Regulatory Framework of Flexible Working Concept in Turkey

With globalization, development of technology, transformation of the workforce as well as the development of labor unions and law, and economical progresses, various flexible working concepts have been adopted throughout the world and into Turkish law. As the world is currently experiencing obstacles to physically attend to workplaces due to Covid-19 pandemic, flexible working is once again a popular discussion topic. This article aims to concentrate on the regulatory framework of flexible working concepts under the Labor Law numbered 4857 (“Labor Law”) and its secondary legislation.

 

Weekly Working Time

 

 

According to the Article 63 of the Labor Law, in principle, weekly working time is utmost forty-five hours whereas it is possible to determine the weekly working time less than forty hours. Unless otherwise decided, working time shall be divided equally by the days of the week worked at the establishment. Pursuant to Article 4 of the Regulation on Working Time Regarding Labor Law (“Regulation on Working Time”), in workplaces where one of the working days of the week is part-time, daily working time shall be determined by dividing the weekly working time by the number of working days after the partial worked period is deducted from the weekly working time.

 

Night Time Working

 

Night time work is stipulated under Article 69 of the Labor Law, accordingly, for the purposes of working life, “night” means the part of the day, in principle, beginning not later than 20.00 o’clock and ending not earlier than 6.00 o’clock, and lasting not longer than 11 hours in any case. Night work for employees must not exceed seven and a half hours unless the work is related to tourism, private security or healthcare services and prior written consent of the employee is obtained.

 

In establishments where operations are carried on by alternating shifts of employees as day and night, the alternation of shifts must be so arranged that the employees are engaged on night work for not more than one week and are then engaged on day work the following week; alternation of work on night and day shifts may also be carried out on a two-week basis. The employee whose shift will be changed must not be engaged on the other shift unless allowed a minimum rest break of eleven hours.

 

The preparatory, complementary, and cleaning operations generally carried out at an establishment before and after regular working hours is regulated under the Regulation on Preparatory, Complementary, and Cleaning Operations, issued in accordance with the Article 70 of the Labor Law. Accordingly, employees to carry out the preparatory, complementary, and cleaning operations before or after the daily work hours in addition to main daily work determined may only work for two hours more.

 

Condensed Workweeks and Equalization Period

 

Pursuant to Article 63 of the Labor Law, provided that the parties have so agreed, working time may be divided by the days of the week worked in different forms, on condition that the daily working time is utmost eleven hours. In this case, within a time period of two months (which may be increased up to four months by collective agreement), the average weekly working time of the employee shall not exceed the abovementioned weekly working time of forty-five hours. As per Article 5 of the Regulation on Working Time, working time is equalized by following condensed week(s) with equalization period.

 

 

Accordingly, if an employee works three condensed weeks where working time is fifty five hours per week, with an equalizing period of three weeks where working time is thirty five hours per week, in average, weekly working time of forty five hours would not have been exceeded.  As per Article 5 of the Regulation on Working Time, daily and weekly working time during equalization period and start and end dates of equalization period is determined by the employer.

 

As the parties to the employment contract may agree upon condensed work weeks under the employment contract, it is also possible for the employees to accept the company policy prepared by the employer regarding such matter.[1]

 

Compressed Workweeks

 

Pursuant to the Compressed Workweeks, Conditions of Work and Employment Program Social Protection Sector Information Sheet No. WT-13 dated August 2004 of the International Labor Office (“ILO”), compressed workweeks involve working hours being scheduled over fewer than normal working days and result in longer working days, but fewer days being worked each week.

 

Even though not distinctively stipulated, pursuant to Article 63 of the Labor Law allows for workplaces to arrange working time to be full-time, but work on fewer week days (compressed workweeks) provided that abovementioned daily and weekly working time limits are not exceeded. Subsequently, as the maximum weekly working time stipulated under the Labor Law is not exceeded, it is not necessary to apply equalization period.[2] In other words, working hours of a work place can be arranged as 09:00 to 20:00 for four days a week with an hour of rest time daily, which would not be deemed working time as per Article 68 of the Labor Law, where weekly work time would be four days or forty hours.

 

Part-Time Work

 

According to the Article 13 of the Labor Law regarding part-time working, the employment contract where the weekly working time of the employee has been fixed considerably shorter in relation to a comparable employee working full-time shall be considered as a part-time employment contract. As per the Regulation on Working Time, up to two thirds, including two thirds, of a comparable full-time work in a workplace is deemed part-time work[3]. It is possible to arrange part-time work as full work-days for certain days of the week or certain hours every day of a workweek.

 

An employee working under a part-time employment contract must not be subjected to differential treatment in comparison to a comparable full-time employee solely because his contract is part-time, unless there is a justifiable cause for differential treatment. The divisible benefits to be accorded to a part-time employee in relation to wages and other monetary benefits must be paid on a pro rata basis based on a comparable employee working full-time. The comparable employee is the one who is employed full-time in the same or a similar job in the establishment. In the event there is not such an employee in the establishment, an employee with a full-time contract performing the same or similar job in an appropriate establishment which falls into the same branch of activity will be considered as the comparable employee.

 

If there are vacant positions suited to the qualifications of employees working in the establishment, the employees’ requests to move into full-time from part-time jobs or vice versa shall be taken into consideration; vacancies shall be announced without delay.

 

On-Call Work

 

As explained by ILO, on-call working arrangements may involve very short hours or no predictable fixed hours, and the employer has no obligation to provide a set number of hours of work.[4] Under Article 14 of the Labor Law, on-call work is a form of part-time work where the performance of work by the employee upon the emergence of the need for his services is agreed upon in written form. 

 

Under on-call employment contracts, working days per week, month, or year and daily working hours can be determined, otherwise, working time is deemed to be determined twenty hours per week and daily working hours must be a minimum of four consecutive hours at each call. The employee would be entitled to earn wage for the time determined regarding on-call work irrespective of whether or not the employee has been engaged in work.

 

Working from Home (Remote Working)

 

Working from home or another location is allowed pursuant to the Article 14 of the Labor Law, based on the principle that the employee fulfills the work requirements at home or with the means of technological communication outside the workplace within the scope of the work organization created by the employer.

 

Provisions relating to the definition of the job, the manner in which it is carried out, the time and place of the work, the payment of wages and salaries, the equipment provided by the employer and the obligations related thereto, the employer's communication with the employee and general and specific working conditions should be determined in the contract.

 

Employees cannot be treated differently from the comparable worker due to the nature of the employment contract, unless there is a fundamental reason. The employer is obliged to inform the employee about the occupational health and safety precautions taking into account the nature of the work done by the employee and to provide necessary training, to provide health care supervision and to take necessary work safety measures related to the equipment provided.

 

Subsequently, working partially from home is also possible pursuant to the Labor Law. In this case, above explained provisions of the Article 14 of the Labor Law regarding working from home or another location would apply.

 

Parental Leave and Career Leave

 

According to the Article 74 of the Labor Law, in principle, female employees must not be engaged in work for a total period of sixteen weeks, eight weeks before confinement and eight weeks after confinement. In case of multiple pregnancy, an extra two-week period shall be added to the eight weeks before confinement during which female employees must not work. However, a female employee whose health condition is suitable as approved by a physician’s certificate may continue to work if she prefers to until three weeks before delivery. In this case the time worked shall be added to the maternal leave period after confinement.

 

In case of maternal death at birth, the periods of maternal leave that could not be taken are provided to the dad. One of the adopting parents of a child who is younger than three years old may take eight weeks of parental leave. As these rights stipulated under the Labor Law are relatively statutory, it is possible for employers to entitle their employees to broader rights such as paternal leave without prerequisite of maternal death. In addition, the time periods mentioned above may be increased before and after confinement if deemed necessary in view of the female employee's health and the nature of her work. The increased time increments shall be indicated in the physician’s report.

 

The female employee shall be granted leave with pay for periodic examinations during her pregnancy. Female employees shall be allowed a total of one and a half hour nursing leave in order to enable them to feed their children below the age of one. The employee shall decide herself at what times and in how many instalments she will use this leave. The length of the nursing leave shall be treated as part of the daily working time.

 

Pursuant to Article 74 of the Labor Law, for the purpose of caring for and raising the child after the conclusion of maternity leave after birth and for the sake of the female or male employees who adopt a child who is younger than three years old, an unpaid leave for half of the weekly working period for sixty days for first childbirth, one hundred and twenty days for second childbirth, and one hundred eighty days for third and later childbirths is provided, with the condition that the child is alive. In the case of multiple births, this unpaid leave period shall be increased thirty days and if the child is born with disabilities, this period shall be three hundred and sixty days. If the employee so wishes, the mother or one of the adopting parents shall be granted an unpaid leave of up to six months after the expiry of the sixteen weeks, in the case adopting a child younger than three years old. This period shall not be considered in determining the employee’s one year of service for entitlement to annual leave with pay.

 

Additionally, pursuant to the Labor Law Article 13, after the end of the maternal leave, one of the parents may request to work part-time after the end of periods determined in Article 74 of the Labor Law, until the beginning of the month following the start of the child’s obligatory primary school age. This claim cannot be deemed cause of termination. The employee who started to work part-time under the scope of said provision may return to full-time work in order not to benefit from this right for the same child again. If the part-time employee starts working full-time, the work contract of the recruited employee would end automatically. The employee who prefers to use of such right or to return to full-time employment shall notify the employer in writing at least one month in advance. If one of the parents does not work, the spouse cannot claim a part-time job under said provision. One of the adopting parents of a child who is younger than three years old may also benefit from this provision.

 

Sabbatical Leave and Educational Leave

 

Sabbatical leave or educational leave are not regulated under the Labor Law or its secondary legislation, however, it is possible to impose through an agreement between the employer and the employee. Similarly, a ‘sabbatical policy’ or an ‘educational leave policy’ may exist within a company, whereby employees are able to take an agreed amount of time off.

 

In addition, the employee may undertake to work for the employer for a certain period in return for the employer to provide or pay for an educational program or training.[5]

 

Annualized Hours and Staggered Hours

 

Pursuant to the Annualized Hours (Hours-Averaging) Schemes, Conditions of Work and Employment Programme Social Protection Sector Information Sheet No. WT-12 dated May 2004 of ILO, annualized hours schemes allow variations in weekly hours of work, while requiring that a fixed annual total or a weekly average of working hours be reached. Further, variations in weekly hours must respect established minimum and maximum limits on daily and weekly hours. Annualized hours concept is not regulated under the Labor Law or its secondary legislation.

 

As per the Staggered Hours Schemes, Conditions of Work and Employment Programme Social Protection Sector Information Sheet No. WT-9 dated June 2004 of ILO, under staggered hours schemes, employees or groups of employees start and finish work at slightly different times. However, once these starting and finishing times have been chosen (or fixed by the employer), they remain unchanged. Thus, these schemes should not be confused with annualized hours scheme. As per the Regulation on Working Times, it is possible to arrange start and end hours differently for employees in accordance with the nature of the work.

 

Job-Sharing

 

Pursuant to Work-Sharing and Job-Sharing, Conditions of Work and Employment Programme Social Protection Sector Information Sheet No. WT-17 dated August 2004 of ILO, job-sharing is referred as a voluntary arrangement whereby two persons take joint responsibility for one full-time job and divide the time they spend on it according to specific arrangements made with the employer. A common form of job-sharing is to split one full-time job into two part-time jobs. With this respect, wage, compensations and liabilities are also shared between the employees who are job-sharing. Working time for job-sharing employees can be arranged as dividing work days, days of the workweek, weeks of the months, etc. between the job-sharing employees.

 

Job-sharing concept is not regulated under the Labor Law or its secondary legislation, however, it is possible to impose through an agreement between the employer and the employee. Accordingly, a ‘job-sharing policy’ may exist within a company, whereby employees’ job description may differ accordingly.

 

Author: Simge Kılıç