Time spent travelling between clients and the workplace during the working day would normally be regarded as working time. But what about time spent travelling to work, or time spent at the workplace before commencing with normal daily tasks?
In terms of the Basic Conditions of Employment Act, every employer must regulate the working time of every employee with due regard to the health and safety of employees and their family responsibilities. Actual hours of work, or more accurately, maximum ordinary hours of work and overtime are either governed by Chapter 2 of the Act, a collective agreement, sectoral determination, or the employee’s contract of employment.
The following scenarios demonstrate the kinds of questions that arise in the context of the topic under discussion; i.e. does travel or waiting time form part of working hours. Assume in all cases that the employee is formally contracted to start work at 08:00, Mondays to Fridays.
Case 1: Joe, an electrician with Makelotsomoney Ltd, leaves home at 06.30 to start work at 08.00. Case 2: Mary, a store assistant with BuySmart Stores, also starts work at 08.00 but is required by her employer to attend a weekly meeting at the store on Mondays that runs from 07.30 to 08.00. These meetings involve planning for the week, brainstorming around specific problems and other activities necessary for the efficient functioning of the team. Case 3: Chris, a cashier at the same store, also starts at 08.00 but every morning is required in terms of his contract to clock in at 07.45 to get ready so that business can start at 08:00 sharp. Should Joe’s travel time, Mary’s attendance at the Monday meetings and Chris’s extra 15-minute’s effort in the mornings be regarded as working time?
Neither the Act, nor the Code defines what falls inside or outside of ‘working time’: the Act (s 9) merely states that employees may not be required to ‘work’ beyond a certain number of ordinary and overtime hours. The same is true of all current sectoral determinations. Some collective agreements specifically provide for such situations, however. For example, the industry agreement of the South African Road Passenger Bargaining Council provides that ‘all periods during which an employee is obliged to remain at his post in readiness to commence or proceed with his work’ forms part of ordinary working hours. Note the emphasis on ‘obliged’. If Mary and Chris worked in this industry, the time spent attending meetings or getting ready for work would have been part of their ‘working hours’.
The answer to the questions posed depends on the meaning to be attached to the term ‘work’ as used in the Act. In the absence of a clear meaning being given to this term in the Act itself, and in the absence of case law on this point, one needs to give it its ordinary (dictionary) meaning. Whether the employee’s activities fall within the scope of ‘work’ therefore involves a twofold enquiry: does the activity in question constitute ‘work’ in its ordinary sense and, if so, does it fall within the scope of what the employee is required to do?
‘Work’ is defined variously as ‘an activity in which one exerts strength or faculties to do or perform something’; ‘sustained physical or mental effort to overcome obstacles and achieve an objective or result’; or ‘a specific task, duty, function, or assignment often being a part or phase of some larger activity’. In Chris and Mary’s cases there can be little doubt that what they are required to do constitutes ‘work’ in terms of these definitions. For Mary, attendance at the meeting is part of ‘a specific task, duty, function, or assignment [as] part or phase of some larger activity’. In Chris’ case getting ready is intimately linked to the job he is required to do. Time spent preparing to do his job would therefore form part of his working hours. If he comes to work earlier, not because the employer required him to do so, but of his own choice (whether it is to prepare, to change into his uniform or any other reason), it would not be regarded as working time.
As far as Joe is concerned, it cannot be said that he is working: driving to and from work does not fall within the ordinary meaning of ‘work’. His obligation is to start at 08:00, how he gets to work is not the employer’s concern, as long as he arrives on time. Interestingly, he would also not be covered by the COIDA if he was involved in an accident on the way to work as it does not arise ‘out of and in the course of his employment’.
In the case of Chris and Mary the next question is whether what they are doing falls within the scope of what they are obliged to do in terms of their contracts with their employer, or its policies and procedures. The answer seems to be clear: both are obliged to report earlier (Mary on Mondays and Chris each work day). Failure to do so would most likely lead to disciplinary action. Note also that, if either of them were involved in an accident (during the Monday meeting in Mary’s case or while getting ready in the mornings in Chris’ case), the COIDA would apply.
What if Joe is required one day to attend a meeting at a client on his way to work; would this constitute working time? Both conditions mentioned earlier would be fulfilled in this case: he would be ‘working’ while meeting with the client and it would be part of an obligation towards his employer. But time spent traveling to the client he visits on his way to work, or back to work after meeting with the client would not constitute working time. What if Joe is on standby duty and received a call-out? In this case, the time on standby will not form part of his working hours (he is not ‘working’), but responding to the call will.
Barney Jordaan for www.labourwise.co.za