4857 NUMBERED LABOUR LAW WITHIN THE SCOPE OF OVERTIME WORK, COMPENSATORY WORK AND EQUALISATION
1. Overwork
Overtime work is the work exceeding forty-five hours per week within the framework of the conditions written in the Labour Law No. 4857 (‘Law’). Overtime work, on the other hand, refers to work that exceeds the average weekly working time and is performed up to forty-five hours in cases where the weekly working time is determined below forty-five hours.
As it can be clearly seen from the definition of the law, since overtime work refers to work exceeding forty-five hours per week, the overtime calculation cannot be made over the monthly overtime hours. When calculating overtime work, weekly working hours should be taken into consideration. According to the legal reasons requiring overtime work, overtime work is divided into three categories:
- Overtime Labour
Definition: Overtime work is work performed for reasons such as the general interests of the country or the nature of the work or the increase of production.
Conditions:
- The legal weekly working hours exceed forty-five hours per week or eleven hours per day, or seven and a half hours per night, with exceptions
- The consent of the employee must be obtained for normal overtime work. Within the scope of the Regulation on Overtime Work and Working for Excessive Periods Regarding the Labour Law (‘Regulation’), this approval can be obtained with a provision in the employment contract or later. This approval must be kept in the personal file. Provided that thirty days notice is given, the employee can withdraw this approval. The employee is not obliged to provide any reason for withdrawing this consent. In the event that the employee withdraws this approval without complying with the thirty-day period; the cases where the employer does not comply with the overtime work requests within the thirty-day period from the notification will mean that the employee has not fulfilled his duty unless it is based on a justified reason. As a matter of fact, in one of the decisions of the 9th Civil Chamber of the Court of Cassation, the employee, whose employment contract includes the approval of overtime work and working on holidays and general holidays, did not come to work despite the announcement that the work would be done on the Feast of Sacrifice. At this point, it should not be forgotten that the overtime work obligation arises from the approval of the employee. For this reason, it would not be correct to justify the employer’s termination of the employment contract due to non-participation in overtime work without investigating the situation in question and to reject the employee’s request for compensation. However, in cases where there is legal approval, the employee refrains from performing the work without a justified reason and the employee is reminded/warned that he/she has to do overtime work, the employment contract of the employee is terminated for just cause, unless there is a contrary provision in the contract.
Maximum Duration: The total duration of overtime work cannot exceed two hundred and seventy hours in a year.
- Compulsory Overtime
Definition: Overtime work performed during a breakdown or when a breakdown is deemed possible, or for urgent work that must be done immediately for machines or tools and equipment, or in the event of compelling reasons.
Conditions: In the event of compelling reasons, all or some of the employees may be made to work overtime, provided that it does not exceed the level that will ensure the normal operation of the workplace. In this case, employees should be given an appropriate rest period. In this kind of overtime work, the approval of the employee is not taken.
Maximum duration: In these cases, the Law does not limit the duration of overtime work to a certain number of hours, but it is stated that it cannot exceed the level that will ensure the normal operation of the workplace.
- Extraordinary Overtime Work
Definition: Overtime work performed in workplaces that meet the requirements of national defence during mobilisation and where the President of the Republic may, if deemed necessary, increase the daily working time to the maximum working capacity of the employee.
Conditions: The consent of the employee is not required for this type of overtime work.
Maximum duration: During mobilisation, the President may increase the daily working time to ‘the maximum working capacity of the employee’ according to the type of work and the degree of need, provided that it does not exceed this period.
- Overtime Work Provision
- Increased Wage Payment
According to the Law, the wage to be paid for each hour of overtime work is fifty per cent of the wage per hour, and the wage to be paid for each hour of overtime work is paid by increasing the wage per hour by twenty-five per cent. Although these rates are minimum rates, the employee and the employer may determine a higher rate by agreement. In other forms of remuneration other than hourly wages, such as daily, weekly, monthly wages determined according to time, the amount to be found after calculating the hourly wage will be increased according to these percentages.
- Allocation of Free Time
The employee has the right to use one hour and thirty minutes for each hour of overtime work and one hour and fifteen minutes for each hour of overtime work as free time instead of the increased wage . The employee must use this right within six months and without any deduction from his/her wage without interruption from the date determined by the employer in accordance with the requirements of the work and the workplace, provided that he/she gives written notice in advance. Since the use of this right depends on the employee’s request, the employer is obliged to comply with the employee’s request. In addition, the employee may request a part of the overtime work as free time and a part as increased wage. These periods are determined as minimum and it is possible to increase these periods by labour contract, collective bargaining agreement or unilateral action of the employer.
- Prohibitions in the Scope of Overtime Work
- Within the scope of the Law, as a rule, no more than seven and a half hours of work can be done per day or no overtime work can be done at night in jobs that require less than seven and a half hours of work.
- As clearly stated in Article 8 of the Regulation;
- Employees under 18 years of age,
- Employees who, even if they have previously or subsequently agreed to overtime work in accordance with the labour contract or collective bargaining agreement, are certified by the report of the workplace physician or the physician of the Social Insurance Institution Presidency, or any physician where these are not available, that their health does not allow them to work overtime,
- Pregnant, recently given birth and breastfeeding employees as specified in the Regulation stipulated in Article 88 of the Law,
- Employees with part-time employment contracts and
- Except for compulsory reasons pursuant to Article 42 of the Law and extraordinary circumstances pursuant to Article 43 of the Law, overtime work cannot be made to employees working in underground mines.
2. Compensatory Work
Compensatory work has become an important institution since the Law regulates compassionate leave other than paid or unpaid leave. Thanks to this institution, employers can request the employee, who has been granted compassionate leave, to work afterwards in order to compensate for the time he/she did not work.
In order to be able to talk about compensatory work, first of all, there must be a period of time during which the employee is considered to be on leave and the wage for this period must have been paid to the employee. This situation differs from the situation where leave is granted in the amount of the overworked period, especially after overtime work. Because in this case, the employee has chosen to be considered to be on leave for the time he worked instead of overtime pay.
- Reasons for Compensatory Work
Article 64 of the Law stipulates that ‘In cases where work is stopped due tocompulsory reasons , the workplace is closed before or after national and general holidays or the workplace is closed before or after national and general holidays or the workplace is significantly below the normal working hours or completely closed due to similar reasons, or the employee is given leave upon the request of the employee , the employer may have compensatory work for the periods not worked within four months . The President is authorised to increase this period by up to two times . These works are not considered as overtime work or overtime work .’ Accordingly, in order to have compensatory work, the reason requiring compensatory work must result in working below the normal time in the workplace or a complete holiday.
- The first reason forcompensatory work is the stoppage of work due to compulsory reasons. Compelling reasons, as stated in the Law, are situations such as natural disasters such as earthquakes, rain, floods, snow, natural disasters such as earthquakes, rain, floods, snow, prohibitions imposed by the legislative and executive bodies and civil war, which cannot be foreseen and avoided in advance and which come from outside through no fault of their own. The occurrence of these situations constitutes the compulsory reason for the holiday of the workplace or working significantly below the normal working time.
- The second reason for compensatory work is the employer’s holiday before or after national holidays and general holidays Sometimes, when religious holidays end one day or two days before the week holiday, employers may consider that one or two-day gap as a holiday for employees. In this case, employers may request the compensation of the non-working days, which they recognise as a holiday, from the employee at another time.
- The employer is not obliged to accept the employee’s request forleave unless there is a situation arising from the legislation or the contract, if any. However, if the employer accepts the leave request, with this opportunity provided by the Law, the employer will be able to compensate for the time that the employee did not work.
The above-mentioned reasons listed in the article of the Law are not enumerated in an exhaustive manner, and it is stated that compensatory work will also be applied in different similar situations by supporting it with the expression ‘for similar reasons’. For example, the employer may decide to close the workplace for a few days due to social events or epidemics.
- Notification of Compensatory Work to the Employee
There is no need to obtain the written consent of the employee for compensatory work. The important situation here is the emergence of the reason for compensatory work.
The burden of proof is on the employer to prove whether the work done by the employee is a compensatory work in return for leave or overtime work. For this reason, the employee must be notified that the leave used by the employee is in return for compensatory work and this notification must be in a situation that can be proved in the dispute that may occur in the future.
The employer must notify the employee a reasonable period of time in advance of when the compensatory work will be carried out. While making the notification, the employer must explain the reason for the compensatory work. Compensatory work does not have to be applied for the whole workplace. Compensatory work may be requested only from a certain portion of employees according to the needs of the workplace or in case of an epidemic disease risk.
- Limitation of Compensatory Work
Compensatory work, which is the equivalent of the employee’s incomplete work, must be carried out within four months. Since this period is mandatory, it cannot be extended by agreement of the parties. If the employee does not start compensatory work within four months, the employer will not be able to request the employee to do compensatory work. He will also not be able to recover the wage for the period he took leave. However, if the employee has terminated the contract without just cause within this four-month period or if the employer has terminated the contract for just cause, it is necessary to accept the deduction of the wage for the period considered as leave.
- Compensatory Work on Holiday Days
Article 64 of the Law prohibits compensatory work on certain days. These prohibited days are referred to as holidays. The legal holidays are national holidays, general holidays and week holidays, and the situation on Saturdays is controversial.
Although the 9th Civil Chamber of the Court of Cassation ruled in its decision dated 2007/27667 E. 2008/5298 K. 17.03.2008 that compensatory work cannot be done on non-working Saturdays, the relevant decision in the doctrine states that ‘The Supreme Court ruled that compensatory work exceeding three hours per day cannot be done on a non-working Saturday without evaluating whether the conditions for compensatory work are present in its decision. As we have explained in detail above, we agree with the decision only in terms of the duration of daily compensatory work, since we conclude that if the reasons put forward by the defendant employer to make up work can be evaluated within the scope of compulsory reasons, compensatory work can be done on Saturday, provided that it does not exceed three hours a day.’ (Assist. Assoc. Prof. Dr. Sezgi ÖKTEM SONGU, Assist. Assoc. Prof. Dr. Erhan BİRBEN; Is It Possible to Make Up Work on Saturday?; p.287)
- Compensatory Work Not Exceeding Three Hours a Day
Compensatory work shall not exceed three hours per day. However, this three-hour limit will be valid after the employee has completed his/her normal daily working hours.
3. Equalisation
In enterprises, there may be a need for a labour force above the weekly working time in some periods and below the weekly working time in other periods. In this context, the equalisation procedure has been introduced to meet this need. Within the scope of the Law, if the parties agree, the normal weekly working time may be distributed differently to the working days of the week in the workplace, provided that it does not exceed eleven hours a day. In this case, by making the employee work for less time in the period following the intensified working week or weeks, the total working time may be equalised so that the total working time does not exceed the total normal time required to work. Equalisation shall be completed within a period of two months, and this period may be increased up to four months by collective labour agreements.
As we have explained above, ‘intensified working week’ may be applied in workplaces for various reasons. In the weeks following the intensified working week, the employer will not be obliged to pay overtime wages to the employee if the employee works for less time. Accordingly, for example, if the employee has worked a total of fifty-five hours per week for three weeks in a workplace where the workplace works five days a week, by working thirty-five hours per week for the next three weeks, the average weekly working time of forty-five hours will not be exceeded.
