Employer also must Pay Wages for the Time on which an Employee had to be Present before the Start of his Work

An employer also had to pay wages for the ten minutes per day on which the employee had to be present before the start of his work, even though this employee did not or only partially work during these minutes, since this time should be treated as working time and since it had been agreed that the employee would be entitled to wages for extra hours.

A call centre employed a call centre agent. He had been appointed under a min-max contract for a minimum of 24 and a maximum of 32 hours per week. He had a fixed wage for the twenty-four minimum number of hours per week, and for the hours he worked in excess of the twenty-four minimum hours per week, he was entitled to an hourly wage for each additional hour.
The employer required the employee to be present ten minutes before the start of working hours, so that he would immediately be available to work and make telephone calls from the start. The employee had to use the time to restart some computer programs and to login to his telephone.
The employer and the employee had a dispute on whether the employee was entitled to wages during these ten minutes. On appeal, the Court of Appeal had to rule on this question.
The employee had argued that he was obliged be present ten minutes earlier and that , for that reason, the employer had to pay the ten minutes. In the Court of Appeal’s opinion, however, this was an over-simplification. According to the Working Hours Act, working time is regarded as the time during which the employee performs work under the authority of the employer. The employer and the employee did not agree on the question of whether and to what extent the employee was obliged to perform work prior to his shift. Restarting the programs and logging in to the phone would take no more than two minutes, according to the employer,

The Court of Appeal took a different approach to the case.
The Court established that the employee was required to be present ten minutes before the start of working hours. The fact that the employer only checked whether the employee was immediately available from the start of working hours and did not also check his presence from ten minutes before did not preclude this. The fact that the employee did not really need the full ten minutes to ensure that he was actually available to immediately perform his work from the start of working hours was not important. That was only the consequence of the employer’s choice to give the employee no instructions for the remaining time of the ten minutes. The point was that the employee could not spend these ten minutes the way he would like to.
Since the employee worked more hours than the minimum number of 24 per week, this implied that the employee was entitled to wages for each additional hour worked. They included the daily ten minutes before the start of the shift, so that the employer also had to pay wages for them.

It is not uncommon in some sectors that employers expect their employees to be present before the start of their shift or to continue working after their shift. The employer in the above case had referred to companies in the healthcare, retail and production sector.
Especially the so-called “finish-off time” is well known in the retail trade.
However, the Court of Appeal’s judgement should not lead to the conclusion that in all these cases, employees are also entitled to wages during the time they are required to be present before and/or after the start of the shift.
Distinction needs to be made between the question when time should be regarded as working time within the meaning of the Working Hours Act and the question when an employee is entitled to wages.
Under the Working Hours Act, any time that an employee cannot spend of his own free choice should be regarded as working time, but this is only relevant for the question of how many hours an employee is allowed to work.
The question of whether the employee is also entitled to wages for all these hours worked is a different question. It depends on the agreements the parties have entered into.
In the above case, the employee was also entitled to wages for all those hours, because it had been agreed for all hours above the minimum number of hours per week.
But in another case it may have been agreed that the compensation for presence or for working during these hours is included in the fixed wage. In that case, the lower limit is that for all hours that are seen as working hours at least the minimum wage shall be paid.