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Friday, October 2, 2015

what constitutes working hours in EU ... !!!

There is an enactment called ‘The Workmen’s Compensation Act 1923’ [Employee Compensation Act], a beneficial legislation for the workers.  This Act provides for payment of compensation to workmen and their dependants in case of injury and accident (including certain occupational disease) “arising out of and in the course of employment” and resulting in disablement or death. The amount of compensation to be paid depends on the nature of the injury and the average monthly wages and age of workmen.

Generally as a rule, the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment-  however,  there is also the theory of notional extension of the employer’s premises. There may be some reasonable extension in both time and place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employer’s premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman, keeping in view at all times this theory of notional extension. There are varied  judgments of Supreme court and different high Courts  on the notional extention.  This concept of notional extension would however be applicable only when there is unrebutted evidence to show that such cause arose not only during such extended time / place but also could be attributed to ‘arising out of and in the course of employment’. 

Now read this :Time taken to travel to and from work at the beginning and end of each day should count as working time under the law, according to the Europe’s highest court.  Recently, the European Court of Justice (ECJ) has ruled that workers without a fixed office should be able to charge for the time such journeys last, whereas at present they are not allowed to do so.It could mean that companies employing such workers as electricians, gas fitters, care workers and sales reps could be in breach of EU working time regulations, if they chose to abandon a regional office, for example.

The ECJ said it was protecting the “health and safety” of workers according to the European Union’s Working Time Directive. The ruling revolves around a legal case in Spain involving Tyco, the security systems company.BBC legal correspondent Clive Coleman said it could have a "huge effect"."Employers may have to organise work schedules to ensure workers' first and last appointments are close to their homes," he added.The directive is designed to protect workers from exploitation by employers, and it lays down regulations on matters such as how long employees work, how many breaks they have, and how much holiday they are entitled to.One of its main goals is to ensure that no employee in the EU is obliged to work more than an average of 48 hours a week.

The ruling came about because of an ongoing legal case in Spain involving a company called Tyco, which installs security systems.The company shut its regional offices down in 2011, resulting in employees travelling varying distances before arriving at their first appointment.The court ruling said: "The fact that the workers begin and finish the journeys at their homes stems directly from the decision of their employer to abolish the regional offices and not from the desire of the workers themselves."Requiring them to bear the burden of their employer's choice would be contrary to the objective of protecting the safety and health of workers pursued by the directive, which includes the necessity of guaranteeing workers a minimum rest period."

"The national minimum wage is a UK right, it is not a European right. There's no European right to a national minimum wage.The ruling said: "The fact that the workers begin and finish the journeys at their homes stems directly from the decision of their employer to abolish the regional offices and not from the desire of the workers themselves."Requiring them to bear the burden of their employer's choice would be contrary to the objective of protecting the safety and health of workers pursued by the directive, which includes the necessity of guaranteeing workers a minimum rest period."

Elsewhere in US, the Supreme Court ruled unanimously that workers who fill orders in Amazon.com warehouses need not be paid for the time they spend going through security checks to ensure they have not stolen any products.The court reversed a lower-court ruling for the workers, who alleged they spent up to 25 minutes waiting to go through security clearance at warehouses in Nevada.Justice Clarence Thomas said federal law requires that workers be paid for activities before and after their shifts only when the activities are “integral and indispensable” to the job they are hired to perform.
The U.S. Court of Appeals for the 9th Circuit had ruled for the workers, but other appeals courts had interpreted the law the way the Supreme Court did.The class-action lawsuit was filed against Integrity Staffing Solutions, a company that provides workers for Amazon warehouses across the nation. The implications of the decision would have been great had it gone the other way. There are more than a dozen class-action lawsuits filed against Amazon and other companies that use security checks at the end of shifts to make sure none of their inventory walks out with the workers. A win would have opened the way for hundreds of millions of dollars in compensation.

The court was examining the Portal-to-Portal Act, which Congress passed in 1947 to exempt companies from having to pay overtime for certain activities that take place before and after a worker’s shift.In previous cases, the court has identified activities that qualify as integral and indispensable to a worker’s duties. For instance, it said the time battery-plant employees spend showering and changing was compensable because of the toxic chemicals in the plant.

The court also held that meatpacking workers should be paid for sharpening knives because dull knives would make them less effective and affect the appearance of the product.But the court noted Labour Department regulations that said employees need not be paid for “checking in and out and waiting in line to do so,” among other activities. Amazon said the allegations “were simply not true.”“Data shows that employees typically walk through security with little or no wait, and Amazon has a global process that is designed to ensure the time employees spend waiting in security is less than 90 seconds,” spokeswoman said in a statement.

The lawyer representing the class of workers called is disappointing stating that an employer is free to waste as much of workers’ time as it so desires by forcing them to undergo time-consuming anti-theft screenings without compensation !

With regards – S. Sampathkumar
21st Sept. 2015.

Biblio:   Inputs taken from Washington Post and Independent.co.uk

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