This is common practice in fieldwork: workers make their way to their first customer of the day straight from home. Following the last customer appointment, the workers go straight home again. A detour, i.e. a “pit stop” at the workplace, is usually avoided.
It is often disputed between employer and employee whether, and to what extent, these travel times need to be remunerated as working hours. The Federal Labour Court (Bundesarbeitsgericht, BAG) brought clarity in its ruling of March 18, 2020 (Ref.: 5 AZR 36/19). It affirmed the general duty to remunerate travel time. Any works agreement provisions to the contrary are invalid if the travel times involved can be attributed in full to remunerated working time on the basis of a relevant labor agreement.
Bound By the Collective Agreement
The plaintiff in the underlying case was employed as a service engineer in the field service of a company in Lower Saxony. Due to its membership in the employers’ association, this company was bound by the labor agreements for wholesale and foreign trade in Lower Saxony. These collective agreements also apply to this employment relationship.
There was also, however, a company agreement, according to which the travel times to the first and departure times from the last customer are not to be regarded as working time – if they do not exceed 20 minutes. If the trip takes longer, the excess of these 20 minutes is credited to a working time account. Under the terms of the agreement, the customer service engineer can be reasonably expected to work for 20 minutes each time. In the present case, however, the plaintiff demanded compensation or credits for 68 hours and 40 minutes travel time and which were previously disregarded due to the 20-minute rule.
Company Agreement Cannot Supersede Labor Agreement
In contrast to the lower courts, the BAG accepted the lawsuit. The clause in the company agreement could not supersede the provisions of the labor agreement. Pursuant to Art. 77, Subsection 3, Sentence 1, Works Consitution Act, compensation or other working conditions governed by a labor agreement cannot be the subject of a company agreement. Pursuant to the relevant industry-wide collective agreement (Manteltarifvertrag, MTV), all work performed by an employee in the performance of his or her main contractual duty is to be compensated with the basic remuneration under the labor agreement. The BAG stated that this includes the total travel time spent by field staff on travelling to and from the customer. The MTV does not provide an escape clause in favor of differing company agreements.
There are often compromises when it comes to crediting travel time in practice. According to the BAG’s ruling, they are often likely to be ineffective. Employers, insofar as they are subject to labor agreements, should review whether they may have concluded invalid company agreements.
