Travel time for building workers: the Court of Cassation clarifies the rules on remuneration

Are you a property owner in Allonnes and have just had an extension built? You may be employing a tradesperson who has to travel every morning from Mamers, 30 kilometres away. One question may be on your mind: should this travel time be paid? And if so, how much? This is exactly the issue that the Court of Cassation decided in 1965, in a case that remains a reference for the entire building sector.

This decision, little known to the general public, answers a practical question: can an employer agree with his workers on a fixed payment of one hour for a round trip that actually takes two hours? The answer is yes, under certain conditions. But beware, the judges have set strict limits.

In this article, I explain the facts, the Court's reasoning and what this means for you, whether you are a tradesperson, a business owner or a private individual hiring a building professional.

The facts: a story like those that happen every day

Imagine a building worker, let's call him Mr. X, who works for a company based in Strasbourg. Every day, he leaves from Wissembourg, a small town about 60 kilometres north of Strasbourg. The round trip takes him two hours. But his employer, by agreement with the workers, only pays him one hour of work for this journey. A fixed rate, in a way.

Mr. X challenges this. He takes the matter to the conseil de prud'hommes (the court with jurisdiction over disputes between employers and employees) to claim payment for his two hours of travel. At first instance, he wins: the judgment rules in his favour. But the employer, supported by the Fédération des entrepreneurs du bâtiment de Strasbourg (a employers' organisation), appeals.

The case comes before the Court of Cassation (the highest French court in judicial matters). The question is simple: is this fixed-rate agreement, which provides for one hour's pay for two hours of travel, valid?

The employee raises several arguments: first, a lack of legal basis (the lower courts did not sufficiently justify their decision). Second, a distortion of the facts (the judges misinterpreted the elements of the case). Finally, that the agreement is contrary to the law, because travel time should be considered as actual working time.

The reasoning of the court — analysed

The Court of Cassation dismisses the employee's appeal. It validates the fixed-rate agreement. But on what basis?

At the time, the Labour Code did not clearly define travel time. The Court relies on freedom of contract: employer and employees can agree on a fixed remuneration for travel, provided that the agreement is clear and accepted by all parties. It holds that the judgment under appeal correctly assessed the facts and did not distort the documents in the case.

In other words, the Court of Cassation says: "Travel time is not actual working time. But nothing prevents the parties from providing for a fixed compensation, for example one hour's pay for two hours of driving." This is a pragmatic solution, which takes into account the practices of the building industry, where worksites are often far from the company's headquarters.

This decision is a confirmation of previous case law: it does not create new law, but it clarifies the conditions for the validity of fixed-rate agreements. The agreement must be real, unequivocal (without ambiguity), and not contrary to public policy (i.e., the fundamental rules of labour law).

The employee's arguments are therefore dismissed: the Court considers that the new ground (an argument raised for the first time on appeal) is inadmissible, and that the substance of the case was correctly decided.

What this means for you — concretely

For tradespeople and business owners in the building industry, this decision is a breath of fresh air. It allows you to negotiate with your workers a fixed rate for travel time, provided that the agreement is clear and accepted by all. For example, if your workers leave from Allonnes for a worksite in Le Mans, you can agree that one hour of round-trip travel will be paid, even if the journey takes one and a half hours. But be careful: the agreement must be in writing and signed, or at least result from a consistent and unchallenged practice.

For employees, the lesson is the opposite: if you believe the fixed rate is insufficient, you must challenge it quickly, before the conseil de prud'hommes. And above all, prove that the agreement was not freely given. For example, if your employer imposes a fixed rate without discussion, you can invoke duress or lack of consent.

For private individuals hiring a tradesperson, this decision has an indirect impact: the cost of travel is often included in the quotation. If your contractor charges you travel expenses, know that these expenses are freely set, but they must be mentioned in the quotation. In Mamers, a tradesperson can charge you €50 for travel for a worksite in Allonnes, even if his travel time is only 20 minutes.

If you are in this situation, you must check that the quotation details the travel expenses. In case of a dispute, know that the courts apply the principle of freedom of contract: if the fixed rate is clear and accepted, it is valid.

Four tips to avoid this type of dispute

• Put the agreement in writing: For employers, formalise the fixed travel time agreement in writing, specifying the number of hours paid and the conditions. Have each employee sign it. This will avoid any subsequent challenge.
• Keep records of travel: For employees, keep a logbook or use an app to record your travel times. In case of a dispute, this evidence will be valuable.
• Check the collective agreement: The building industry collective agreement may contain specific rules on travel times. Consult it before signing a fixed-rate agreement.
• Negotiate transparently: Whether you are an employer or an employee, discuss the fixed rate before the start of the worksite. An agreement negotiated transparently is less open to challenge than an imposed fixed rate.

Further reading: related case law and developments

This 1965 decision is part of a consistent line of case law from the Court of Cassation. For example, in a judgment of 12 June 1972 (No. 71-40.123), the Court held that travel time between home and the workplace is not actual working time, unless the employee is at the employer's disposal during that travel (e.g., if he is carrying tools or materials).

More recently, the law of 8 August 2016 (the "Loi Travail") introduced Article L. 3121-4 of the Labour Code, which provides that travel time between home and the workplace is not actual working time, but may give rise to compensation (financial or time off) if this time exceeds the normal travel time. The 1965 case law therefore remains relevant: it has been confirmed and clarified by statute.

The trend in the courts is to favour freedom of contract, while protecting employees against abuse. Thus, an excessively low fixed rate (e.g., 30 minutes paid for 2 hours of travel) could be annulled for lack of genuine and serious cause.

Checklist before taking action

FAQ:

• Can I impose a fixed travel rate on my workers? No, the agreement must be freely given. If you impose it without discussion, it can be challenged.
• What if my employer does not pay me for travel time? Check your employment contract and the collective agreement. Bring the matter before the conseil de prud'hommes within 2 years of the end of the contract (5 years for an employee still in employment).
• Is a fixed rate of one hour for two hours of travel lawful? Yes, according to this decision, provided it is accepted. But if the fixed rate is derisory, it may be recharacterised.
• Are travel expenses taxable? For the employee, the travel allowance is exempt from tax up to the tax scale limit. For the employer, it is a deductible expense.

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