In working life, due to the chemical properties of certain raw materials or inputs used in the work, or due to the fact that the work in Turkey is carried out underground or underwater or due to other characteristics, it may pose a health and safety hazard for workers working in that workplace to work more than seven and a half hours a day, or workers should work less than seven and a half hours for the same reasons.
The concept of jobs requiring seven and a half hours or less of work per day in Turkey is derived from the Occupational Health and Safety Law No. 6331. Article 30/a of the Law stipulates the issuance of relevant regulations on a number of issues that are specific in terms of health and safety, and it is requested to issue a special regulation on jobs that require less work in terms of health rules. Therefore, it is accepted that this concept is a special sub-concept of the concept of occupational health and safety. With the Law No. 6331, the concept previously defined in the fourth paragraph of Article 63 of the Labour Law No. 4857 was completely taken under the concept of occupational health and safety with the removal of this paragraph by the Law No. 6331.
The aforementioned regulation was published in the Official Gazette dated 16.07.2013 and numbered 28709 under the name of Regulation on the Work Requiring a Maximum of Seven and a Half Hours or Less per Day in Terms of Health Rules and entered into force.
“Number of jobs in the working life in Turkey that limiting the working time”
As stated above, there are a number of jobs in the working life in Turkey that limiting the working time in terms of health rules in these jobs is important in terms of human and occupational health and occupational safety. Due to the chemical properties of some raw materials or inputs used in these works, or the fact that the work is carried out underground or under water, or other adverse features on human health, it is accepted that it would be dangerous for workers working in that workplace to work more than seven and a half hours. For the same reasons, it is foreseen to work less than seven and a half hours in some works.
Article 4 of the Regulation lists the jobs that can be worked for a maximum of seven and a half hours a day, and Article 5 specifies the maximum hours that can be worked in each job separately and determines the jobs that can be worked for less than seven and a half hours. Accordingly, if the work performed falls within the scope of Article 4 of the regulation, it is not possible for the workers to work more than seven and a half hours. If the work is a job listed in Article 5, then the working hours in that subparagraph cannot be exceeded.
On the other hand, the importance of the regulations in the regulation, which have the characteristic of limitation in terms of working hours, in terms of occupational health and safety, and administrative fines have been stipulated.
The regulations in the Regulation are related to public law. However, they are among the regulations that can be amended in favour of the employee, and for this reason, it can be said that the provisions of the regulation on working hours have the characteristics of a relatively mandatory legal norm. Accordingly, it is possible to decrease the working hours stipulated in the regulation in favour of the employee, but it is not possible to increase them to the detriment of the employee by an employment contract or collective bargaining agreement.
In this context, as will be discussed below, a number of prohibitions and notification obligations have been introduced. The regulations on the prohibited subjects (prohibition of assigning other work and overtime work in Turkey) and the employer’s notification obligation have the characteristics of an absolute mandatory legal norm and therefore cannot be agreed otherwise in the contracts.
In the said regulation, a number of special regulations have also been introduced in relation to jobs that require a maximum of seven and a half hours or less of work per day. These special regulations are categorised under four headings: the prohibition of other employment, the prohibition of overtime work, the obligation to notify and objections.
According to Article 6 of the Regulation, employees working in jobs covered by the Regulation cannot be employed in any other job after the maximum daily working hours specified in Articles 4 and 5.
According to this limitation, a worker who works seven and a half hours a day or less in a job covered by the Regulation, for example 6 hours in a job where there is a danger of being affected by carbon sulphide, cannot be employed in any other job after these hours. For this reason, it is possible for the employer to give the worker another job on the days when these jobs are not performed, if there is no contrary provision in the employment contract or collective labour agreement or if the contractual order provides this opportunity.
According to Article 7 of the Regulation, it is not possible to perform overtime work in the works covered by the Regulation. The same issue is also stipulated in the Regulation on overtime work and working for exessive periods under the concept of work where overtime work is prohibited (Article 7).
As it will be noted, overtime work is prohibited in Turkey in these works, and the concept of overtime work, which is introduced for periods exceeding the weekly working time but not exceeding 45 hours in cases where the weekly working time is lowered by contract in Article 41 of the Labour Law No. 4857, is not mentioned. If an employee who performs a job stipulated in the regulation is required to work for seven and a half hours a day or 6 hours a day according to his/her job, if it is stipulated to work less by the employment contract, it seems possible for the employee to work overtime for the periods exceeding the time stipulated in the contract but not exceeding the time stipulated in the regulation.
Although this is the legal regulation, in the practice of working life, it is seen that workers working in these jobs are made to work in Turkey more than the prescribed periods.
In this case, two types of problems arise. The first one is what should be considered as the work exceeding the prescribed periods, considering that overtime work is explicitly prohibited. The other problem arises when the prescribed periods are exceeded on a daily or weekly scale, especially in a job that requires less than seven and a half hours of work, but cannot exceed 45 hours in total per week.
Since the daily working time in these jobs is especially limited on a daily basis, if the daily working time is exceeded, these exceeded periods should be accepted as overtime work on a daily basis, regardless of the weekly total, and the employee should be paid overtime wages.
In the event that the employer gives an instruction contrary to these prohibitions, since the regulation is related to public order, the employee is not obliged to fulfil this instruction. This does not give the employer the right to terminate for just cause. The fact that the employee has not fulfilled this instruction cannot be interpreted as a valid reason for termination arising from the employee’s behavior. In the event of a possible termination, the termination will be invalid and the reinstatement of the employee may be possible if the other conditions related to this issue are also met.
According to Article 8 of the Regulation, employers of workplaces where one or more of the listed jobs are carried out on a permanent basis are required to notify the Provincial Directorate of Labour and Employment Agency, where the work in Turkey is carried out, in writing, the types and qualifications of these jobs, the time of their execution, the number of workers employed in the aforementioned jobs, separately for men and women, before starting work.
However, an exemption has been introduced in the provisional Article 1. Accordingly, the notification obligation under Article 8 will not apply to the workplaces and workplaces that were previously notified within the scope of the former regulation (Official Gazette 15.05.2004/25434, Regulation on the works that should only be worked for seven and a half hours or less per day in terms of health rules).
Another issue regulated under the Regulation is the resolution of objections that may arise about whether a work falls within the scope of the Regulation and whether a new work will be included in the scope of the Regulation. According to Article 9, objections regarding whether the work performed in the workplace is within the scope of Articles 4 and 5, as well as applications regarding work in Turkey that is not included in Articles 4 and 5, will be decided by the Ministry of Labour and Social Security, taking into account the characteristics of the materials used, the technology applied and the technical and administrative collective protection measures taken, and by taking the opinion of the Ministry of Health.