A few weeks ago, I wrote a blog about correcting hours worked based on standard target times. This week, it's about withholding breaks and deductions from the break step on the driver's timesheet, because that also causes quite a few legal discussions about interpretation of the collective bargaining agreement.

Pause scale in the collective bargaining agreement BGV

Article 26a of the Collective Labor Agreement for the Professional Transportation of Goods by Road and the Hire of Mobile Cranes (CLA BGV) states that all working hours must be paid minus the rest actually taken and the break scale. The latter tends to cause many problems, not only because many employers do not apply the break scale or apply it differently, but also because many employees take fewer breaks than the break scale actually requires.

The CLA BGV is a standard CBA, which means that it may not be deviated from, including the break tier. In other words, every company is obliged to use the break tier and deduct these break times integrally from the working hours. Or isn't it? The Arnhem-Leeuwarden Court of Appeal recently ruled that this is only allowed if the employer calls the employee to account for taking too few breaks.

No deduction from the break step

This case involved a driver who had been employed for a year by a transport company in Dronten. The driver recorded his hours on a timesheet. The employer corrected these hours by deducting breaks and applying other corrections. However, the employer never returned the corrected and approved version of the timesheet to the driver. As a result, the driver could not see which hours were corrected. Nor could he see that more breaks were being deducted than he had actually taken. The driver therefore felt he was entitled to back pay for all the hours he had worked, but which - according to him - had been wrongly corrected or written off as break time.  In the first instance, the subdistrict court in Lelystad partially granted the driver's claim. The driver was indeed entitled to back pay for the corrected hours, but the break time had to be taken into account. In other words, the subdistrict court found that the employer was not allowed to simply correct hours without returning the corrected version of the timesheet to the employee, but it was allowed to deduct the break times from the break step. So for that part, the claim was dismissed.

The employee disagreed and felt that the employer should pay his hours based on the uncorrected timesheets. With no corrections and no deduction for break time. Thus, the driver argued that if the employer felt the employee was taking too few breaks, it should have held the employee accountable, at least through the corrections on the returned timesheet. That, however, was not the case here. And the Arnhem-Leeuwarden Court of Appeal agreed. On January 18, 2021[1] the Court of Appeal ruled that if the employer had deducted the break and returned the timesheets to the employee, the driver would have taken more breaks and his trip would have ended later. And then the driver would have been paid for the hours he had worked. The Court found that the employer could not simply pay the driver less than for the hours he actually worked. The Court of Appeal therefore awarded the portion of the wage claim before the deduction of the break allowance.

Deduction from the break step

Somewhat unusually, however, this ruling is at odds with a ruling by the Den Bosch Court of Appeal on August 21, 2018[2]. Indeed, in that case, the Court of Appeal ruled that the driver had wrongfully failed to take into account the break time scale when calculating his wage claim. In that case, the employer and employee disagreed on whether or not the corrected timesheets had been returned to the employee, but the Court held that was also immaterial. In fact, the Court found that the very purpose of the break schedule is to prevent discussion between the parties about the amount of breaks actually taken and, therefore, the amount of hours of service actually worked. The Court agreed with the driver that he was entitled to wages for the number of hours he worked, but did not find that this number was also immediately fixed as soon as the driver wrote this on his timesheet. Therefore, the Court ruled that the employer was entitled to apply the break tally and that the employee could not object. The discussion of whether or not he had received a corrected timesheet could therefore be dispensed with.

Conclusion

The difference between these two cases lies - I suspect - in the fact that the Dronten employer was not clear about exactly what it was correcting on the timesheets, exactly how much break time was withheld and based on what amount per day worked. Therefore, it is critical that the employer have a clear policy on this and that corrected timesheets are always returned to the employee. It is also important that employees are properly instructed on that policy.

Would you like to check whether your policy on accounting for hours, correcting hours and withholding (enjoyed) breaks complies with laws, regulations and the collective bargaining agreement? Or are you curious about what such a policy should look like if you no longer use paper time sheets but an automatic time registration system in the onboard computer? I would be happy to visit you (digitally) to discuss the possibilities.

[1] http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:GHARL:2021:399

[2] http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:GHSHE:2018:3494