Although night work mostly exists in workplaces that implement the shift work system, it may occur from time to time due to the nature of the work done, even if the shift work system is not applied. There are strict legal regulations in Turkey about this working order, which is accepted to have a significant impact on human health, and employers who do not comply with these regulations, whose conditions are clearly defined by laws and regulations, may be faced with the termination of the employee’s employment contract with just cause or with administrative sanctions.
What is the legal limit of night work shift?
In accordance with the legal regulation, night work must start at 8 PM and end at 6 AM at the latest and should not exceed 7.5 hours in total. These hours specified in the law cannot be arranged in a way that will cause consequences against the workers in accordance with the principle of interpretation in favour of the worker. In other words, it is possible for employers to regulate night working hours to be less than 7.5 hours.
Although it is not possible for the workers who will work in shifts to work more than 7.5 hours a night, flexibility has been introduced in some sectors within the framework of the legislation. Accordingly, if their activities are continuous, it will be possible for workers working in the business lines of tourism, private security and health services to work at night for more than 7.5 hours, provided that their written approval is obtained. However, if it is clearly documented that the health status of the worker, whose written consent has been obtained, is not suitable for night work, the worker cannot be forced to work more than 7.5 hours in night work. One of the important elements to be considered here is that the night work of the workers employed in the exempted sectors should not exceed 11 hours per day in any case.
What is the scope of night work?
In workplaces that implement the shift work system, some of the shift hours that a worker works may coincide with night working hours. In accordance with the second paragraph of the 7th article of the Regulation on the Special Procedures and Principles for Working in Jobs Carried out by Employing Workers in Shifts, if more than half of the total working hours of a worker who works in the shift system occurs between 8 PM and 6 AM, all work done by that worker will be considered as night work in accordance with the legislation.
However, in case of industrial work, child and young workers under the age of 18, female workers for whom a health report is not issued by the workplace doctor stating that there is no harm in night work, disabled workers who do not consent to working at night and provided that they have proven their pregnancy with a health report, night work is prohibited by employer for women who are pregnant during the period between the 24th week of pregnancy and the delivery period. It should also be noted that female workers who have just given birth and breastfeed their babies are also prohibited from working at night for a period of one year following the birth.
Overtime Night works
According to legal regulation, in the event that a worker works at night for more than 7.5 hours a day the total weekly working time of the relevant worker is considered as overtime even if it does not exceed the 45 hour limit, which is accepted as the maximum weekly working time in the law. In other words, it has also been accepted by high court decisions that the employer should pay overtime wages for working hours exceeding 7.5 hours, which is clearly regulated in the Law.
However, in terms of sectors operating other than those exempted by law, the legal regulation is compulsory. For this reason, even if overtime is paid for night work exceeding 7.5 hours, personnel working night shifts may be entitled to terminate their employment contracts with just cause, in accordance with this application which is in violation of legal regulations.
Administrative sanction of night work against legal regulations
As a result, night work for employers is subject to certain conditions by law. These regulations in the law are the regulations foreseen by the lawmaker in order to protect the rights of the workers. If the employees are worked for more than 7.5 hours at night in violation of the aforementioned conditions and the legislation and this situation is determined, pursuant to Article 104 of the Labour Law No. 4857, it may be possible to impose an administrative fine of 3.064.00-TL for 2021 to the employer or employer’s representative in line with the amounts of administrative fines that change every year.
Elif Göktepeliler, Attorney At Law