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December 21, 2023

Working Conditions Of Employees And Employer’s Obligations In Shift Works

1. In General

Shift work is defined in the second paragraph of Article 76 of the Labour Law No. 4857 (“Law”) as “work which, due to its continuous nature, is carried out by employing one shift of employees after another without interruption or by rotating shifts of employees”. The fact that such work is carried out by different employees without interruption necessitated a departure from the working conditions applicable to ordinary work, and accordingly, the relevant provisions have been regulated by the Regulation on Special Procedures and Principles Regarding Shift Work (“Shift Work Regulation”).

The aspects of shift work that differ from normal work in terms of employees and the obligations of the employer in this regard are presented below under relevant headings.

2. Working Hours in Shift Work

Subparagraph (a) of the first paragraph of Article 4 of the Shift Work Regulation reads as follows;

“Work shifts;

a) In the works carried out by employees in successive shifts without interruption due to their continuous nature, the number of shifts shall be arranged in such way that at least three shifts of employees are employed within a 24-hour period. However, in the works carried out in tourism, private security and health services and the works carried out by the sub-employer operating in the workplaces where these works are carried out, the arrangement can be made so that there are two shifts in 24 hours.”

As can be understood from the article, in works which are of a nature requiring uninterrupted continuity of work and in which the employees work by consecutive shifts, a minimum of three different shifts shall be arranged for each 24-hour period.

In line with the third paragraph of Article 69 of the Law, which limits the duration of night shift, the first paragraph of Article 7 of the Shift Work Regulation stipulates that

“It is forbidden for employees to work more than 7,5 hours in night shifts, except for the cases in the Articles 42 and 43 and the regulation specified in the Article 70 of the Law No. 4857. However, in tourism, private security and health services, night work over seven and a half hours may be performed provided that the written consent of the employee is obtained.”

Therefore, it should be taken into consideration that the maximum duration of the night shift can be 7,5 hours in determining the duration of the shift in the works that require continuous and shift work. Hence, the shift that will coincide with the night period specified as 20.00-06.00 in Article 69 of the Law can be determined as 7,5 hours at most. The remaining two shifts shall be determined so as not to exceed the daily working limit of 11 hours as set out in the Regulation on Working Hours under the Labour Law (“Working Hours Regulation”). It should also be noted that even if the daily working time is set below 7.5 hours, the wage of the employee cannot be reduced in any way pursuant to Article 6 of the Shift Work Regulation.

However, in terms of the exceptional situation regarding the necessity of night shift over 7,5 hours due to the fact that the work requires uninterrupted and shift work, if the work is carried out;

  1. In facilities where a tourism management certificate or tourism investment certificate by the Ministry of Culture and Tourism or a tourism management certificate by the municipality has been issued,
  2. In private security companies authorised by the Ministry of Interior to operate or in any workplace as a private security officer,
  3. By real persons providing health care services and in workplaces and social service organisations of public and private legal entities,
  4. By sub-employers operating at the place where the above-mentioned works are carried out

the night shift limit shall not be applied and the shift corresponding to the night period may be set more than 7.5 hours, provided that the employee has given written consent..

The working hours to be applied in respect of works that are not performed 24 hours without interruption but are worked in shifts shall be determined in accordance with the principles set out in the Working Hours Regulation, also in compliance with the provision set out in the Shift Work Regulation that foresees the night shift to not exceed 7,5 hours.

4. Special Restrictions and Prohibitions in terms of the Employee

In addition to the above-mentioned restrictions, other restrictions and prohibitions stipulated in the legislation, established in terms of the attributes of the employee should also be taken into consideration in determining the shifts.

In terms of employees aged under 18: Pursuant to Article 5 of the Shift Work Regulation, it is prohibited to employ anyone aged under 18 on night shifts.

In terms of female employees: Pursuant to the Regulation on the Working Conditions of Employment of Female Employees on Night Shifts (“Regulation on Females Working on Night Shifts”), if reaching the workplace by public transport constitutes difficulty for female employees working in night shifts, the employer has the obligation to provide this transportation by suitable means.

In addition, before female employees start working on night shifts, they must obtain a medical report from the workplace doctor stating that there is no impediment in this regard, and also undergo regular medical examinations throughout the duration of their employment.

Furthermore, if the spouse of the female employee also works with shifts in the same or a different workplace, upon the request of the female employee, the night shift shall be arranged so that it does not coincide with the night shift of her spouse. If the spouses work in the same workplace, they may request to work in the same night shift.

In terms of pregnant and breastfeeding female employees: Pursuant to the Regulation on Females Working on Night Shifts, pregnant employees cannot be employed on nights shifts for one year starting from the date the pregnancy is determined with doctor’s report; and breastfeeding employees for one year starting from the date of birth of the child. However, this period is extended by six months if it is determined by the workplace doctor that it is necessary for the health of the breastfeeding employee or the child.

5. Change of Shifts and Rest Periods of the Employee

The first paragraph of Article 8 of the Shift Work Regulation reads as follows;

“In the works carried out day and night and by working in shifts, the shifts shall be arranged in such a way that the employees who work during the night for a maximum of one working week shall work during the day in the following second working week and the shifts shall replace each other.”

As can be understood from the provision, an employee may work on night shift for a maximum of one working week. In this respect, taking into account the employee’s health, the rule has been established so that the employee cannot be employed on the night shift again without being employed on the day shift in the week following the work week spent on the night shift.

In addition, the second paragraph of the same article stipulates that the shifts of the employees shall not be changed unless it is compulsory, but it is determined that the employee whose health problems arose from working at night shift are certified shall be given work in the daytime to the extent possible.

The minimum rest period to be applied during the above-explained shift change of the employees working in shifts is determined as 11 (eleven) hours in Article 9 of the Shift Work Regulation. Interim rest periods to be applied during the shift are determined according to the duration of the shift, as regulated in Article 68 of the Law. Week holidays must be 24 (twenty four) hours and uninterrupted, on at least one day of the week. 

5. Other Obligations of the Shift Work Employer

In addition to the above-mentioned regulations, according to Article 3 of the Shift Work Regulation, employers who engage employees in shift work are required to declare;

  1. Number of shifts,
  2. The starting and finishing hours of each shift,
  3. The names and surnames of the employees working in shifts,
  4. Interim rest for employees working in shifts,
  5. Week holidays for employees working in shifts,
  6. Changes related to the above-mentioned matters

in the workplace and in a way that can be seen and read by employees easily. Furthermore, pursuant to Article 12 of the Shift Work Regulation, lists containing the names and surnames of employees working in each shift must be kept at the workplace to be submitted upon request by the Ministry of Labour and Social Security.

Finally, it should be noted that, in the event that the employer fails to comply with the provisions set out in the Shift Work Regulation, in addition to the receivables that may arise in favour of the employee, there will be a risk of facing an administrative fine of TRY.-9.302,00 (nine thousand three hundred and two Turkish Liras), which is foreseen in accordance with Article 104 of the Law and determined for the year 2023 with the revaluation rate.

6. In Conclusion

Works that require uninterrupted shift work are subject to distinct working conditions due to their nature. When determining the shifts in these jobs, especially the provisions regarding night work should be taken into consideration, the special needs and attributes of the employee should be regarded and the minimum rest periods to be used when changing shifts must be implemented. In this respect, it is important to comply with the legal provisions regarding shift work, both in terms of occupational health and safety and the employer’s fulfilment of legal and administrative obligations.

This article has been prepared for the purpose of providing you with information and advice within the framework of the current legislation, and you can always contact us for further information.

With Regards,

Kılınç Law & Consulting

Authors

Ebru Özkan

Ebru Özkan

Senior Lawyer

Alptekin Dayı

Alptekin Dayı

Associate