The unanswered questions of travel time: The VAERSA ruling on the notion of working time (C-110/24)

Abstract

The classification of travel time under EU working time rules is one of the contested aspects of the Working Time Directive. The Court of Justice of the European Union's judgment in VAERSA (C-110/24) revisits this issue in the context of Spanish biodiversity workers who were required to travel daily in a company vehicle from an employer-designated base to changing work sites and back. Although the factual background closely resembles that in the earlier Tyco ruling, the case demonstrates that significant uncertainty still remains in national practice regarding work-related travel. The article argues that the decisive element in assessing travel time should not be the characterisation of the workplace as fixed or non-fixed, but rather the degree to which the worker remains under the employer's authority during the journey. Building on VAERSA, Tyco and related case law on stand-by time, the article identifies a set of relevant factors for evaluating travel time. This approach allows for a more nuanced assessment of diverse factual scenarios that cannot be adequately captured by a rigid focus on the existence of a habitual workplace. Finally, the article considers the practical and normative limits of the Court's approach, including employers’ organisational choices, Member States’ use of the opt-out from maximum working time, and the separation between working time and remuneration.

1. Introduction

In the VAERSA case ¹ Spanish biodiversity workers, on each of their workdays, travelled together in the company car from their base to different natural reserves and back. The case once again raised the issue of how commuting time should be classified under the application of the Working Time Directive (hereinafter: WTD). ²

The WTD aims at improving workers’ safety and health at work, which should be regarded as a major guiding principle in interpreting the Directive's specific provisions. ³ The notions of working time and rest periods, which are central to EU working time regulation, are mutually exclusive, and the WTD does not provide for any intermediate category in between. Accordingly, ‘working time’ means any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice, while ‘rest period’ means any period which is not working time. ⁴ The Court of Justice of the European Union (hereinafter: Court) has emphasised that the various requirements laid down in the WTD concerning maximum working time and minimum rest periods constitute rules of EU social law of particular importance from which every worker must benefit, and the concepts of ‘working time’ and ‘rest period’ are autonomous concepts of EU law, from which no derogations are possible. ⁵

All this leaves very little scope for national law to establish the basic conceptual framework for working time. ⁶ Apart from strict compliance with EU rules, the only possible course of action for Member States is to also include, in working time, periods that otherwise would not qualify as such under the WTD, hence to deviate from the Directive in favour of the workers. ⁷

However, this conceptual rigidity causes many ambiguities in practice. The rich case law on the notion of working time demonstrates that many periods are difficult to categorise within the WTD's binary system. According to case law, working time shall include on-call duty, ⁸ training required by the employer, ⁹ and stand-by time if it is coupled with significant constraints that limit the worker's use of his/her own time, such as short response times. ¹⁰ In the Tyco case, the Court also had the opportunity to adjudicate on the nature of travel time, for Spanish workers who installed security systems at the premises of clients assigned to them by the employer the evening before each working day, within a wider geographical area. The Court concluded that for workers without a fixed workplace, the time spent travelling between their homes and the premises of the first and last customers designated by their employer constitutes working time. ¹¹

The factual background of the VAERSA case is quite similar to that of Tyco. It also involved Spanish workers without a fixed workplace, who worked on locations defined by the employer and who travelled to such places by company car. Unsurprisingly, the Court's legal reasoning is also similar and contains no real novelties. It may seem questionable why another preliminary ruling was necessary in this case, considering the strict legal framework and the already established case law. However, the referring court itself answered this question by summarising the contradictory decisions in Spanish court practice on the classification of commuting as working time. ¹² Similarly, the relevant employer in the VAERSA case was not consistent on the issue, treating the outward journeys from the base to the workplace as actual working time, but not the return journeys. ¹³ These uncertainties show that the evaluation of travel time as working time is still unclear in practice.

This article presents how the Court reaffirmed its decision in Tyco in this similar case, and also highlights the questions remaining around travel time. Following the summary of the facts and the Court's reasoning (Sections 2 and 3), I argue that the crucial factor in the analysis is not the fixed or non-fixed nature of the place of work, but rather the authority element, that is, whether the worker remains at the employer’s disposal during travel time (Section 4). The article explores various scenarios relating to how the worker's place of work is determined and how travel is organised, many of which cannot be approached solely from the aspect whether the worker has a habitual place of work. Section 5 identifies some factors that could make court practice less stringent regarding travel time, and Section 6 concludes.

2. The facts of the case and the question referred

VAERSA is a public undertaking responsible for implementing public investment projects in the Natura 2000 European ecological network throughout the Community of Valencia, Spain. In this case, the work was carried out by 15 teams composed of four persons each (the biodiversity workers), designated to predetermined geographical areas.

At the start of the working day, the workers travelled by their own means from their homes to the so-called ‘base’, which was a fixed site for each team in a reference municipality within the relevant natural areas, where they must be at 08:00. From the base, a company vehicle, driven by a coworker, took them and the necessary equipment to specific natural micro-reserves (the ‘site’) to carry out their duties. Work ended at 15:00, when the workers were driven back to the base in the company vehicle, from where they returned home by their own means. The employer determined the specific working days, the exact location of the sites, the work to be carried out by each team and other technical aspects in a monthly schedule, sent out to the designated leaders as a WhatsApp message.

The employment contracts provided that travelling time to and from the base and the work site was not to be regarded as actual working time. In practice, however, VAERSA counted the time spent travelling daily from the base to the site as working time, but not the return journey at the end of the working day.

The legal classification of the time spent travelling between the base and the site was raised in a collective action brought by a trade union. The referring court asked the Court whether Article 2 of the WTD must be interpreted as meaning that the time spent by workers travelling in the company's vehicle at the beginning and end of the working day, from the base to the micro-reserve or work site at which they carried out their duties and from there to the base, constituted working time. ¹⁴

3. The decision of the court

The Court's reasoning followed that of the Tyco case in terms of both structure and content. The judgment analysed the three cumulative conceptual elements of working time: the spatial criterion (to be at the workplace); the authority criterion (to be at the employer’s disposal); and the professional criterion (to be carrying out activities or duties). ¹⁵ Although the facts presented left little doubt as to the accuracy of the conclusions of the judgment, the Court emphasised the need for further clarification of the facts regarding all three elements, thus making its conclusions ‘subject to verifications to be carried out by the referring court’. ¹⁶

As regards the first element in the assessment, during working time the worker must be carrying out his or her activity or duties. The Court pointed out that the travel arrangements of the biodiversity workers were largely made by the employer, which designated the means of transport, the point of departure and destination and the time of departure. It followed that those workers did not have a fixed and habitual place of work. It was necessary for them to travel in order to perform the work under the employment contract, and they must comply with the travel arrangements imposed by the employer. In those circumstances, such journeys must be regarded as inextricably linked to their status as biodiversity workers and therefore inherent in the exercise of their activity. Consequently, the workers concerned must be regarded as carrying out their activity or duties during the travelling time. ¹⁷

As for the second conceptual element, the worker must be at the employer's disposal during working time. The Court had already ruled that the decisive factor is that the worker is required to be physically present at the place determined by the employer and to be available to the employer in order to be able to provide the appropriate services immediately in case of need. The worker must be placed in a situation in which he or she is legally obliged to obey the instructions of his or her employer and carry out his or her activity for that employer. The Court highlighted that there were many elements in the factual situation which underpinned that the workers concerned were at the employer's disposal during the disputed travels. It was the employer which instructed its personnel to meet up at the base, determined by the employer, at a specified time, in order to travel together, in a vehicle belonging to the same employer, driven by a coworker, to that place. It followed that during the necessary travelling time, which generally could not be shortened, the workers were not able to use their time freely and pursue their own interests, and, consequently, they were at their employer's disposal. ¹⁸

The third element of the concept of working time is that the worker must be working during the period under consideration. The Court could easily deduce this from the previous two elements: the workers concerned had no fixed place of work, their place of work could not be reduced to the physical areas of their work (the micro reserves), and during the journeys between the base and the site they were carrying out their activities or duties. Consequently, those workers were to be regarded as being at work. ¹⁹

In conclusion, as all three elements were met, the Court ruled that the time spent on outward and return journeys, which workers were required to take as a group at a time specified by their employer and in a vehicle belonging to that employer, in order to travel from a specific place, determined by that employer, to the place where the essential work under the contract of employment was performed, must be regarded as ‘working time’ within the meaning of Article 2 of the WTD. ²⁰

4. The relevant factors of travel time

Considering the two broadly similar cases on travel time, and also building on the extensive case law on the notion of working time (especially on the rulings on stand-by duty), below I attempt to draw up the list of factors that are relevant to the assessment of travel time as working time.

At first sight, the crucial element in the analysis is whether or not the worker has a fixed workplace. However, in my opinion this is misleading. First, there is no clear concept of a non-fixed workplace in EU law, so this could not serve as the guiding principle in the evaluation. Second, it is not the nature of the workplace which stands out as the main factor in the Tyco and VAERSA cases, but rather whether the worker is at the employer’s disposal during travel time, or enjoys a significant level of autonomy. Having a non-fixed place of work, determined by the employer, is just an indication for the former.

4.1 The blurry boundary between a fixed and non-fixed workplace

While the non-fixed nature of the workplace seems to be a decisive factor in travel time case law, it is not defined by EU law, and there is no clear delineation between a permanent and a non-fixed workplace. Therefore, the concept of the place of work depends entirely on national law, including, for example, in respect of whether it is designated by the mutual agreement of the parties or unilaterally by one of them, how precisely it must be defined, and whether there can be multiple places of work.

The Transparent and Predictable Working Conditions Directive prescribes that within the first seven workdays, workers shall be notified of the place of work; and where there is no fixed or main place of work, of the principle that the worker is employed at various places or is free to determine his or her place of work, and of the registered place of business or, where appropriate, the domicile of the employer. ²¹ However, this provision merely requires that information be provided, and the Directive does not provide for any guarantees applicable for more flexible methods of determining the place of work, unlike for work patterns that are entirely or mostly unpredictable, or on-demand contracts. ²² It is no surprise that one of the criticisms made against the Directive is that it focuses on workers in typical employment relationships and those employed on zero-hours contracts, but offers limited protection to other non-standard workers. ²³

The definition of the workplace is therefore a matter for national law and can take many forms that go beyond the rigid distinction based on whether it is fixed or not.

First, the non-fixed nature of the workplace may be temporary. In his opinion in Tyco, Advocate General Bot defined ‘peripatetic workers’ as being workers who are not assigned a fixed or habitual place of work. Such workers are therefore required to work at different premises every day. ²⁴ However, it is by no means certain that the place of work changes on a daily basis, but workers might be rotated among the different sites following a broader timeframe (e.g., weekly or monthly). ²⁵ Moreover, even with a permanent workplace, a worker might be required to perform tasks exceptionally at a different location. The examples are numerous. This is the case for a worker who regularly works at a fixed place but is assigned for a limited period of time to deliver a certain service on behalf of the employer at the client's premises, for a teleworker who is required to attend an in-person meeting, or where compulsory training is organised outside the regular workplace at a remote location.

Second, even if a worker does not have a permanent place of work, the number of different places at which he or she has to be available may still be relevant. For instance, a nurse may work in two hospitals, spending one week in the first and then the next week in the second; or a music teacher might teach lessons in three different primary schools, with the monthly working days equally spread across the three locations.

Based on the aforementioned criteria, numerous different factual situations are possible, many of which would be difficult to categorise as involving either a fixed or a non-fixed workplace.

4.2 The authority element during travel time

It appears from the Tyco and VAERSA cases that, when examining the three elements of working time, the decisive factor is whether the worker is at the employer’s disposal. The assessment of the other two elements seems much less specific.

As regards the criterion relating to the carrying out of activities or duties, the Court stated in the cases referenced above that the workers involved – who were without a fixed or habitual place of work – were carrying out their activities or duties during travel, as it was ‘inextricably linked’ to their status and therefore ‘inherent’ in the exercise of their activity, ²⁶ and it was a ‘necessary means of providing those workers’ technical services to those customers’. ²⁷ However, one might argue that all travel during the course of the employment relationship qualifies, provided that the activities or duties are carried out upon the (at least indirect) order of the employer. Logically, if travel is not necessary to carry out any duty set out in the employment contract, the employer will not oblige the worker to undertake it. From this perspective, the questions of whether or not it is usual for the worker to work at different locations, or how many workplaces there are, appear irrelevant.

As for the third element, similarly, it is unreasonable to claim that the worker works during the journey and the vehicle qualifies as a workplace only if the destination is not a fixed workplace. It appears that this criterion does not depend on how often the worker travels to locations other than his or her (more or less) permanent place of work, or on the number of workplaces.

In my opinion, the key consideration in terms of classifying time spent travelling is the extent to which the worker is under the employer's control or – from the opposite perspective – the degree of autonomy he or she has during that time. This approach is more suitable for distinguishing between the many different types of situations. For such an exercise, the relevant factors could be the following.

First, the significance of the fixed or non-fixed nature of the workplace seems to be outweighed by the question which party defines the different aspects of travel, especially the destination (the place of work). Importantly, in both Tyco and VAERSA, the place of work was defined by the employer. ²⁸ However, if it is within the worker's autonomy to choose the place of work, this may indicate that the worker is not at the employer’s disposal during travel, even if there is no fixed workplace. This could apply in the case of a journalist who is free to organise the time and place of the interviews and reports. However, it is more likely that the worker enjoys only a certain level of autonomy to choose the place of work, for instance, if the employer issues the addresses of the sites or clients to be visited, but the worker remains free to set the itinerary, within a reasonable timeframe (e.g., all locations shall be visited in a month). In this setting, neither the start nor the arrival time is defined by the employer, nor is the sequence of the destinations, yet the worker is obliged to visit all places assigned. Thus, it could be argued that the worker is less likely to be at the employer's disposal during such travel than the workers in the Tyco case.

A similar approach was used by the Court in the Radiotelevizija Slovenija case ²⁹ to conclude that if a worker commutes to a permanent workplace, the time spent travelling is not considered working time. As the Court pointed out, in such cases the worker is in a position to assess freely the distance between the permanent workplace and his or her home. Commuting may cause constraints on the worker, but those are entirely the consequence of the worker's own free choice. Consequently, commuting time is not working time, not even if there is a substantial distance between the residence freely chosen by the worker and the workplace. ³⁰

Second, besides the place of work, many other circumstances of travel may be relevant, the decisive factor, again, being whether it is defined by the employer or by the worker. In particular, even if the work site is designated by the employer, the worker might be free to decide on the departure or arrival times. As for the means of transport, travelling in a company car involves less autonomy as opposed to being able to use any vehicle. Even the right to decide on the itinerary might be significant, albeit this has limited effect if the destination and the arrival time is determined by the employer. In Tyco, the workers travelled in a company car, the times of appointments with the clients were scheduled by the employer and – although the workers remained free to choose the route – the employer could change the order of the customers or cancel or add a new appointment. ³¹ In VAERSA, the means of travel, the time of departure from the base at the beginning of the workday, and from the last site at the end of the shift, were all determined by the employer. ³² All these factors confirmed that the workers were at their employer’s disposal while travelling.

However, the question of how far in advance the employer informs the worker about the place of work does not seem relevant. ³³ Earlier notification naturally gives more room to prepare for travel, but in essence it does not give the worker any real leeway, as it is rather unlikely that the place of residence can be adjusted in light of the information on the expected place of work. Similarly, the distance between the start and end point of travel has also no relevance, as the amount of time is not among the conceptual elements of working time.

Third, the worker might be subject to other obligations during travel. For instance, it also obviously limits the worker's freedom if he or she has to travel with companions designated by the employer, even if the worker travels in his or her own car. ³⁴ The fact that the worker has to transport certain equipment or cargo that needs special care could also be relevant. Similarly, the worker might be obliged to be available by smartphone or travel in special clothing (e.g., protective or formal wear that makes it unlikely that the worker would stop during travel and appear in public). For example, in VAERSA, the biodiversity workers travelled as a team in the company car and also transported with them some necessary equipment. ³⁵

The numerous factors to be taken into account can result in a wide variety of combinations. Within this complex context, the significant of the fixed or non-fixed nature of the workplace seems to be lost.

On the one hand, in some cases, even if the worker has a fixed place of work, the time spent travelling to work may still be considered working time. This would be the case, for example, with a police officer who carries out his duties with a specially trained dog, which he takes home after shifts using a special police car equipped with a dog carrier box, and in compliance with many in-house rules on travelling with the animal (e.g., time spent travelling should be as short as possible without any avoidable stops and no companions allowed in the car). Such severe constraints may demonstrate that during travel time the worker is actually at the employer’s disposal. Similarly, time spent travelling to undertake exceptional assignments, or to participate in meetings or training in external locations is not controlled by the worker, even if he or she is has a fixed workplace. Therefore, the frequency with which work is performed outside the habitual place of work is irrelevant for the classification of time spent travelling, just as the classification of stand-by time is not affected by how often the employer orders actual work to be done. ³⁶ However, if such trips for work are rare, then time spent travelling could be so unusual that the worker would hardly take legal action to classify it as working time.

On the other hand, conversely, in certain cases time spent travelling may not be regarded as working time even in the absence of a permanent place of work. If the worker has to travel to numerous workplaces, but by his or her own timetable, itinerary and means, the evaluation of all factors might show that the authority element is missing. Also, if there are only a few different workplaces across which the working time is spread roughly equally or according to a certain pattern, travelling is not done under the authority of the employer. ³⁷

Therefore, travel time can only be classified as working time or a rest period after thorough examination of all relevant circumstances. As the Court pointed out in the Tyco case, workers might enjoy greater freedom during time spent travelling than when they are performing their duties on the premises of the costumers. ³⁸ Nonetheless, this freedom may still be far too limited to consider travel time as a rest period, in light of the health and safety objectives of the WTD. For the correct classification of time spent travelling, a comprehensive and overall evaluation of each factual situation is necessary, as Leszek Mitrus concluded concerning the case law on stand-by time. This cannot be avoided even if it risks legal certainty and the uniform interpretation of the concepts of working time and rest periods in Member States. ³⁹

5. Some inherent constraints: on the possible effects of VAERSA

Although the Tyco and VAERSA rulings are important in reinforcing the occupational health and safety objectives of EU working time rules, there are some important factors that might mitigate their significance.

First, an employer can organise activities in such a way that minimal travel required (e.g., by introducing teleworking or hiring staff living in close proximity to the actual work sites) and only the least possible amount of time spent travelling qualifies as working time (that is, offering higher degree of autonomy for workers to arrange their own travel). In addition, as the Court also pointed out in Tyco, employers may use various means of monitoring travel time if this is accompanied by a certain degree of autonomy for workers. ⁴⁰

However, it should be noted that extensive travel time might pose risks to the health and safety of the worker, even if it is not considered as working time. As the Court has pointed out in its case law on stand-by duty, the classification of a period of stand-by time as a rest period is without prejudice to the duty of employers to comply with their specific obligations under Directive 89/391 ⁴¹ to protect the safety and health of their workers. ⁴² Employers cannot set periods of stand-by time that are so long or so frequent that they constitute a risk to the safety or health of workers. ⁴³ Similarly, if there are only low intensity constraints on the worker during travel time, but it is excessive and occurs frequently, especially during the night, it might impact the quality of rest time to such an extent that it poses a health risk. Employers should observe not only the WTD's requirements but also fulfil their duties under EU occupational health and safety law, especially with a view to guaranteeing the safety and health of workers in every aspect related to the work, as well as avoiding risks and adapting the work to the individual. ⁴⁴

Second, Member States have already been relaxing the rigidity of case law regarding the concept of working time by increasingly making use of the opt-out clause in Article 22 of the WTD. ⁴⁵ Accordingly, national law may allow for exceptions to the weekly maximum working time of 48 hours if certain conditions are met, including with the worker's consent. It is therefore possible that in sectors where it is common for workers to travel between their non-fixed work sites and their homes under conditions controlled by their employers, national law can extend the weekly working time by relying on the opt-out clause. Thus, although the WTD has been interpreted in worker-protective ways, it is questionable how widely applicable it is. ⁴⁶

Third, a well-known feature of the WTD is that EU working time rules do not affect remuneration, which remains fully a national competence. ⁴⁷ Therefore, it is conceivable that although time spent travelling may in certain cases be classified as working time, under national law it is subject to lower pay as compared to other parts of working time. The Court has highlighted that temporal bifurcation in wage regulation is a path to fragmentation that is compatible with the EU legal order. ⁴⁸

Nevertheless, in my opinion, this margin of discretion cannot be unlimited. If only minimal remuneration is paid for travel time (or, more generally, for any part of working time), this may have a detrimental impact on a worker's pay, which may in turn undermine the occupational health and safety objectives of the WTD. ⁴⁹ For instance, the low pay rates for travel lead to poor wage outcomes, which force workers to undertake overtime regularly or take up secondary jobs, as these are necessary for a decent standard of living. Thus, overall, the remuneration rules may result in the extension of working hours. However, it is doubtful that these practices can be prevented by the Court on the basis of the WTD, which is clearly not applicable to remuneration. Nonetheless, the room for manoeuvre that Member States enjoy could be limited further by the Directive on adequate minimum wages in the European Union. ⁵⁰ Article 6 provides that variations and deductions in pay that reduce the remuneration to a level below the relevant statutory minimum wage must respect the principles of non-discrimination and proportionality. Although this provision is more likely to address differences in minimum wages applied to certain sectors (e.g., agriculture) or groups of workers (e.g., first labour market entrants), from a teleological point of view it can be argued that this Article should also apply to stand-by and travel time. ⁵¹

6. Conclusions

The case law on travel time shows that work-related travel is an important aspect of work organisation. Workers may spend a considerable amount of time travelling, either between different workplaces or between their homes and places of work. The duration of these periods is included in working time depending on how the employer organises the activity, in particular, what authority it exercises over the time spent travelling. EU rules on working time are particularly important in this regard in terms of risk allocation. As the Court has pointed out, employers’ decisions regarding travel should not result in the burden being borne solely by the workers, for example if a new model of operation means that a significant proportion of time spent travelling will occur during rest periods. ⁵² This approach may also be important in assessing a number of other (not travel-related) cases where workers are entitled to a certain degree of autonomy while carrying out their duties (e.g., waiting time between tasks, time spent changing clothes).

Although there are already two cases available on the classification of travel time as working time, the issue is far from being fully resolved. The analysis has shown that there are a number of situations in which it would be unfair to consider time spent travelling as a rest period, even if there is a fixed workplace, which involves a certain degree of predictability. Nonetheless, there is no room for a restrictive interpretation of the right to rest to the detriment of a worker. ⁵³ The binary system of working time and rest periods in EU law offers an adequate guarantee for this, even though it requires a case-by-case evaluation for the correct classification of travel time.