Travel time equals working time?

Created by Nina Senninger | |  Labor Law

The question whether travel time qualifies as working time which needs to be compensated is regularly discussed. This can be regulated in a collective agreement, employment contract or a works agreement. In most cases, however, there is no clear contractual regulation.

Now, the German Federal Labor Court (BAG – 5 AZR 553/17) had to decide whether travel times exceeding regular working hours must be compensated.

The plaintiff was a technical employee in a construction company and contractually obligated to work on building sites in Germany and abroad. The secondment agreement concluded between the parties did not include a regulation on the compensation of travel times. With regard to a trip from Germany to a Chinese project, he claimed the compensation of overtime. At his own request, he had booked, instead of a – shorter – direct flight in economy class, a flight in business class with a stopover in Dubai.

The BAG decided that travels to a foreign workplace and back within the scope of a foreign assignment are exclusively in the employer’s interest. Therefore, travel times must generally be compensated equal to working hours.

However, the court also decided that detours shall not be compensated. In general, the travel times for a direct flight shall be applicable.

However, due to a lack of sufficient findings of the lower court as to the scope of the actually required travel times in economy class, the BAG had to refer the case back to the Higher Labor Court and could not render a final decision.

To date, the decision is only available in the form of a press release. The reasons are expected to be published by Christmas. In light of this, it remains to be seen whether the BAG’s guiding principle, according to which travel times to and from foreign countries must generally be compensated, will apply in unrestricted form. It is not clear yet, on what grounds the BAG bases the claim for remuneration.

In practice this means that – also after publication of the reasons – one must exactly examine whether travel times must be compensated in each individual case.

In order to prevent uncertainties and disputes, it is advisable to agree upon corresponding regulations on the compensation of travel times. When making such arrangements in the employment contract one must in particular observe the requirement for transparency. Payment must not fall below the minimum wage, either.

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