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Travel time is work time

Written by Tekna’s legal department Feb. 23 2021

If your employer tells you to travel outside your normal working hours to a different workplace than your usual one, is this considered work time? Is it leisure time? Or is it travel time? And where do you draw the line exactly that shows when you’re at work?

These were the central issues taken up by the Supreme Court, which deliberated over if the time a police officer spent on traveling to and from a different workplace than his usual one, and which fell outside of his regular working hours, should be considered work time according to the regulations in the Working Environment Act. The court’s conclusion was clear: Travel time was to be considered work time. Before the Supreme Court came to this conclusion, the question about travel time and work time had been presented to the EFTA court, which also concluded that travel time is work time. This ruling will also have significance for the understanding of work time in the Norwegian court system.

Three criteria

According to the law, work time is defined as the time an employee is at their employer’s disposal. One of the case’s questions was what this definition actually means. According to the ruling, it is clear that the assessment of work shows that it consists of three parts:  

  1. The employee must be working or at work

The ruling specifies that a planned trip to another location than a usual meeting place is a necessary and important precondition for allowing the employee to be able to take care of their commitments in a responsible manner.

  1. The employee must be available to their employer

The employee must be legally obligated to follow their employer’s instructions and perform their work tasks for the employer. The course announced that an evaluation of the intensity of the amount of work performed during travel is not required.

  1. The employee must perform their work tasks or duties

If an employee must travel in order to perform tasks assigned by their employer at a different location than their permanent and usual meeting place, this travel is a necessary and important pre-condition for the employee to be able to perform his tasks in a responsible manner. 

No evaluation of intensity

One interesting and important point from the ruling is that no evaluation is required of the intensity of the amount of work that is performed during travel. It was shown that even if an employee has a certain degree of flexibility and choice during travel with regard to their means of transportation and alternative travel routes, the employee is committed to following their employer’s instructions, and that the employee is free to cancel, change or add tasks. Further, it was shown that during travel time, the employee can’t just decide to follow their own interests. Tekna agrees with the court on this point: While traveling, an employee is not allowed to spend time with their family or take part in leisure activities. 

Entitled to compensation? 

The Working Environment Act operates only with the concepts of work time and non-work time; the law does not allow anything in-between, for example travel time. Tekna’s opinion is that if travel time is work time, an employee is entitled to compensation if the conditions for this are met, and this is not regulated in any other way in a collective bargaining agreement with a trade union that has the right to provide this compensation.  

The collective bargaining agreement that affected the police officer had several categories. After making a concrete evaluation, the Supreme Court determined that this officer was only entitled to overtime pay for one of the three assignments he had participated in.  

If travel time is considered work time, this also influences the boundaries for maximum work time over the course of a day and a week.   

What does the ruling mean? 

According to the ruling, it’s clear that travel time outside of regular work time can be work time. Currently, several employers have stated that travel time outside of regular work time is not work time. This ruling has therefore helped to give nuance to the picture of what is work time that favors employees. Even if the Supreme Court did not consider the parties’ disagreement about the ruling’s scope, the EFTA court’s advisory statement is general in nature and provides clear guidelines as to how work time is to be understood. It is Tekna’s opinion that this statement provides guidelines for what is work time in other situations than the case that was brought before the Supreme Court.  

Employees who have a «particularly independent position» or a «leading position» are not affected by Working Environment Act’s section on work time. This ruling therefore has no significance for these employees. 

In autumn 2019 a lower court ruling upheld that travel time is not to be considered work time (with reservations). Employees did not prevail in their argument that they were entitled to receive wages for work time that was spent on travel because this had not been stipulated in either their employment contract or the collective bargaining agreement. Tekna does not agree with this lower court’s conclusion and believes that the principle of “rewarding service” also applies to these cases. The legal situation is in the meantime uncertain.  

Disagreement about this point at your workplace? 

If your employer is of the opinion that travel time is not work time, we advise you to ask your employer for a written justification for their position. In cases of disagreement, we advise you to contact us.  

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