The presented article is the third in a series of articles concerning drivers’ working time. Subsequent articles discussing this issue in detail will be presented in future issues of “Logistyka”. The author’s intention is to present the discussed issues from a practical perspective, thereby enabling interested parties to find answers to current questions regarding this subject.
Introduction
Detailed concepts relating to drivers’ working time are defined in all three main legal acts concerning this matter, i.e., the Act, the Regulation, and the Agreement. However, this issue is most broadly regulated in the Act, where many concepts not indicated in the other two legal acts are explained. Regarding the Act, it should be noted that different definitions of concepts known from the Labor Code have been introduced there. These differences will be discussed in detail in relation to each of the described concepts.
On-call duty
The time of on-call duty is defined in Art. 9 of the Act. It is the time during which a driver remains in readiness to perform work outside of normal working hours. As follows from the content of this provision (§ 1 and § 5), during on-call duty, the employee-driver is required to stay at the workplace or at another place designated by the employer, including at home. Related to on-call time is the period of availability (Art. 10 of the Act), during which the driver may stay in any place of their choosing. This period is counted either as working time (during working hours in accordance with the driver’s applicable work schedule) or as on-call time (during hours outside the work schedule).
Example 1.
A passenger car driver (chauffeur) usually works from 8:00 AM to 4:00 PM. They report to work at 8:00 AM and depart with a passenger at 9:00 AM. The trip lasts 3 hours. Upon arrival, they are informed to wait for a call. Until that moment, they have free time – they can go sightseeing, have lunch, visit friends, etc. At 5:00 PM, they receive a call to report for the return trip. The return trip lasts 3 hours.
In this situation, the period of availability is from 12:00 PM to 5:00 PM, of which the period from 12:00 PM to 4:00 PM is included in working time, and the period from 4:00 PM to 5:00 PM is included in on-call time. If the driver had to stay in the vehicle during the period from 4:00 PM to 5:00 PM, this period would be working time, based on Art. 6 sec. 2 of the Act.
Day
For the purposes of the Act, a day is understood as 24 consecutive hours, starting from the hour at which the driver begins work in accordance with their applicable work schedule. The concept of a day is used for settling working time, including overtime, with a general rule prohibiting starting work more than once in a 24-hour period. It should be noted here that both the Regulation and the Agreement do not define a working day, limiting themselves to the requirement of ensuring appropriate breaks in driving and rest periods. This means that not every violation of the 24-hour period will be considered an offense against employee rights. This will not be the case for drivers to whom the regulations of the Regulation and the Agreement apply, in connection with Art. 3 of the Act. These drivers may start work again within the same 24-hour period after using the daily rest period provided for in the Regulation and the Agreement. However, starting work again within the same 24-hour period will mean working overtime to the extent that it causes an excess of the daily working time standard, but only in relation to drivers employed under an employment contract, which is confirmed by the Legal Department of the National Labor Inspectorate in a letter dated June 2, 2008, regarding drivers’ overtime (GPP-302-4560-264/08/PE).
The concept of a day for the purposes of drivers’ working time corresponds to the general concept of a working day defined in the Labor Code. It follows from the above that the working day does not correspond to the calendar day and is calculated separately for each driver. However, the statutory concept of a day carries with it interpretative difficulties. Namely, doubts arise regarding the settlement of the working day of a driver who does not work strictly according to the applicable work schedule (which should be exceptional).
The article comes from the magazine “Logistyka” 1/2011.