What is Offsetting Overtime with Under Time?
The meaning of offsetting overtime with under time in labor law is that the average of the work done above and below weekly working hours within a certain time period is decided by the parties so that it does not exceed maximum working hours of 45 hours per week1 under Turkish Labor Law.
Why is it Applied, can Apply or should Apply?
The purpose of adjusting working hours is to enable the employer to use the workforce more flexibly within the limits of the law. As a rule, the employer has the authority to regulate working hours. The employer can organize the work hours in different ways according to the nature of the job within the boundaries of the Law, employment contract and collective labor contract, by announcing the start and end hours and resting hours of the workplace (Turkish Labor Law. Article. 67, Directive. Article. 8). The Employer could adjust and offset overtime with under time during an "equalization period". Equalization period can be applied to only one worker as it could be applied to all or part of the workplace (Soyer, 2003:185).
How is it Applied?
According to Turkish Labor Law (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 must not exceed eleven hours. In this case, within a time period of two months, the average weekly working time of the employee shall not exceed normal (maximum) weekly working time..." (Article 63/2).
How Long can it be Applied?
First of all, according to the LAW, the equalization period that the parties can take as basis cannot exceed two months. Meaning that in order to offset overtime work employer could adjust working hours at most within 2 months of period. However, this can be increased up to four months by collective labor agreements (Article 63/2)
The specified settlement period is a fixed period and it is not possible to extend this worker for reasons such as the employee's illness or the right to annual leave (Soyer, 2003:187).
How can the Hours be Set?
According to LAW, "Overtime work may be performed for purposes such as the country's interest, the nature of the operation or the need to increase output. Overtime work is work which, under conditions specified in this Act, exceeds forty-five hours a week. In cases where the principle of balancing is applied in accordance with Article 63, work which exceeds a total of forty-five hours a week shall not be deemed overtime work, provided the average working time of the employee does not exceed the normal weekly working time"(Article 41/1). Thus, in cases where the offsetting principle is applied, it has been decided that over 45 hours of work will not be considered overtime. At the end of the equalization period, the overtime exceeding the average weekly working time is considered as overtime for over forty-five hours(Article 41/3).
The worker should be employed for a maximum of 11 hours a day. In case the weekly working time is distributed differently to the working days of the week, if a worker is working 6 days a week, that worker can work up to 66 hours a week or if a worker is working 5 days a week, that worker can work up to 55 hours a week. Thus, a 'concentrated work week' can be implemented at workplaces for various reasons.
The Turkish Labor Law No. 4857 has determined the maximum limit of the equalization period and has not provided a period in terms of the lower limit. As a consequence, the parties are also anticipating an equilibrium period under two months (Soyer, 2003: 187).
For example, in order to complete a project, an employer may stipulate two weeks of equalization period which provides; 66 hours of work in first week and 24 hours in the second. In this case, the project will be completed without violation of the weekly working time because the average weekly working hours will be within the legal boundaries. There are also academic opinions that the law does not provide any rules that prevents it (Caniklioğlu, 2005:8).
Is the Consent of the Worker Necessary?
Another limitation of the Turkish Labor Law in terms of the application of offsetting working hours is that the employer must obtain the consent of the worker in order to implement the equalization work. It has not been determined how the agreement to be made between the employer and the employee (written or oral) will be applied to the application of the offsetting working hours in the Labor Law. However, in terms of the means of proof, a written agreement2 is more beneficial for both parties. At this point there is no information on whether the consent of the workers should be taken before each and every two months of offsetting period.
Workers to whom "Equalization and Concentrated Period" cannot be Applied;
- Workers who have not completed 18 years of age,
- Workers who are documented by the physician report that their health is not available, especially the workplace physician,
- Pregnant, newly born and nursing mother workers,
- Part-time workers
Jobs Where an Equalization and Concentrated Period cannot be Applied;
- Within the scope of Regulation on "Jobs That Must Work Seven Hours or Less a Day for Health Rules"
- Within the scope of Regulation on "Working Times That Cannot Be Divided into Weekly Working Days", employer has no obligation to take a previous consent from the employees because offsetting overtime with under time is the result of the nature of the work, the authority on this subject is the on the employer. In addition, the two-month equalization period can be extended up to six-month period in these jobs.
- Regulation on "Working Times Which Cannot Be Divided into Weekly Working Days" provides that excluding working hours which start in daytime hours and hang over to the night hours, the offsetting working hours cannot be applicable.
- Offsetting working hours is not possible at underground and underwater works such as Mining, quarrying, cable laying, sewerage, tunnel construction.
Termination of the Labor Contract during the Equalization Period
A question mark arises when employment contract for a definite period ends or employment contract is terminated during the "Equalization Period". The problem is how to calculate the worker's salary. Two possibilities come to mind in this case. According to the first possibility, the worker's previous week's work is paid on overwork basis. That is, the worker will be entitled to overtime pay for his work over a period of 45 hours per week.
For example an employee working 66 hours for 4 weeks and works total 45 hours in next 2 weeks, in case of employment contract is terminated at the end of this 2 weeks, employee shall be entitled (66-45)= 21 hours of overtime for each week. And shall be paid total (21x4)=84 hours overtime for 4 weeks of overwork.
The other possibility is that the overtime work shall be calculated limited to the overtime during the equalization period and the work exceeding the weekly average working period is evaluated as working overtime. Same above mentioned employee, working 66 hours for 4 weeks and works total 45 hours in next 2 weeks, in case of employment contract is terminated at the end of this 2 weeks, has worked 264 hours in 4 weeks and 45 hours in the last 2 weeks. This employee has total (264+45)= 309 hours of work which equals (309/6)=51,5 hours per week. Therefore the employee has (51,5 - 45)= 6,5 hours of overtime for each week. The employer is obligated to pay (6,6 x 6)= 39 hours of overtime in total.
As we discussed how the offsetting working hours could be applied in case of termination of the employment contract, we consider that second option would be more appropriate to determine the amount of overtime than the first option, although there is no certainty before the Courts as to which type of application is to be made.
Footnotes
1. ÇALIŞMA VE SOSYAL GÜVENLİK BAKANLIĞI; http://www.calismadunyasi.gov.tr/pdf/sayi2/05.pdf
2. ÇALIŞMA VE SOSYAL GÜVENLİK BAKANLIĞI; http://www.calismadunyasi.gov.tr/pdf/sayi2/05.pdf
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
