ABSTRACT:
Overtime working, which means increasing working hours in line with business needs, is regulated by the Article 41 of the Labor Law Numdered 4857 and related regulations. Overtime work refers to work exceeding forty-five hours per week, while working with exrta periods means increasing this period up to forty-five hours while the weekly working time is less than forty-five hours. In case of overtime working, the Employee is paid 1.5 times of the usual wage and in the case of working with exrta periods, the Employee is paid 1.25 times of the usual wage. However, it may also be possible to make agreements that overtime working wages are included in the monthly wage according to the position of the Employee and the salary received.However, working with extra periods for the Employees does not exceed 270 hours per year and the total daily working time does not exceed 11 hours.
EXPLANATIONS:
In cases where workplace activities is required to increase, overtime working is carried out temporarily beyond the usual working hours. The reasons for overtime working regulated in Article 41 of Labor Law No. 4857 are stated as “the general benefits of the country or reasons such as the quality of the work or the increase of production” and can be shaped according to concrete needs. Pursuant to the Labor Law, since the normal weekly working time is foreseen as forty-five hours, working exceeding forty-five hours in a week are considered to be “overtime working”. However, in the event that the usual weekly working hours of the Employers are applied below forty-five hours, increasing such period to forty-five hours is considered as “working with extra periods”. In the calculation of the overtime, periods less than half an hour are counted as half an hour and periods exceeding half an hour are counted as one hour.
The principle condition of the overtime working application is that the Employer requires his / her Employee to work more than usual working time. The second condition is the acceptance of overtime working by the Employee. Pursuant to Article 9 of the Regulation on Overtime Working and Working with Extra Periods in relation to the Labor Law; written consent to overtime working work or working with extra periods is stipulated and, this approval is foreseen to be obtained from the Employee with a preliminary acceptance during the establishment of the employment contract or with an acceptance declaration to be issued in case of the need for overwork. Thus, it is possible that the approval to be received from the Employee is generally valid and that all requests concerning overtime working after the approval date can be approved by the Employee. The withdrawal of consent shall also be notified to the Employer in writing by the Employee and becomes effective thirty days after the date of notification.
The overtime working and working with exrta periods are differentiated in terms of the wages to be paid to the Employee. In terms of the working with extra periods the Employee shall be paid 1.25 times the usual hourly wage, and overtime working, the Employee shall be paid 1.5 times the usual hourly wage. In addition, Article 6 of the Regulation, with a written request of the Employee, instead of paying wages for overtime, allowed the Employee to use one hour and fifteen minutes as leisure time for each hour worked as extra periods; and 1 hour and thirty minutes for each hour workes as overtime. Leisure time shall be made, in a period deemed appropriate by the Employer, available to the Employer within the normal working hours of the Employee within a period of six months following the days when the Employee has worked overtime, and no deduction shall be made from the Employee’s wage regarding the periods of non-employment. Pursuant to the law, overtime working should not exceed 270 hours in one year. Likewise, in line with the provisions of Article 63 of the Labor Law, works exceeding eleven hours a day are prohibited. Therefore, for each Employee, even in the event that it does not exceed 270 hours per year, no work exceeding eleven hours a day shall be carried out. Pursuant to the precedents of the Court of Cassations, additional work contrary to the rule is deemed to be overtime irrespective of the weekly working time and overtime working is paid 1.5 times the regular wage. In addition, since the working with extra periods is added to the daily working time, in case of daily working time exceeding 7.5 hours, it is envisaged that the Employee should have at least one hour of rest.
The following Employees are not allowed to carry out overtime working even Employee’s consent is received;
- Employees who are under 18 years of age,
- Employees who are pregnant, just given a birth,
- Employees entitled to breast-feeding leave
The Employees working under following Works are not allowed do overtime working even Employee’s consent is received;
- Works under The Regulation on Works that Need to Be Worked Up to Seven and Half Hours or Less Per Day in Terms of Health Rules
- All night workings except The Night Works with the written consent of the Employer and more than 7.5 hours in Tourism, Private Security and Health Care Services
It is accepted that the payments concerning overtime working carried out by the Employees who are the senior managers in the workplace or who determine their working hours, who do not receive work instructions from any senior supervisor or manager, and who work at high level and which are called as white collar, are included in the regular monthly wages. Therefore, in practice, such Employees are generally not entitled to overtime working payament or leisure time.
Since the payment to be made concerning overtime working is a “wage”, overtime working components should be indicated on the Employee’s payroll and the wage payment shall be made to the Employee’s wage account. Overtime working payments are subject to a 5-year period of limitations and failure to pay the wages on time allows the Employee to terminate the employment contract for just cause under Article 24 of the Labor Law.
In cases where signed wage payrolls which do not include reservation and bank payments are compatible, the Employee shall prove the claims regarding the overtime working payments. In cases where written workplace records are available, it is accepted that no rulings can be given according to witness statements. In case of the payrolls are insufficient, overtime work can be proved by witness evidence. However, in a ruling given through witness statements, equity reduction is applied by the Courts.
In addition, it is envisaged that the Employer will be sanctioned by an administrative fine in case of violation of the statutory regulations on overtime working.
