Employment & Labour

WHAT IS THE COMPENSATORY WORK – IN WHICH SITUATIONS AND HOW THIS IS APPLIED UNDER TURKISH LABOR LAW

ABSTRACT: 

Many situations encountered in working life and causing work to stop has brought up flexible working models. Incomplete work due to work stopping due to mandatory reasons, holidaying before or after national and general holidays, or working under the normal working hours for a similar reason, or when the workplace is completely vacationed or in the event that the worker has taken a day-off, The employer who wishes to compensate the underemployment shall be entitled to employ the worker out of the normal working hours as specified in the law and regulation within four months. The maximal amount and how to make the makeup work within the legal limits has examined in our article below.

EXPLANATIONS:

Pursuant to Article 64 of the Labor Law Numbered 4857, “In cases where time worked has been considerably lower than the normal working time or where operations are stopped entirely concerning reasons of suspending work due to force majeure or on the days before or after the national and public holidays or where the employee is granted time off upon his request, the employer may call upon compensatory work within two months in order to compensate for the time lost due to unworked periods” In line with the Regulation on Working Hours Related to the Labor Law published in the Official Gazette No. 25425 dated 06.04.2014 compensatory work defined as “ Incomplete work due to work stopping due to mandatory reasons, holidaying before or after national and general holidays, or working under the normal working hours for a similar reason, or when the workplace is completely vacationed or if the worker has taken a day-off at the request of the worker, it has foreseen by Labor Law Numbered 4857, labor contracts and collective labor agreements. In cases where permission has given outside of the legal permits, the work to be made to the worker regarding the compensation of such periods while the worker is not working. 

As explained in the aforementioned laws and regulations; working overtime due to various reasons specified in the law,concerning non-working periods is called compensatory work. 

Pursuant to the related legislation, three main reasons have considered in order to make up the compensatory work.  The first one is that the work stops due to mandatory reasons. Although the concept of force majeure is not clearly defined, it should have evaluated in a broad sense in every concrete situation.  However, it should not be understood only as a compelling (force majeure). In case of earthquakes, floods, floods, landslides, and fires, etc. In case of natural disasters such as natural disasters or other compulsory reasons arising from the workplace, for example, the inability to operate the production machines in the workplace due to maintenance and repair or long term power outages in the region where the workplace has located the employer has the right to make compensatory work in return for the periods not working.

The second condition that makes possible compensatory work in the law is the closure of the workplace before and after the holidays and general holidays. In the event that the end of the holidays and general holidays in our country is close to the week holiday, the employers can declare a longer holiday in the workplace by combining the working days with the week holiday. In this case, Article 64, paragraph 1 of the Labor Law No. 4857, entitles the employer to request that such periods of non-employment be completed later.

The third reason that allows the employer to make compensatory work is the permission of the employer on the request of the worker. The permission stated in the law is accepted as the administrative permission given to the worker. In addition, there are some exceptions regarding the permission of the employer on the request of the worker and such permits are defined as the permits other than legal permits  envisaged by labor law, labor contract and collective bargaining agreements. Examples of legal permits which envisaged by labor law, labor contract and collective bargaining agreements are weekend, maternity leave, paternity leave, permits for marriage, death leave, permits for new job search. Other than such situations, the employer can accept the request of the employee concerning administrative leave and make compensatory work regarding such periods when the worker is not working based on the right granted by law.

Article 7, Paragraph 2 of the Working Time Regulation on Labor Law, states how the employer shall make the compensatory work. In line with the relevant regulation, the employer who will carry out compensatory work is obliged to clearly state which of the conditions listed in Article 64 of the Labor Law and to inform the relevant workers regarding the date of employment.

As can be seen from the text of the law, the compensatory work can be carried out within four months and the compensatory work carried out is not considered as overwork or overtime. However, it is of great importance for how long the compensation works will be carried out here. Pursuant to Article 7, Paragraph 3 of the Working Time Regulation on Labor Law compensatory work must not exceed eleven hours, the maximum daily working time, and shall not be carried out more than three hours per day. The employer who wishes to make compensatory work must divide it into the days worked in the workplace. In addition, in the event that the employer makes compensatory work, in return for such compensatory work, the workers who work above the daily working time cannot therefore claim overtime from the employer.

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