Procedures and principles regarding working in shifts Labor Law Legislation are stipulated under the Turkish Labor Law No.4857 (“the Law”) and the Regulation on Special Procedures and Principles Regarding Work in Jobs Conducted by Employees in Shifts (“the Regulation”). Not complying with relevant legislation for working conditions in working places enables employees to become entitled to terminate their labor agreements with a valid reason and cause the employers to face an administrative fine.
According to Art.69 of the Law ‘‘Night’’ in business life is a period of a day which starts at 20:00 latest, continues until the 06:00 earliest, in any case, it is limited to 11 hours. Within the scope of public order, this provision is not amendable against an employee. The Regulation explains the classification of the work of which the employee works in a half-day half-night hours’ period. According to the Regulation, if more than half of the working time encounters night time, this will be considered as a night shift. If working hours are encountered equally as both day and night, the work will be considered as a night shift regarding the principle of interpretation on behalf of the employee.
The night work shift’s daily periods are limited due to negative effects of the night shift on employees and according to Art.69/3 of the Law, employees cannot be forced to work over 7,5 hours at night shifts. Even though the Law forbids working over 7,5 hours at night shifts, the Private Security Services, Health Services and Tourism Services are excluded from this stipulation provided that the employers in this sector shall take the employee’s written consent for such condition. Likewise, exceeding the 7,5 hours’ time limit is possible within the scope of Article 42 of the Law regarding force majeure events that require overworking and within the scope of Article 43 of the Law regarding the existence of a public emergency. Turkish Supreme Court considers night shifts over 7,5 hours as overtime work and decides that the employees shall be entitled to receive a payment for overtime work for their works exceeding 7,5 hours even if it does not exceed the 45 hours of weekly legal working limit.
According to the Law and relevant legislation, it is not obligatory to take written consent of employees for working in shifts. Nevertheless, this situation is valid only for the employees who have knowledge about working in shifts and have a specific article in their labor contract. Otherwise, working at night shifts will be considered as a substantial amendment in working conditions regarding a situation that changes labor contracts against employees (Labor Law Art.22). In these circumstances, an amendment proposal for the labor contract has to be notified to the employee in written and the written consent of the employee has to be taken within 6 workdays. If an employee does not give his written consent for such change, forcing the employee to work at night shift enables him/her to become entitled to terminate his/her labor contract with a valid reason or this situation can be considered as a termination of the employer without a valid reason. The employer has to designate a proper day shift, insofar as circumstances are available, for employees who have a medical report.
Pursuant to Article 4 of the Regulation, for the works which are carried out by working in consecutive shifts, the number of shifts shall be regulated as -at least- three shifts in a 24-hour period. In works that are operating by employing workers day and night in turns, workers who work at night for a week shall be employed during the day in the following week. The shifts shall be arranged to replace each other. Working in turns for two weeks can be arranged in the day and night shifts considering the qualification, conduct and health safety of the work. Employees cannot be forced to work continuously for at least eleven hours without rest. It is obligatory to change the employees, 2 shifts for once or twice a week and the Turkish Supreme Court has specific decisions emphasizing that working continuously at night shift constitutes valid a reason for employees to terminate the labor contract.
Besides, employers or their representatives are responsible for organizing and announcing the modifications on shifts such as starting and ending periods, employees’ names, surnames, their rest breaks, weekends, etc. Likewise, in works with shifts, employers or their representatives shall provide a list regarding each shift that includes employees’ names and surnames who works in such shift, in the workplace.
In case of non-compliance with the aforementioned working rules regarding working in shifts, it will be deemed as the working rules are not applied in that workplace. In such case, the employee shall be entitled to terminate the contract with a valid reason. In addition, according to the Law, if the employer does not arrange the day and night shifts in accordance with the Regulation and has employers work more than 7,5 hours at night, an administrative fine of TRY 3.064 (for the year 2021) is being applied against the employer.
İpek Pekdiri, Attorney At Law
