travel time in the concept of working time may lead to inexpedient results. However, the court did not agree with this argument. Including necessary travel time in the concept of working time is inevitable in order to protect the safety and health of workers. It is the employer's responsibility to put in place the necessary monitoring procedures to avoid any potential abuse by a worker.
It is up to the Supreme Court to decide how this decision will affect the understanding of working time in Norway. The advisory opinions from the EFTA Court are not binding for the national courts, but are "advisory". However, when interpreting European Economic Area law, the Supreme Court must pay particular attention to what the court has stated and ordinarily, the court's opinion cannot be waived.
If the Supreme Court follows the EFTA ruling, this will have a great effect on the calculation of working time in Norway. For many workers, travelling outside of normal working hours is not recognised to constitute working time, which leads to longer working hours than agreed in employment contracts. As a result, this judgment will have an effect on the remuneration strategies of Norwegian employers.
The national case has been pending, while the EFTA Court decision was being considered. The final hearing at the Supreme Court will take place in May 2018.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
For further information on this topic please contact Merete Furesund at Homble Olsby Advokatfirma AS by telephone (+47 23 89 75 70) or email ([email protected]). The Homble Olsby Advokatfirma website can be accessed at www.homble-olsby.no.
