Working Time, Overtime and Additional Hours

In employment law, hours determine not only time but also pay and legal liability. Labour Law No. 4857 (İş Kanunu) sets the maximum working time and regulates under which conditions and at what rate work exceeding normal working time is to be remunerated. The correct recording and remuneration of overtime is one of the most frequent subjects of dispute before the Turkish labour courts. Incorrect practices may lead to substantial retroactive claims, administrative fines and even – through non-payment of wages – the possibility for the employee to terminate for just cause with severance pay.

This article is based on employment relationships governed by Labour Law No. 4857; different rules may apply to work subject to the Maritime Labour Law, the Press Labour Law and special working time regimes.

Contents

• How is statutory working time regulated in Turkish law?
• What is the balancing period?
• What is the difference between overtime and additional hours?
• How are overtime and additional hours remunerated?
• Which upper limits and consent requirements apply?
• In which types of work and for which employees is overtime prohibited?
• Can time off be taken instead of pay?
• Can overtime pay be included in the monthly wage?
• How is overtime proved in a dispute?
• Which other working time rules must be observed?
• Conclusion

How is statutory working time regulated in Turkish law?

Pursuant to Article 63 of the Labour Law, normal working time is a maximum of 45 hours per week. Unless otherwise agreed, this time is distributed equally over the working days of the workplace; this amounts to 7.5 hours per day at workplaces with a six-day week and 9 hours per day at workplaces with a five-day week. The parties may agree on a different distribution; however, daily working time may not exceed 11 hours. This daily upper limit is mandatory and cannot be exceeded even by agreement.

Working time is the time the employee spends at work or at the employer's disposal. Under Article 66 of the Labour Law, certain periods count as working time even if no work is actually performed, for example travel time when the employer sends the employee to another place, periods during which the employee is kept waiting ready for work but is not given work, and nursing leave periods of female employees.

In underground mining work, by contrast, weekly working time is a maximum of 37.5 hours and daily working time a maximum of 7.5 hours; overtime may not be required except in compelling and extraordinary circumstances.

What is the balancing period?

The parties may agree that weekly working time is not distributed equally across the weeks. In this case, working time is averaged over a period known as the balancing period (denkleştirme). The average weekly working time within the period may not exceed the agreed normal weekly working time and in any event the statutory limit of 45 hours.

The balancing period is, as a rule, two months; it may be extended to up to four months by a collective labour agreement. In the tourism sector, the period is, as a rule, four months and at most six months by collective labour agreement. Exceeding 45 hours in certain weeks within the period does not constitute overtime as long as the average weekly working time at the end of the balancing period does not exceed the agreed normal time and the daily limit of 11 hours is not breached. Under the Regulation on Working Time under the Labour Law, balancing requires a written agreement of the parties; in a dispute, the employer must prove that the conditions were met.

What is the difference between overtime and additional hours?

Article 41 of the Labour Law regulates two types of work exceeding normal working time, which differ in terms of definition and remuneration:

Overtime (fazla çalışma): Work exceeding the statutory weekly working time of 45 hours. As a rule, the assessment is made on a weekly rather than a daily basis.

Additional hours (fazla sürelerle çalışma): Where weekly working time has been set by contract below 45 hours – for example at 40 hours – the work between the agreed time and the statutory 45 hours.

There are two important exceptions to the weekly basis: hours exceeding 11 per day, and night work exceeding 7.5 hours in the absence of the sector exceptions and the written consent requirement under Article 69 of the Labour Law, are treated as overtime in the practice of the Court of Cassation even if the weekly total does not exceed 45 hours.

How are overtime and additional hours remunerated?

For each hour of overtime, the normal hourly wage plus a 50 per cent supplement is paid; overtime pay is thus 1.5 times the hourly wage. For additional hours, the supplement is 25 per cent; 1.25 times the hourly wage is paid. Collective labour agreements or employment contracts may provide for higher rates.

Calculation example

For an employee with a gross monthly wage of TL 45,000 and normal weekly working time of 45 hours, the hourly wage is TL 45,000 / 225 = TL 200. If the employee has worked ten hours of overtime in a month, overtime pay amounts to 10 × 200 × 1.5 = TL 3,000 gross. If an employee whose weekly working time has been set by contract at 40 hours is made to work up to 45 hours, the portion exceeding 40 hours is calculated at 1.25 times the normal hourly wage.

Special rules also apply to work on national holidays and public holidays: if the employee works on such a day, an additional day's wage is paid on top of the wage for that day.

Work on the weekly rest day is a claim distinct from work on national and public holidays. In the practice of the Court of Cassation, a monthly-paid employee who works on the weekly rest day is paid, in addition to the weekly rest day pay of one day included in the monthly wage, a further day's wage with a 50 per cent supplement for the day worked; the total remuneration for that day thus amounts to 2.5 days' wages.

Which upper limits and consent requirements apply?

Requiring overtime is subject to statutory limits:

• The total amount of overtime may not exceed 270 hours per employee per year. Exceeding this limit does not extinguish the right to pay for the hours worked; it also gives rise to a risk of administrative sanctions.
• Overtime and additional hours require the employee's written consent. The consent is obtained when the employment contract is concluded or when the need arises and is kept in the personnel file. The employee may withdraw the consent by giving the employer 30 days' prior written notice; the withdrawal takes effect at the end of the 30-day period.
• The normal consent requirement does not apply to overtime performed for compelling reasons (breakdown, risk of breakdown, urgent work on machinery or equipment, or force majeure) or to extraordinary overtime that may be ordered by the President of the Republic during mobilisation. In these cases, too, the special time and pay rules of the law apply.

In which types of work and for which employees is overtime prohibited?

Without prejudice to the special provisions on compelling and extraordinary overtime, overtime may not be required in certain types of work or for certain groups of employees. These are in particular:

• Work which, for health reasons, may be performed for only 7.5 hours a day or less
• Work carried out during the period defined as night (the special sector exceptions under Article 69 of the Labour Law remain reserved)
• Work carried out underground or under water, such as mining, cable laying, sewerage and tunnel construction
• Employees under the age of 18
• Pregnant female employees, female employees who have recently given birth and breastfeeding female employees
• Employees working under part-time employment contracts; they may not be required to work additional hours either
• Employees whose state of health is documented by a medical report as unsuitable for overtime

Can time off be taken instead of pay?

The employee may request in writing to take time off instead of the supplemented pay. For each hour of overtime, one hour and 30 minutes of time off is granted, and for each hour of additional hours, one hour and 15 minutes. The employee takes the time off earned within six months, after giving the employer prior written notice, from the date determined by the employer according to the requirements of the work or the workplace, on working days, without interruption and without deduction of wages. Time off cannot be granted on statutory or contractual holidays or leave days; nor can the employer unilaterally impose time off instead of supplemented pay. If the time off is not granted in full or in part within the six-month period, or if the employment contract ends before the time off has been taken, the supplemented pay corresponding to the time not granted must be paid to the employee.

Can overtime pay be included in the monthly wage?

Clauses stating that overtime pay is included in the monthly wage are recognised by the Court of Cassation as valid only to a limited extent. The clause must be clear, the wage must be above the minimum wage, and the difference between the minimum wage and the agreed wage must cover the remuneration for the included overtime. The clause has effect for a maximum of 270 hours per year (22.5 hours per month; approximately 5.2 hours per week); work exceeding this limit is paid separately. Such a clause does not release the employer from the obligation to record working time and to observe the 270-hour limit.

A senior executive title alone likewise does not extinguish the claim for overtime pay. However, the overtime claim of an executive who actually determines his or her own working days and hours, who is not subject to the orders and instructions of another manager and who receives a wage commensurate with the position may be rejected in the practice of the Court of Cassation; by contrast, for an executive who receives instructions on working arrangements from a superior, the specific working arrangements are examined separately.

How is overtime proved in a dispute?

The burden of proving that overtime was worked lies with the employee; the burden of proving that it was paid for or compensated by time off lies with the employer. Timesheets and working time records, electronic entry and exit and shift records, duty rosters, e-mail and message correspondence and witness statements are assessed as evidence. The employer is obliged to prepare a document showing the overtime and additional hours of each employee, to keep a signed copy in the personnel file and to show the relevant pay clearly on the payslip.

A payslip that includes accrued overtime and has been signed by the employee without reservation is strong evidence for the period in which the payment shown on the payslip was made; unless the payslip is alleged to be forged, a claim of further overtime can be proved only by written evidence. If the payslip is unsigned or the accruals are symbolic or fixed, the specific evidence is assessed separately. The overtime claim is subject to a five-year limitation period running from the date on which each wage became due; an application to a mediator is mandatory before an action is filed.

Which other working time rules must be observed?

Rest breaks (Article 68): A break of 15 minutes is granted for daily working time of up to four hours, 30 minutes for more than four and up to 7.5 hours, and one hour for more than 7.5 hours. Rest breaks do not count as working time.

Night work (Article 69): “Night” within the meaning of the law is the period beginning at 20:00 at the latest and ending at 06:00 at the earliest, and lasting in any event no more than 11 hours. As a rule, an employee's night work may not exceed 7.5 hours. In tourism, private security and health services, as well as in petroleum exploration, prospecting and drilling activities under Turkish Petroleum Law No. 6491, night work exceeding 7.5 hours may be required with the employee's written consent. In the absence of these exceptions and valid written consent, night work exceeding 7.5 hours is treated as overtime irrespective of the weekly total. Before an employee who is to work at night starts work, it must be documented by a medical report that his or her state of health is suitable, and the employee must undergo periodic health checks at least every two years.

Weekly rest day (Article 46): An uninterrupted rest period of at least 24 hours is granted within each seven-day period; the wage for this day is paid in full even though no work is performed.

Compensatory work (Article 64): Where work stops for compelling reasons, the workplace is closed before or after national holidays and public holidays, work falls considerably below normal working time for similar reasons, or the employee is granted leave at his or her request, the hours not worked may be made up within four months after the reason ceases to exist. Compensatory work does not count as overtime; it may not exceed the maximum daily working time of 11 hours, may not exceed three hours per day and may not be required on holidays.

Short-time work: If, due to a general economic, sectoral or regional crisis, a general epidemic or force majeure, weekly working hours at the workplace are temporarily reduced by at least one third or activity is suspended wholly or partly for at least four weeks, short-time work may be applied subject to a finding of eligibility by the Turkish Employment Agency (İŞKUR). As a rule, it is applied for a maximum of three months; it may be extended to up to six months by Presidential decision. If the employee meets the conditions of having been subject to an employment contract for the last 120 days and of having paid unemployment insurance premiums for at least 450 days in the last three years, a short-time work allowance is paid from the Unemployment Insurance Fund for the hours not worked.

Conclusion

Compliance with the statutory limits on working time and the correct distinction and remuneration of overtime and additional hours are among the employer's fundamental obligations and at the same time one of the greatest litigation risks in Turkish employment law. Written consents, observance of the 270-hour limit, careful drafting of inclusion clauses and a reliable record of working hours are the main means of reducing the risk.

A validly agreed balancing period also offers a flexible means of distributing working time as required; however, its conditions must be documented. In view of the five-year limitation period and the evidentiary requirements, employees should secure their claims without delay.

GEMS Schindhelm advises employers on the lawful structuring of working time models, balancing arrangements and overtime rules, and on the pursuit of and defence against overtime claims. This article is intended for general information purposes only and does not constitute a legal opinion or legal advice; each dispute must be assessed separately in light of the specific circumstances of the case and the legislation in force.