Scope of the Working Hours of Employee and Overtime Payment 22 March 2018
Working hours have been defined as “the time which employee spends at the work where he has been employed” in the Article 3 of the “Regulation on the Working Hours regarding the Labor Law” which has been published in the Official Gazette dated 06.04.2004. In addition to this period which is named as actual work period, some situations are also considered as working time, which are accepted either by Law or by Supreme Court.
Therefore, wage of the employee is consisted of the total of the time he spent at work by actually working and the time which is named as hypothetical working period and regarded as working time.
Situations which are accepted as working time have been listed in the Article 66 of the Labor Law as follows:
“The following periods shall be considered as the employee's daily working hours:
a) the time required for employees employed in mines, stone quarries or any other underground or underwater work to descend into the pit or workings or to the actual workplace and to return there from to the surface
b) travelling time, if the employee is sent by the employer to a place outside the establishment,
c) the time during which the employee has no work to perform pending the arrival of new work but remains at the employer’s disposal,
d) the time during which the employee who ought to be performing work within the scope of his duties in the establishment is sent on an errand for his employer or is employed by him in his household or office, instead of performing his own duties,
e) the time allowed to a female employee who is a nursing mother to enable her to feed her child,
f) the time necessary for the normal and regular transportation of groups of employees engaged in the construction, maintenance, repair and alteration of railways, roads and bridges to and from a workplace at a distance from their place of residence.”
However, it is observed that in practice some other situations not listed in the Article such as break times or smoking breaks employees allowed to, are also included into daily working time via employment contract. When the time calculated via total of this time exceeds the limit determined by the law, exceeding time shall be considered as overtime working and consequently overtime payment should be made.
Overtime working has been defined as the time exceeding the legal limit of daily work time due to reasons such as the characteristic of the work or increasing production in thee Article 35 of the Labor Law and under the Article 41 of the same Law “Overtime work is work which, under conditions specified in this Act, exceeds forty-five hours a week.”
Regarding a claim that the time spent on the way should be considered as working time and it should be included into the calculation of overtime payment when it exceeds weekly hour limit; the Supreme Court ruled that these will apply only to the situation listed within the paragraph 1/f of the Article 66 of the Labor Law which are construction, maintenance, repair and alteration of railways, roads and bridges when the conditions are met and stated that “In accordance with the last paragraph of the same Article, time spent in the vehicles on the way to work which is not from the nature of the work but provided by the employer solely as a form of amenity shall not be regarded as work time. Therefore, ruling that the time plaintiff spent in shuttle to and from the work is regarded as working time is mistaken” (22nd Civil Chamber of Supreme Court, 17.01.2014, E. 2013/1986, K. 2014/296). On contrary to this ruling of the Supreme Court, the time employee spent in transportation is regarded as working time in European Union countries, in accordance with the decision of the Court of Justice of European Union.
In another case, General Assembly of Civil Chambers of the Supreme Court ruled that no payment could be demanded for the overtime work done without an approval and instruction of the employer (General Assembly of Civil Chambers of the Supreme Court, 03.03.1982, E. 1980/9-1702 K. 1982/932).
In a decision regarding the overtime payment of senior executives, Supreme Court stated that as the high salary has been determined for these people, it is foreseeable that they will overwork and since they determine their own working hours they cannot demand overtime work pay (9th Civil Chamber of Supreme Court, 07.04.1982, E. 1982/2412 K. 1982/4334). However; in a recent decision, General Assembly of Civil Chambers of the Supreme Court ruled that even though it is not possible for senior executives to demand overtime work pay in principle, these people shall be entitled to have overtime payment for their work which exceeds 270 hours per year (General Assembly of Civil Chambers of the Supreme Court, 20.2.2013, E. 2012/9-843 K. 2013/253).
As it is seen, even though it is regulated in the Law, many issues on how overtime work pay will be calculated are explained though the decisions of the Supreme Court. In order to avoid for employers of being in a disadvantageous situation in case of a disagreement, it is important to receive legal consultancy from expert lawyers to follow legislation and judicial decisions.
Türkçe Versiyonu İçin
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