The Federal Labor Court (Bundesarbeitsgericht – BAG) has determined that the journey of the driving personnel from home to the replacement point and back after the end of their service does not constitute work time in the sense of works constitution law. Consequently, the works council (or staff council) has no right of codetermination with regard to these times. They are not to be included in the codetermined work schedule (BAG of October 22, 2019 – 1 ABR 11/18). Raue successfully represented Berlin Transport GmbH, a subsidiary of Berliner Verkehrsbetriebe, in these proceedings before the Federal Labour Court.
At first sight, this statement sounds trivial, but at second glance it conceals a problem of considerable economic importance for public transport. The replacement of driving personnel, especially in conurbations, often takes place outside depots “on the line”. In the case of “en-route” replacements, there is no possibility of handing over the necessary working equipment (driving modules, forms, keys, sometimes also cash and change) to the driving personnel on site. Employees must therefore take this necessary work equipment home after the end of their shift, keep them in safekeeping and bring them to the next shift.
The works council of Berlin Transport GmbH, was of the opinion that the journey to and from work due to the associated burdens constitutes work time in the sense of works constitution law and is subject to the codetermination pursuant to § 87, Subsection 1, No. 2, BetrVG. He demanded that these travel times be included in the work schedules. This in turn would have led to a drastic reduction in performance times and a considerable increase in the number of driving personnel required.
The Federal Labour Court has opposed this view. The way to and from work must be assigned to the employees’ private sphere. The duration of the journey depends on the freely chosen place of residence or stay of the employees, over which the employer has no influence. By carrying work equipment, the employees are not required to spend additional time by the employer.
The decision has significance beyond public transport. Employees usually carry necessary work equipment – be it only keys or keycards – with them. In view of the Federal Labour Court’s rampant case law on the recognition of travel and journey times as work time, this drawing of boundaries is to be welcomed.
(7 February 2020)