作者:金杜律师事务所

我们为您带来7月份有关欧洲法院将无固定地点工作者的上下班在途时间计为工作小时潜在审判的最新信息。

We updated you in July about a potential ruling from the European Court of Justice (the “ECJ”) that travelling time to and from work might count as working time for some peripatetic workers.

欧洲法院的判决现已确认

The ECJ has now confirmed that position.

该判决已引起媒体的广泛报导,包括在头条标题中暗示上下班在途时间属于“工作”范围。但法院的判决相当有限:只涉及无固定地点工作者报告每个工作日的开始和结束。在这种情况下,无固定地点工作者当日的行程都是由雇主决定,从家里出发后就开始有效地执行雇主的各项指令。他们并不像有固定地点的工作者那样,能够搬到距工作地点较近的地方或使用不同的交通工具。对于无固定地点的工作者来说,他们几乎没有什么能够减少在途时间的方法。因此,欧洲法院认为考虑到以健康和安全为目标的工作时间指令,无固定地点的工作者每日执行第一项任务和最后回家的在途时间应包括在工作时间内。

The decision has provoked widespread press coverage including headlines implying that travelling to work “is work”, but the court’s ruling was fairly limited: it related only to workers with no fixed workplace to report to at the start and end of each working day. In this case, the workers’ itinerary was dictated to them by their employer on a daily basis so they were effectively at their employer’s disposal as soon as they left home. Unlike an employee with a fixed base, who could move closer to work or use a different mode of transport, there was little these workers could do to minimise travel time. As a result the ECJ found that their working time included the journeys to the first appointment of the day, and home again at the end, taking into account the health and safety aims of the Working Time Directive.

雇有无固定地点工作者的雇主,例如,根据雇主指令无需到基本工作地点上班,而是将前往许多不同地点作为部分工作的派送员、护理和维修人员,应该解决当前判决所带来的影响。这可能包括以下的额外义务:

Employers of mobile or peripatetic workers, such as delivery, care or maintenance staff who do not attend a base location but travel as part of their work to a number of different locations as their employer dictates, should address the impact of this ruling now. This may include the following additional obligations:

  • 给予无固定地点工作者额外的休息时间,以便反映其延长的“工作日”,这可能导致需要更多员工去做尚未完成的工作;

additional rest breaks for the mobile workers to reflect their longer “working day”, potentially entailing the need for more staff to pick up any slack;

  • 增加工资开支,这取决于工作者的合同条款;

increased pay obligations, depending on the terms of the workers’ contracts;

  • 一些雇主可能担心这一判决容易受到滥用,一些雇员为私事在回家的途中故意绕路,以此延长表面的“工作时间”;因此建议设立相关程序解决此类问题。

some employers may be concerned that this ruling is open to abuse, with workers taking detours on the way home to conduct personal business thereby extending their apparent “working time”; it may be advisable to put in place procedures dealing with this.

该判决对欧洲各国的确切影响不尽相同,具体取决于如何实施《工作时间指令》。这不会是故事的结尾 – 该判决可能会为进一步定义职务涉及流动因素的雇员工作时间范围开启一扇大门。

The precise impact will vary across EU countries, depending on how they have implemented the Working Time Directive. This may not be the end of the story – this ruling may open the door to further attempts to redefine the scope of working time where staff have a peripatetic element to their duties.