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Necdet Can Artüz
Bozoglu – Izgi Attorney Partnership, Istanbul
can.artuz@bi.legal

Simge Kublay
Bozoglu – Izgi Attorney Partnership, Istanbul
simge.kublay@bi.legal

 

Introduction

The main aim of labour law is to protect employees, who have a weaker position in labour relations than their employer. Employees’ social rights enjoy constitutional protection under the social principles of the Turkish state. The legislature’s approach in Turkey therefore favours employees, which is the case in all European countries. Employers are required to keep all records, such as each employee’s working hours, wages and annual leave forms. Employers should also establish a performance evaluation system at the workplace and apply it equally to employees within the scope of labour legislation, should they wish to terminate employment based on a performance evaluation (due to the employee’s incompetence).

Since the Turkish Court of Appeal’s approach is similar to that of the highest EU court (the Court of Justice of the European Union, the ‘CJEU’), it can be said that an employer’s obligation to keep working time records may be more complex in practice, because employer obligations that have not been regulated by the law are established by the case law of the Turkish Court of Appeal.

Legal framework

Standard working hours

In accordance with Article 63 of the Labour Law and Article 4 of the Regulation on Working Hours Regarding Labour Law, weekly working time is, in general terms and unless otherwise agreed, a maximum of forty-five hours. Working time is the period of time that an employee spends at the workplace where that person is employed. Periods of time that are stated in Article 66 of the Law, such as travelling time (if the employee has been assigned by the employer to a place away from the official workplace) or the time allowed to a female employee who is a nursing mother (to enable her to feed her child) are also deemed to be part of working time.

Unless decided otherwise, working time must be divided equally by the days of the week worked at the workplace. However, weekly working time may be divided into days worked in different forms, provided that the parties have agreed to this. There are three essential conditions that the employee should consider:

• daily working time must not exceed eleven hours;

• working time at night must not exceed seven and a half hours per day; and

• within a period of two months, the average weekly working time of the employee must not exceed the normal weekly working time (ie, 45 hours).

Overtime work

Overtime work is defined as work that exceeds forty-five hours in a week, under conditions specified by the law. Nonetheless, this definition does not apply in cases to which the principle of balancing applies, in which working time exceeding a total of forty-five hours a week will not be deemed overtime work, provided that the employee’s average working time does not exceed standard weekly working time over a period of two months. An employee who has performed overtime work has two recompensing options:

• payment (wages for each hour of overtime must be remunerated at one and a half times the normal hourly rate); or

• free time (the employee may use one hour and thirty minutes as free time for each hour of overtime work performed).

Moreover, total overtime work must not amount to more than two hundred and seventy hours in a year. If the employee chooses to take free time in return for overtime work, that person must notify the employer in advance and in writing. The employee may take such free time within six months, during working days and without any deductions from wages.

In accordance with Article 9/2 of the Regulation on Overtime Work and Extra Hours Regarding Labour Law, an employer who requires an employee to work overtime must obtain the mentioned consent during the signing of the employment contract, or when the need arises, and must keep this consent in the employee’s personal file. Employees who do not want to perform overtime work may withdraw their consent, provided that they notify their employer in writing thirty days in advance. The employer is obliged to issue a document showing the working hours of employees who have performed overtime work and keep a signed copy in those employees’ personal files. Payments arising from overtime work should be clearly stated on payrolls and pay slips.

Burden of proof

As a rule, the employee bears the burden of proof that overtime work has been performed. However, this burden should not be seen as being as great as an employer’s obligations in labour relations. In Turkey, when an employee files a lawsuit for unpaid overtime, that person is not required to prove the claim with written evidence, because witness statements are sufficient for convincing the court, if the employer is not able to submit more powerful written evidence to the contrary. Therefore, even though it is not obligatory for employers to keep working time records, this may greatly benefit the employer by increasing the chance of success in any lawsuit.

Moreover, another point worth mentioning is establishing a method of tracking. Pursuant to the CJEU’s decision dated 14 May 2019, a tracking system must be objective, reliable and accessible. These requirements also apply in Turkey, through the Turkish Court of Appeal’s decisions.

There are several possible methods of tracking working time in Turkey. Obtaining employees’ signatures on a list is a classic method used by employers, as are electronic cards, turnstile entrances and machines that recognise fingerprints, faces and eyes. That said, such personal data requires the explicit consent of the employees in writing, under the Law on the Protection of Personal Data No. 6698. The relevant written consent records must also be stored in the employees' personal files.

In practice, working time records submitted to case files are regarded as strong evidence in favour of the employer against an employee’s claims that merely rely on witness statements. In other words, if reliable working time records are submitted in advance, this could nullify the employee’s claims for overtime work supported by witness statements. However, if the employee alleges that overtime work was performed away from the office, such records would not be sufficient by themselves to dismiss the overtime work claims.

In addition, the employer’s obligation to submit payroll for signing by employees constitutes another source of evidence. Payrolls should include all the types of wage paid to an employee, together with any deductions. Therefore, payrolls are accepted as definite evidence, until it is possible to prove the opposite of what they state. If the signed payrolls show that overtime payments have been made, the employee is then obliged to prove overtime work through written evidence.

Exceptional working conditions

Tracking the working hours of employees is easier if the employees perform their work at a definite workplace. However, working from home has become prevalent in recent years. Moreover, there are several types of job that require work to be performed away from the office. The following question therefore appears when considering flexible working conditions: how can an employer track an employee’s working hours when that person is working from home, or away from the office? The Law does not have an answer to this question but, in practice, the Turkish Court of Appeal’s case law sets the framework for such exceptional working conditions.

In recent years, companies have set up online tracking systems to monitor working time rules for such types of work. In these online systems, employees are required to enter descriptions of the work they have performed each day. Thus, employers may track the working times of their employees, even though they are away from the workplace. Moreover, online tracking system records are seen by the courts as providing stronger evidence, because the employees themselves have entered the data into the system. Therefore, employees would be challenging their own statements and it would be difficult to convince the court of an opposite state of facts.

The Turkish Court of Appeal’s decisions and general approach in practice

The aforementioned decision of the CJEU, dated 14 May 2019, was issued upon a referral from a Madrid court regarding a lawsuit of CCOO, a Spanish trade union. The union was seeking a judgment to compel a Spanish branch of Germany’s Deutsche Bank, which was only recording overtime work, to establish a system for recording employees’ working hours. The Court said that, to ensure the rights of employees, under the EU’s Working Time Directive, Member States must require employers to set up objective, reliable and accessible systems enabling the duration of time worked each day to be measured by the employer. The Court stated that, without a system to record working hours, the employees could not determine the length of their working hours, making it ‘excessively difficult, if not impossible in practice, for workers to ensure that their rights are complied with.’ According to this, it is essential that employers record each employee’s working time, in order to enable employees to evidence their overtime working claims.

As mentioned above, since the law does not regulate in detail the parties’ obligations concerning the aforementioned principles, the Turkish Court of Appeal’s decisions have an indicative role in labour relations. Below is a summary of a recent decision, dated 2 May 2019, of the Supreme Court of Appeals Assembly of the Civil Chambers. This summary shows the Turkish courts’ approach to the subject of this article:

          ‘… an employee claiming overtime work should prove that claim in principle. The employee may prove overtime work with all kinds of evidence, since it is a de facto fact. In this context, it is possible to use witness statements, which is one of the frequently used types of evidence in labour law disputes. In addition, workplace records, especially documents showing entries to and exits from the workplace, and internal workplace correspondence are relevant in evidencing overtime work. However, if overtime work cannot be proved by such written documents, it is necessary to conclude with witness statements of the parties. Apart from that, some common facts may be considered at this point. It should also be taken into consideration whether any overtime work is dependent on the nature and intensity of the work actually performed by the employee.

On the other hand, since a payroll bearing the signature of an employee constitutes definitive evidence until the payroll’s forgery has been proven, it is assumed that the overtime pay stated on the payroll has been paid to the employee. In this case, if it is understood from the signed payroll that overtime pay has been provided, it is not possible to claim that the employee had actually performed more overtime work. However, even if the payrolls have been signed and there has been no objection, it is possible for the employee to prove more overtime work with a valid written document, than what has been stated on the payroll (..)'

In Turkey, employers do not have discretion in terms of choosing how to evidence an employee’s overtime work. As explained above, if the employer has not recorded working hours and therefore overtime work cannot be proved with a written document, the employee has a chance to prove the overtime work using all kinds of evidence, especially witness statements. In this regard, it is much easier in Turkey for employees to prove and obtain employment receivables and legal rights, such as overtime pay. Even though it is not obligatory, if an employer wishes to secure its position in any possible labour law dispute, then it would be beneficial to set up an objective, reliable and accessible working time tracking system and apply this consistently – especially in cases of remote working.

 

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