The Supreme Court sets criteria on working time: the return journey from the last client does not count as a working day. There is no business control or obligations during the trip, so the general rule of article 34.5 of the Workers' Statute is applied, which requires being at the job to start or end the day.
The ordinary appeal filed by the company against the ruling handed down by the Social Chamber of the National Court is resolved (nª 53/2023, dated April 24), in procedure 45/2023, promoted through a collective dispute lawsuit filed by a union.
The defendant company is dedicated to the manufacture of elevators, escalators, as well as their spare parts and accessories. Labor relations are governed by the company's collective agreement. The conflict affects workers in charge of the installation and maintenance of lifting equipment in private, commercial and industrial facilities throughout the national territory.
Technicians have a company vehicle, although they can also use their own private vehicle. Every day they travel from their home to the assigned client to start the day, finishing their tasks with the last client of the day.
The company has implemented a time registration system through a PDA(mobile terminal). For remuneration and working day calculation purposes, the trip from the worker's home to the first client of the day is considered effective working time, but the return time from the last client to the home is not counted.
The question to be resolved It consists of determining whether the journey at the end of the day from the last client to the worker's home should be considered working time for the purposes of working hours and remuneration.
The National Court upheld the union's demand and ordered the company to recognize said displacement as work time. It considered that the trip from the last client to the home was not working time, based on the worker's power of self-organization and that it was not proven that workers have an obligation to return to their home after serving their last client.
Against this decision,The company filed an appeal, based on a single reason: the alleged erroneous interpretation of article 34.5 of the Workers' Statute and article 2.1 of Directive 2003/88/EC, relating to the organization of working time, interpreted in accordance with the doctrine of the Court of Justice of the European Union (CJEU) in its ruling of September 10, 2015 (Tyco case, C-266/14). In the Tyco case, the workers received the route sheet with the different centers they had to visit one day in advance and there was no fixed work center.
The union challenged the appeal alleging that there was not sufficient proof that the workers had autonomy to organize their workday or determine the order of their visits.
The Public Prosecutor's Office ruled in favor of dismissing the appeal, considering that the work activity is carried out exclusively in the clients' homes and with the use of company vehicles, so the movement was part of the process of carrying out the activity. Consequently, it had to be counted as working time in accordance with the doctrine of the CJEU in the Tyco case.
The company alleged that the doctrine of the Fourth Chamber of the Supreme Court had not been correctly interpreted, specifically the sentences of December 2, 2020 (rec. 28/2019), June 18, 2020 (rec. 242/2018) and December 4, 2019 (rec. 188/2017).
The Supreme Court analyzes the applicable regulations, especially article 34.5 of the ET, which states that “ "Working time will be calculated so that the worker, both at the beginning and at the end of the daily shift, is at his or her workplace.". It also examines Article 2.1 of Directive 2003/88/EC which defines working time as any period in which the worker is at work at the disposal of the employer and in the exercise of his activity or functions.
In the Tyco case (C-266/14), the CJEU considered that trips between home and clients are working time since there was no fixed center, the workers provided services on an itinerant basis.. In this case, employees leave home following company instructions, use company vehicles and tools, and cannot freely dispose of that time (for example, they cannot perform personal tasks).
The jurisprudence of the Supreme Court distinguishes that trips are not considered working time when there is no organizational change or active instructions during them, while they are recognized as such when the worker moves directly from their home with instructions, vehicle and routes controlled by the company, without passing through a previous work center.
In this resolution, the Supreme Court rules out applying the Tyco doctrine. It has not been proven that workers have work obligations during travel at the end of the day, nor that they are subject to instructions or active planning. The fact that the company has been recognizing as working time and for remuneration purposes, the time invested by workers in traveling from their private home to the first client of the day, is not decisive to conclude that, so is the time spent traveling from the last client to their home at the end of the day.
Therefore,The general rule of article 34.5 of the ET is maintained: travel to and from work does not constitute working time, unless at that time the worker is at the disposal of the company, subject to possible instructions from the employer, changes in client orders, cancellations or new appointments or if for any reason exceptional circumstances arise. In this case, the availability of the workers for the company on the return journeys was not accredited, therefore said time cannot be counted as a working day.
