With its judgment dated 17 October 2018, the Federal Labour Court (Bundesarbeitsgericht, BAG) decided that in cases of an employee’s temporary international assignment the employer must remunerate the time required for outward and return travel as work (docket number: 5 AZR 553/17)
The plaintiff, who is employed by the defendant as a technical assistant, has a contractual obligation to work on domestic and foreign construction sites. Therefore the plaintiff was sent to a construction site in China from 10 August to 30 October 2015. At the plaintiff’s request, the defendant booked an outward and return flight in Business Class with a stopover in Dubai instead of a direct flight in Economy Class. However, for the four days of travel, the defendant paid the plaintiff the remuneration agreed in the employment agreement for eight hours each. By his action, the plaintiff claims remuneration for a further 37 hours, maintaining that the entire travelling time from his home to the external place of work and back should be remunerated as work.
According to the Court, journeys to and from the external workplace in cases where the employer temporarily sends an employee abroad (international assignment) are exclusively made in the employer’s interest and therefore must be generally remunerated as work. In principle, the travel time required for a flight in Economy Class is decisive. Due to the absence of required sufficient findings by the State Labour Court on the extent of the plaintiff’s travel time, the responsible senate of the Federal State Court was unable to reach a final decision on the matter, so the case was remanded.
IV. Practice Note
The exact basis for the judges’ decision that remuneration is payable for overtime hours caused by business travel hours will become apparent in the judgment’s written grounds. Due to remission, however, it is obvious that the significance of the decision will be limited to the special collective agreement regulation in para. 7 no. 4.3 of the Federal Framework Collective Agreement for the Construction Industry (Bundesrahmentarifvertrag für das Baugewerbe, BRTV) and will not initiate a reverse from the Court’s previous case-law. Outside a special employment or collective agreement regulation, overtime in the context of business trips must therefore probably continue to be subject to general regulation of sec. 612 para. 1 German Civil Code (Bürgerliches Gesetzbuch, BGB) which stipulates that remuneration shall be deemed tacitly agreed if the circumstances of a service indicate that the service can only be expected in return for remuneration. The Federal State Court has repeatedly rejected the existence of a legal rule determining that travel time should always or at least regularly be remunerated. An expectation of remuneration should always be assessed on the basis of an objective standard, taking common usage as well as the individual case into account. Accordingly, remuneration of a part of the travel time can also be considered.