The issues related to overtime work and overtime pay in Turkey are regulated in Articles 41, 42 and 43 of the Labour Law. Additionally, it would be appropriate to consider the provisions of the Regulation on Overtime and Working for excessive PeriodsRegarding the Labour Law, which was issued on the basis of the provision of the law and entered into force after being published in the Official Gazette dated 06.04.2004 and numbered 25425. It is also seen that Article 17, Paragraph 7 of the Occupational Health and Safety Law No. 6331 is also important in this regard.
Three types of overtime work in Turkey are defined in Articles 41, 42 and 43 of the Labour Law. According to Article 41, normal overtime work is the work performed for reasons such as the general benefits of the country or the nature of the work or increasing production.
According to Article 42, overtime work in Turkey for compulsory reasons is the work performed by all or some of the workers, provided that it does not exceed the level that will ensure the normal operation of the workplace, either during a breakdown or if a breakdown is deemed possible, or in urgent work that must be done immediately for machines or tools and equipment, or in the emergence of compelling reasons. According to Article 43 of the Labour Law, overtime work in extraordinary situations, which is the last state, is the overtime work performed during mobilisation and in workplaces that meet the requirements of national defence, provided that it does not exceed this period.
Article 41 of the Labour Law contains regulations on normal overtime work and overtime pay. Accordingly, in order for the work to be overtime work in Turkey, it must exceed 45 hours, which is the sum of weekly working hours, and then, if the principle of equalization is applied in the workplace, it must exceed the working hours of the weeks according to the sum of the weeks worked at the end of 2 months according to Article 63 of the Labour Law or at the end of maximum 4 months according to the collective bargaining agreement. For example, if equalization is applied and it is determined as 2 months, even if the work exceeds 45 hours in some weeks within these two months, since there are 8 weeks within 2 months, the total work at the end of 2 months will have to be more than 360 hours.
As mentioned above, Article 17ç of the Law No. 6331 should also be taken into consideration. In paragraph 7 of this article, which determines the general principles regarding the provision of occupational health and safety training to employees, if these trainings exceed the weekly working time and exceed 45 hours, this should be considered as overtime work in Turkey.
Although the weekly working time limit accepted in order to be entitled to overtime wages within the labour legislation is 45 hours, weekly working time below this limit is encountered in the health legislation. According to Article 1 of the Law No. 3153 on Radiology, Radiom and Electrical Treatment and Other Physiotherapy Establishments and the provisions of the Regulation on Radiation Dose Limits and Working Principles of Personnel Working with ionising Radiation Sources in Health Services, the weekly working time of the places where diagnosis, treatment and research are carried out with ionising radiation and the personnel working in these works or procedures is limited to 35 hours. Accordingly, first of all, although the overtime work of the workers working in such jobs is prohibited, if they are employed more than 35 hours a week, they should be entitled to overtime wages. Additionally, if the personnel working in these works are called to the duty shift outside of normal working hours, the actual working time (35 hours) will be included in this shift.
As a general rule, working hours are added up, and if the total time exceeds 45 hours, overtime work is mentioned. However, in some cases in labour law, overtime work is evaluated by looking at the daily working time, regardless of the weekly total. Accordingly, the regulations are based on the fact that it is specifically prohibited to exceed a certain period of daily working time. These cases are
- According to Article 63 of the Labour Law, the daily working time is limited to a maximum of 11 hours, considering equalisation, and the work exceeding this limit,
- According to Article 69 of the Labour Law, the night working time is 7.5 hours. Hours exceeding this (since more than 7.5 hours of work can be done in tourism, private security and health services provided that the written consent of the worker is obtained for night work, the total weekly working hours should be taken into consideration here).
- Since the daily working time is limited to a maximum of seven and a half hours or less according to the job with Article 6 of the regulation on the works that should be worked for a maximum of seven and a half hours or less per day in terms of health rules issued in accordance with Article 30/a of the Occupational Health and Safety Law No. 6331, the work exceeding seven and a half hours on a daily basis or the time determined according to the job,
- 30/a of the Occupational Health and Safety Law No. 6331, issued in accordance with Article 30 of the Law No. 6331 on Occupational Health and Safety
- Since Article 9 of the Regulation on the Conditions of Employment of Women and Breastfeeding Rooms and Child Care Facilities prohibits pregnant or breastfeeding female employees from working more than seven and a half hours a day, work exceeding seven and a half hours a day for pregnant or breastfeeding female employees,
In addition to these, the following issues should also be taken into consideration in case of overtime work.
In order for the work to be overtime work, this request must come from the employer. This request may be in writing. Apart from this, the work done by the employee voluntarily is not considered as overtime work. However, in this case, if the work is done outside of working hours and the employer or his representative does not stop the work even though he is aware of the work, an implicit acceptance can be mentioned.
Again, in order to perform overtime work, the consent of the employee must be obtained. According to Article 9 of the Regulation, the approval of the employee is required for the work to be carried out for compulsory reasons or in extraordinary situations.
Approval can be obtained when the labour contract is concluded or when the need arises and these documents should be kept in the employee’s personnel file. If the employee does not want to do overtime work or working fro exessive periods, he/she may withdraw this consent by giving a written notice to the employer thirty days in advance.
The wage to be paid for each hour of overtime work in Turkey can be calculated and paid by increasing the amount of the normal working wage per hour by fifty per cent. The only exception is for underground mine workers. According to Article 42 or 43 of the Law, the weekly working hours will be 37.5 hours, not 45 hours, and the overtime wage to be paid to the workers will be calculated at a rate of 100%, not 50%.
According to Article 41 of the Law and Article 6 of the Regulation, the person who works overtime may, if he/she wishes, use free time for one hour and thirty minutes for each hour he/she works overtime in Turkey instead of the increased wage for this work. The worker may use this free time within the working period within a six-month period and without any deduction in his/her wage by applying in writing. The employer shall determine when to use this free time within the prescribed period, in accordance with the requirements of the work and the employer. Free time shall not be used on holidays and days off.
According to Article 41 of the Law and Article 7 of the Regulation, overtime work shall not be performed in underground mining works, except for the cases listed in Articles 42 and 43 of the Law, in short or limited-term works based on health reasons written in Article 63 of the Law, in night work specified in Article 69, and in underground and underwater works such as mines, cable laying, sewerage, tunnel construction.
Again, with Article 8 of the regulation, overtime work in Turkey is prohibited for workers under the age of 18, workers who have not yet reached the age of 18, workers who are documented by the report of the workplace physician that their health does not allow them to work even if they have previously or subsequently accepted overtime work with the employment contract or collective bargaining agreement, workers who have recently given birth and breastfeeding children, and part-time workers.
The total duration of overtime work to be done during the year cannot exceed 270 hours. The year mentioned here is a calendar year.
According to Article 5 of the Regulation, the time limit is not related to the workplaces and the work carried out, but to the individuals of the workers. For this reason, the question will be whether 270 hours per year has been exceeded for each worker.
In the calculation of the overtime working hours of 270 hours, the periods less than half an hour will be counted as half an hour and the periods more than half an hour will be counted as one hour.
The Law does not set a maximum duration for a day. Article 63 and the relevant regulations limit the daily working time to a maximum of 11 hours. It shall not be more than 3.5 hours if the workplace works 7.5 hours, 2 hours if the workplace works 9 hours, and 3 hours if the workplace works 8 hours during the week due to working 5 hours on Saturday.
Rest breaks should be given between normal work and overtime work in Turkey.
In case of overtime work due to compulsory reasons, overworked workers should be given an appropriate rest period. In cases of extraordinary overtime work, depending on the type of work and the degree of need, the President may increase the daily working time to the maximum working capacity of the worker. In case of overtime work due to compulsory reasons and extraordinary circumstances, the first paragraph of Article 41 on overtime work, the second paragraph regulating the basis of remuneration and the third paragraph regulating overtime work shall apply. Therefore, free time will not be used instead of wages. The annual time limitation will be eliminated and approval will not be required.
According to Article 10 of the Regulation, the employer shall issue a document showing the working hours of the employees who work overtime and keep it in the employee personnel file.
In addition to these regulations in the labour law regarding overtime work, it is necessary to mention some other regulations in the occupational health and safety law numbered 6331. Accordingly, in some cases, employees are entitled to wages due to the nature of the regulations, even though they do not do their main job. Accordingly, if employees participate in occupational health and safety, the time spent in training is counted from their working hours. Additionally, in the event that the training periods exceed the weekly working hours, these periods will be considered as overtime work and working for excessive periods. Another regulation is the situation where employees take part in the occupational health and safety committees established in the workplace and attend the committee meetings. According to Article 9/ç of the Regulation on Occupational Health and Safety Committees, the periods to be spent in the committee meetings will be counted as working time.
In both of these cases, a reflection of the counting of the specified periods from the working time may show itself in the determination of overtime working and working for excessive periods. Accordingly, in a workplace where the working hours are determined as 40 hours for example, if the working hours together with the periods spent in training fill 40 hours per week and do not fill 45 hours, the difference between 40 hours and 45 hours should be paid as overtime work and if 45 hours are filled, the difference above 45 hours should be paid to the employee as overtime wage in Turkey.
In the case of training, this conclusion can be reached very easily based on the provision of the law. In the case of participation in the activities of the Board, this conclusion can only be reached in accordance with the principle of interpretation in favor of the employee.