Overtime and Overtime Wage in Turkish Labor Code (TLC)
By F. Cansu KARACA
ADMD Law Office, www.admdlaw.com Istanbul TURKEY
European Union Directive No.104 is accepted and enforced by European Union Council in 23.11.1993 furnished a flexibility to work hours and this flexibility is supported with the codes accordingly. Turkey which is in the process of entering to European Union has made some important changes and accommodated to innovations in Labor Law in order to adapt EU’s standards and updates. During Turkey’s adaptation process, overtime which is a fundamental part of Labor Law has also been subject to mentioned changes and innovations. The provisions regarding overtime and overtime wage of Turkish Labor Code No.4857 which is arranged in compliance with European Union Directive No.93/104, dated May 22, 2003, and published at the Official Gazette June 10, 2003 will be examined below.
Standard Labor Time, Overtime, Excessive Work
Even though the labor time isn’t defined in TLC, according to the definition regarding the labor time which is designated under the 3rd Article of the Regulation for the Labor Time of Labor Code depending on the 63rd Article of the mentioned code, labor time is the employee’s time period spent at work. The standard labor time is 45 hours a week in compliance with the articles 41/1 and 63 of TLC. Despite the standard labor time is stated precisely as 45 hours a week, parties could conclude fewer work hours a week.
Overtime is designated pursuant to the statute as the exceeded standard labor time.
Excessive work is determined under the Article 41/3 of TLC; where weekly labor time is designated below the standard labor time and over the time specified in the employment contract.
Difference between Overtime and Excessive Work
The difference between overtime and excessive work is designated; the employee may either get paid for the hour of extra work or may spend a designated free time in exchange of extra work. According to the Article 41/2 of TLC, overtime wage for one hour is increased 50% in comparison to normal wage or according to the 4th sub clause of the same article; a free time of 1 hour and 30 minutes is allowed at the written request of the employee.
As stated in the Article 41/3 of TLC the excessive work wage for one hour is increased 25% in comparison to normal wage or according to the 4th sub clause of the same article; a free time of 1 hour and 15 minutes is allowed at the written request of the employee. Therefore, there are two options that an employee could choose to receive a compensation for the extra work; one of them is to receive a surcharge and the other one is allowed free time.
Extra work other than the employer’s request and directive would not be paid unless the employee proves that work given could not be done without extra work.
A five year period of time limitation is executed for the work hours over the standard labor time as of the date designated under the Article 32/6 of TLC as it is common for the all wage rights. If the employee prefers to receive the allowance for the work hours over the standard labor time as free time, employee could use the free time in 6 months, during working hours and without any salary cutback due to the Article 41/5 of TLC.
According to the Article 63 of TLC, standard labor time for a week is equally divided to working days unless otherwise mentioned. In workplaces which employees work 6 days a week, working hours are divided equally into the work days and overtime is determined as 3,5 hours with a maximum working time of 11 hours daily, in workplaces which employees work 5 days a week, overtime is determined as 2 hours along with the same conditions executed. Parties could independently disarrange the weekly labor time to working days with a maximum working time of 11 hours daily if they agreed.
Equalization application is executed if the parties disarrange the weekly labor time to working days independently. Due to the Article 63/2 of TLC the execution of equalization is possible only for 2 months period or it is could be extended to 4 months period with collective bargains. Therefore, equalization is possible for minimum 360 hours. The average working hours of equalization period for 2 or 4 months shouldn’t exceed 45 hours weekly and 11 hours daily.
The overtime is designated if the average working hours exceed 45 hours a week. Extra time could not exceed 48 hours a week according to new arrangement. If the daily 11 working hours is exceeded, employer would be imposed with an administrative fine. Due to the Article 104 of TLC, mentioned administrative fine is paid for one action, not for each employee while surcharge payments are defrayed separately for each employee.
As it is designated in the Article 68 of TLC, working hours do not include relaxation allowances. Therefore, relaxation allowances should be excluded in the method of calculation of weekly working hours. For example, an employee who works 10 hours daily and 5 days a week could not demand for 5 hours of overtime with the calculation of 5 x 10=50 and 50-45=5. Relaxation allowance of 1 hour a day shall be excluded from the stated calculation; therefore the employee works 45 hours a week and the overtime could not be claimed accordingly. The TLC determines different relaxation allowances according to the nature and requirements of the job. The TLC anticipates 15 minutes of relaxation allowance for 4 working hours and less, 30 minutes for more 4 hours to 7.5 hours, 1 hour for 7.5 hours and more. The Supreme Court of Appeals anticipates 1 hour and 30 minutes of relaxation allowance for 10 and more working hours although the TLC doesn’t state. As a rule, relaxation allowances are ceaselessly benefited in the middle of working hours. Mentioned relaxation allowances are minimum time periods; they could be extended but could not be abridged.
Exceptions of Relaxation Allowances
The elapsed time on the road to work while being ferried as benefit pension by the employer is excluded from the working hours. Although the elapsed time on the road while being ferried as benefit pension and relaxation allowances are excluded from working hours, the conditions stated on sub clauses of the Article 66 of TLC are included.
The conditions included to working hours even though they are spent out of work place are designated under the Article 66 of TLC as follows: The elapsed time on the road for underground and under water workers, the elapsed time where the employees are taken to another place to work by the employer, the elapsed time where the employee is waiting ready at work, the elapsed time where the employee was sent by the employer to somewhere else or kept busy with something else than his real work, the elapsed time for the employee to suckle, and the elapsed time where the employees spend their time between the work place and their living places that are far from the work place.
As stated in the Article 41/6 of TLC, the overtime is forbidden at night works. According to the Article 69, night starts at most at 8 pm, ends at 6 am and in any case it could not exceed 11 hours daily. Due to this article, night works could not exceed 7.5 hours daily.
Overtime and Excessive Work at State of Emergency, Martial Law, Mobilization, and War
Since the written approval is necessary for overtime and excessive work, it is not necessary to receive the written approval of employee’s for overtime at state of emergencies as determined in article 43, and overtime of imperative reasons as determined in the Article 42. Due to the Article 41/7, written approvals shall be received from the employees at the beginning of each year, and these written approvals shall be kept in employees’ personal files. According to the Article 41 of TLC, overtime is applied with a maximum working time of 11 hours daily and 270 hours annually. In case of overtime which the written approval of employee is not necessary to request, the mentioned imperative reason may not be force majeure, it is sufficient for the condition to be pernicious. The time limitations of 11 hours daily and 270 hours annually could be exceeded in such cases.
In case of state of emergency, martial law, mobilization and war the working hours could be increased differently according to nature and requirements of job by Council of Ministers due to the Article 43 of TLC. It is unjust for the employee to evade overtime working despite he/she claims no valid reason or the written approval of the employee is taken. In consideration of the Article 25/II-g of TLC, the employer could cancel the employment contract without notice and indemnifications. Additionally, employee could cancel the employment contract if employer compels the employee to work with overtime each and every day or does not pay the overtime wage.
The provisions of the Turkish Labor Code regarding overtime and overtime wages which are in compliance with European Union Directive No.93/104 are examined above. In light of the above examined issues, importance of employee’s rights in TLC is stressed out, and critical points of overtime and its applications are specified. Despite all above examined issues, it is highly advised for the employers to ask for legal consultancy.