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May 7, 2024

An Analysis Of The Suppositional Working Hours In Light Of The Provisions Of Article 66 Of The Labor Law No. 4857 And The Precedents

INTRODUCTION

The definition of the concept of working hours, which is a fundamental element of the employee’s obligation to perform work within the context of the employer-employee relationship, is not explicitly provided in the Labor Law No. 4857 (“Labor Law”). However, the Regulation on Working Hours Regarding the Labor Law (“Regulation”) defines working hours in Article 3 as “the time spent by the employee at the workplace.“ Based on this definition in the Regulation, the concept of working hours is understood to refer to the time spent by the employee at the workplace. However, there are instances where periods during which the employee is not physically present at the workplace or not actively working are still considered part of the employee’s working hours. In addition to this definition in the Regulation, in the continuation of the same article, Article 66 of the Labor Law is referred to and it is stated that the periods stated in these articles will be considered as working hours. 

While the actual time that the employee spends working in the workplace is recognized as working hours, the term “suppositional working hours” is can to describe periods that the employee does not work but are accepted as worked within the scope of certain legal regulations. In this article it will be discussed in which cases these periods are considered within the scope of the daily working time of the employee within the scope of the presumed working time, despite the fact that the employee does not actually fulfill the obligation to perform the work in the light of the provisions of the Labor Law and Regulation.

A. SUPPOSITIONAL WORKING HOURS SPECIFIED IN THE LABOR LAW PROVISIONS

As noted in the introduction, Article 66 of the Labor Law specifies the circumstances that will be considered as working hours, and Article 3 of the Regulation makes reference to this provision. These circumstances will be analysed individually below:

1) Descent and Ascent Time for the Work Performed Underground and Underwater

The first subparagraph of Article 66 of the Labor Law contains regulations specifically for the employees employed in mines, quarries, and underwater operations. The fact that the areas designated as workplaces in such jobs being underground or underwater necessitate long and hazardous journeys for employees to reach their places of work. Therefore, the legislator has stipulated that the time required for employees to descend to and ascend from their workplace in these hazardous conditions is considered an integral part of the work and must be included in the working hours.

It is evident that the legislator has made an interpretation in favor of the employees working underground and underwater. Apart from the commencement or termination of work, it is known that due to the nature of the work or the employer’s directions, there may be repeated descents, entries, and exits underground or underwater, raising the question of whether each descent underground or underwater should be considered as working hours The prevailing opinion in legal doctrine is that all descents, ascents, and transitions undertaken by employees in these jobs during the day should be included in the working hours.

In accordance with legal regulations and provisions outlined in employment contracts, the travel time for employees to and from underground and underwater works is generally considered part of the working hours. These periods encompass the time between the employee’s start and end times of work and are deemed as working hours due to the employee being at the employer’s disposal and ready for duty.

2) Time Spent By The Employee On The Road When Sent By The Employer To A Location Other Than The Workplace To Work

According to the relevant provision of the Labor Law, it is stated that if the employer sends the employee to a location other than the workplace to work, the time spent by the employee on the way will be considered within the scope of working hours. Although not explicitly stated in the provision, it is presumed that this provision applies to employees sent by their supervisors for repairs to customers, those working in sales representative positions who fulfill their obligations to perform work outside the workplace, and similar situations.

In this regard, we believe that it would be more appropriate to interpret the relevant provision not as the time spent by the employee on the road to get to and from the workplace, but as the situations in which the employee is sent by the employer’s instruction to fulfill the obligation to perform the work during working hours and within the daily working period. Including the time spent by the employee commuting to the workplace as part of the working hours would not only be unfair to the employer but also inconsistent with the definition of working hours in the Regulation, which states that “working hours are the time spent by the employee at the workplace.

In addition to our explanations, it is noted in Article 66, subparagraph 2 of the Labor Law that the time spent in vehicles if the employer transports employees to and from the workplace for social assistance purposes will not be included in the calculation of working hours. Therefore, we believe that this also applies to employees who commute to the workplace using their own ways of transportation, where the time spent commuting should not be included in the working hours.

3) Periods During Which The Employee Cannot Fulfill His/Her Obligation To Perform Work Despite Being Present At The Workplace

In certain sectors and positions, employees are often require employer’s instructions in order to fulfill their work duties. In this context, even though the employee is present and ready at the workplace, the fundamental obligation of the employer-employee relationship, which is the duty to work, is not fulfilled because of the lack of employer’s instruction. In such cases, the time spent by the employee waiting while ready for work is considered part of the working hours. For example, in cases where workers are waiting for the work to start or actively waiting to work, such as a waiter waiting for a customer or an apprentice being sent somewhere for repairs by his employer, the time spent in a ready state is included in the working time.

However, it is interpreted that the provision also applies not only when the employee waits for the employer’s “do” instruction to work but also when the work is cannot be done due to the employer’s “do not” instruction even though the employee being ready. For instance, this can be demonstrated when the employee is unable to work due to inspections or repairs at the workplace despite being ready. In this context, even if the employee does not fulfill the his/her duty to work, the hours spent at the workplace waiting as if working under the employer’s authority are considered as part of the working hours.

Regarding this issue, there are debates in the doctrine as to whether the time spent by the employees who work on the call of the employer within the scope of the on-call shift should be included in the working time or not. The prevailing opinion in legal doctrine and established Supreme Court precedents agree that the determining factor in calculating working hours is, whether the employee waits at the workplace during the on-call duty or whether the employee comes to the workplace upon being called.

The decision of the 9th Civil Chamber of the Court of Cassation dated January 18, 2022, numbered 2021/12188 E. and 2022/529 K., states that: “The employee can freely spend time at home and in their residential area during on-call duty. The fact that the employee may need to enter the workplace when necessary does not require all the time spent during on-call duty to be considered as working hours. The time spent by the employee going to the workplace during the shift will be considered as part of the working hours. However, if there is no need for going  to the workplace, a reasonable time should be considered as part of the working hours for the sake of fairness. Although the employee has free time that can be used at will, the employee must be ready to go to the workplace at any time. Taking all these factors into account, if it is not proven that more work was actually performed during the on-call duty, 1/8 of the time spent during on-call duty should be considered as part of the working hours.” This decision stipulates that the time spent during on-call duty without being called to work, where the employee is not under the employer’s authority and does not actually work, will not be considered in the calculation of working hours.

4) Working Hours Of The Employee Outside The Workplace Without Performing The Main Job Due To Employer’s Instruction

The provisions of the aforementioned article stipulate that in the event that the employee is working and occupied by his employer, for work other than the main work that he/she is obliged to perform at the place where he/she is sent by his employer, the time spent by the employee for the said work shall be considered within the scope of working time. The difference of this paragraph from the provisions of Article 66/1-b of the Labor Law is that the employee is instructed by the employer to do a different job other than his/her main job. In both cases, the employee is sent to a different place other than the workplace with the instruction of the employer and the difference between the provisions is whether the instruction given to the employee is within the scope of the main work. 

Although there is no clarity in the provisions of the article, we are of the opinion that within the scope of the principle of labor law’s protection of the employee, the article in question is to prevent the employer from abusing the power of the employer if the employee is sent outside the workplace for the employer’s personal business or the needs of the workplace. For example, in cases where the employee is sent out of the workplace for tax or invoice payments, etc., the time spent by the employee will be considered as if the employee has fulfilled his/her obligation to perform work at the workplace and will be considered within the scope of working time.

5) Breastfeeding Leave For Female Employees

Article 66 and Article 74 of the Labor Law stipulates that the period of breastfeeding leave taken by female employees will be included in the calculation of working hours. Both relevant articles of the Labor Law clearly state that breastfeeding breaks will be considered as part of the working hours.

According to Article 74/7 of the Labor Law, a female employee with a child under one year of age is entitled to a daily breastfeeding leave of one and a half hours. In this case, having a child under one year of age and making a request to use breastfeeding leave is sufficient to benefit from breastfeeding leave and it is not at the employer’s discretion for the female employee breastfeeding leave. Although the employer’s consent is not required for female employees to use breastfeeding leave, unfortunately, in practice, there are employers who do not allow female employees entitled to breastfeeding leave to take them, under the misconception that these female employees “work 1.5 hours less” than other employees every day. 

It is established by the decisions of the Court of Cassation that the employer, who does not allow the use of breastfeeding leave despite the clear provisions of the Labor Law on milk leave, is obliged to pay the wages of the employee who is forced to work during the breastfeeding leave, calculated within the scope of the overtime with the Decision of the 22nd Civil Chamber of the Court of Cassation dated 13.06.2016 and numbered 2015/12878 Main and 2016/17527 by stating “the issue of granting milk leave is not a situation that is at the initiative of the employer, and in accordance with paragraph 74/7 of the Labor Law No. 4857, it is stipulated that the hours and the number of hours to be used by the employee shall be determined by the employee. Pursuant to paragraph 74/7 of the Labor Law No. 4857, it is stipulated that the hours between which this period will be used and how many times it will be divided will be determined by the employee, and in the event that the employee is required to use milk leave but this leave is not made available, it is accepted that the unused period should be determined and a calculation should be made over the 50% increased wage”

6) Periods Of Time Spent During The Transportation Of Employee’s To And From Their Workplaces Located At A Distance From Residental Areas In A Collective And Organized Manner

The final clause of Article 66 of the Labor Law stipulates that the time spent on road shall be considered as working hours if the employees are sent by the employer to a place to work far away from the residental areas in a collective and organized manner by stating “in any type of work, such as the construction, maintenance, repair, or modification of railways, highways, and bridges, where employees need to be collectively and regularly transported to and from workplaces that are far from their residential areas, the time spent during such transportation shall be considered as working hours.” The important issues in this provision are the nature of the work, the distance of the workplace from the settlement and the collective and regular transportation of workers by the employer in accordance with a specific program. 

Regarding the nature of the work, the law uses examples like railway, highway, and bridge construction, and the predominant view in legal doctrine emphasizes that these types of work inherently involve workplaces located far from residential areas, with the workplaces changing continuously and requiring employees to collectively fulfill their work duties at different locations. These types of jobs, often referred to as progressive jobs, consist of various components, and the changing work locations are necessary for completing the main job.

The concept of distance mentioned in the article may vary in each specific case, but generally refers to situations where it would be physically and morally challenging for employees to independently commute from their residential areas to the workplace. The other element required for the inclusion of the time spent on the road during the transportation of the workers to and from the workplace in the working hours is that the transportation in question is carried out by the employer in a collective and planned manner. The collective and scheduled transportation of employees by the employer can be described as transportation provided within a specific program. For example, if a specific group of employees is picked up from the same location at the same time every morning and transported to the workplace, and then returned to the same location by the employer’s facilities at the end of the shift, this transportation can be considered regular.

Another important point to note within the scope of this provisions is that the transportation in question is not a shuttle service allocated by the employer to the workplace for the purpose of social assistance, but a service provided by the employer regularly and collectively for the fulfillment of the obligation to perform work due to the nature of the work. 

As mentioned earlier in this article, the time spent on the road during transportation provided by the employer for employees, regardless of the nature of the work and solely for social benefit purposes, is not considered in the calculation of working hours if the employee commutes independently. This principle is consistent with established precedents of the Court of Cassation, by stating “the time spent in vehicles during transportation purely for social benefit purposes, not arising from the nature of the work, is not counted as working hours.Therefore, the inclusion of travel time spent in company transportation as working hours, without considering the provisions of the final clause of Article 66 of Law No. 4857, is deemed incorrect.”

B. CONCLUSION

The concept of “suppositional working hours” is an important principle established in favor of employees within the Labor Law. These hours represent periods during which the employee is not actually working but is deemed to have worked for the purposes of calculating working hours, as specified in the Labor Law. In addition to legal suppositional working hours, there are contractual suppositional working hours determined by agreements between employers and employees. Consequently, the periods during which the employee is ready for work but does not actively work are characterized as “suppositional working hours” rather than “actual working hours,” and these hours are included in the calculation of the employee’s legal working time.

When determining suppositional working hours, the legislator has made regulations by taking into consideration factors such as the gender of the employee in some provisions and the nature of the work in others, demonstrating that the regulations were made under the fundamental principle embraced in labor law, which is the protection of employees.

In our opinion, these provisions not only prevent the abuse of power by employers within the context of the employer-employee relationship but also ensure that if the legally prescribed maximum daily or weekly actual working hours are exceeded, the employee is entitled to overtime pay alongside the suppositional working hours being treated similarly to actual working hours.

Authors

Ebru Özkan

Ebru Özkan

Senior Lawyer

Aksu Efesoy

Aksu Efesoy

Lawyer