COVID-19 disease, which emerged in Wuhan city of Republic of China in December 2019 and spread to the world rapidly and declared as a pandemic by the World Health Organization (WHO) on 11.03.2020, is seen in many people in many countries worldwide and a number of harsh measures have been taken to prevent the spread of the disease in our country.
Both due to the measures taken and as a natural result of people not wanting to be infected with the disease, a number of changes have had to be made in working life. Some of the reasons underlying these changes were for the protection of social health and some for economic reasons.
In this article, we will talk about the effects of the new type Coronavirus outbreak, which has been declared a pandemic and is closely related to public health, on the working life without going into detail.
B. EFFECTS OF THE OUTBREAK ON WORKING LIFE
Since the working arrangements of employees in public institutions are within the authority and control of the administration, the articles that occur in the working lives of private sector employees and employers rather than public employees will be examined in this article. To briefly refer to public employees; pregnant women, those who use legal milk leave, disabled employees, those 60 years of age or older, except those in executive positions disadvantaged groups identified by the Ministry of Health (those with immune problems, cancer patients, chronic respiratory patients, obesity and diabetes, cardiovascular patients, transplant recipients, chronic patients) are to be placed on Twelve Days of administrative leave as of March 16, 2020. In the private sector, the working life has changed considerably with both health reasons and economic reasons.
The working model called home office or working from home is a working model that is frequently applied. It is a working system that the employee determines where he/she works freely by leaving the definition of the classic workplace. Especially with the development of technology, the telework, which is frequently used in both the informatics and sales sectors, is preferred by many workplaces that can adapt itself to technological developments. While there is no regulation in the Turkish Labor Law Legislation, it entered our lives in 2016 with the amendments made in Article 14 of the Law No. 4857. It is necessary to pay attention to the following points in the telework.
- The employee must observe working hours in the remote operating system. Currently, the infrastructure system is already available to work remotely, but there are no problems for companies with appropriate programs that can determine whether or not the employee complies with the working hours, but it is entirely at the initiative of the Employee Whether or not the working hours are respected in the workplaces that have moved to working remotely due to the outbreak of Covid-19. What is important here is the assessment of whether the given task is done by the employee. Because the insistence on not performing the given task, according to Article 25/II of the Labour Law, may give the employer the right to terminate immediately for the justified reason.
- In case of telework, the employer can not make any reductions in the employee's wages. The fee paid before working remotely must be paid in the same way.
- If it is stated in the employment contract that one meal of the employee will be covered by the employer during working hours, the obligation to pay the meal fee in case of telework will continue.
- Whether or not the road fare will be paid in the telework may be a feature. This means that in practice, if the employee uses his/her annual paid leave, or when he/she does not come to work for rest or other reasons, the road fee is cut, in this case, he/she does not need to be paid the road fee. However, if the road fee in the telework continues to be paid even when the employee's payroll is fixed and is not visited at the workplace, such as holidays, paid leave or rest, it is no longer counted as wage and in this case it is not possible to cut the road fee in the telework.
- The employer is obliged to inform the employee about the occupational health and safety measures, to provide the necessary training, to provide health surveillance and to take the necessary occupational safety measures regarding the equipment he provides, taking into account the nature of the work done by the employee he/she works in accordance with the equal working condition among the employees. In other words, it is not possible to get rid of work safety responsibility by working remotely. It is no doubt that the accident in the event of an accident when the employee performs the performance of work during working hours will be counted as a work accident. However, if the accident does not have anything to do with the performance of the work, it will be revealed by judicial decisions whether or not the work accident will be considered. Our personal opinion is that in the event of an accident outside the workplace, while working remotely, which has nothing to do with the performance of the job (such as pouring boiling water over him in his own kitchen while putting tea on him), the event can not be considered an accident at work, while preparing a report, we believe that the incident that occurred (in the case of falling from the seat) can be considered a work accident.
2. Short Work Allowance
In case of general economic crisis, regional crisis, sectoral crisis, or if the working life is interrupted by compelling reasons, the employer may apply to I?kur and make use of short work allowance. In particular, applications made due to epidemic diseases due to coercive reasons, in contrast to the economic crisis applications without the need for the decision of I?KUR Board of Directors as a result of the compliance audit of labor inspectors to benefit from Short Work Allowance is made possible. Especially on 18.03.2020, chaired by the president after a meeting with ministers and the participation of many NGOs in light of the circulars of the Ministry of Internal Affairs described the measures as a result of closed 16.03.2020 dated, cinema, theater, performing arts center, concert hall, engagement/wedding hall, music halls, restaurant/cafe, Casino, pub, tavern, coffee shop, kiraathane, cafeteria, dirt, garden, hookah lounge, hookah cafes, internet hall, internet cafe, all kinds of all kinds of gaming halls, indoor children's play areas (shopping mall and restaurant, including the contents), tea garden, association taverns, amusement park, for swimming pool, Turkish bath, sauna, spa, massage room, SPA and sports centers or for other work places that may be closed as part of the fight against Covid-19, the application for short work allowance has been opened. The points to be considered in the application of Short Work Allowance are as follows;
- Short Work Allowance application can be applied for a maximum of 3 months but this period can be extended up to 6 months by the decision of the presidency.
- The employee who may be injured from short work allowance must be entitled to unemployment allowance in terms of working time and number of days of payment of unemployment insurance premium on the date of the short work start. In other words, those who have paid unemployment insurance premium for at least 600 days in the last three years from those who are subject to the service contract for the last 120 days before the start of short work can be injured from short work allowance.
- The list of employees who may benefit from short work should be carefully prepared by the employer and notified to i?KUR. In case of improper or overpayment with a false notification, the payments made are collected from the employer with legal interest. If the employee is the defective party in the unwarranted payment, this time the unwarranted payment is charged to the employee with legal interest.
- If the employee works in another job while the practice of short work continues, if he/she is armed, if he/she is obliged to perform his forced labor duties arising from other laws, if he/she is entitled to old age pension or if he/she starts to receive temporary incapacity benefit, the short work allowance is deducted.
3. Compensatory Work
The compensatory work is regulated by Article 64 of the Labor Law No. 4857. Specific time after the end of these situations, if the work stops due to compulsory reasons, the workplace is holidayed before or after the national holidays and general holidays, or if the work is noticeably lower than the normal working hours at the workplace for similar reasons or to be completely vacationed or permitted by the employee at the request is to make up for the employee by overworking. The points to be considered in the compensation work are as follows;
- Work in the workplace must be performed significantly below the legal working time for mandatory reasons or work must be stopped completely.
- After the elimination of the compulsory conditions, the employees are required to complete the missing working periods for a period of 4 months. This period is limited to 2 months, but has been extended to 4 months as a result of the measures announced after the meeting held on 18.03.2020 under the chairmanship of the president, with the participation of ministers and many NGOs
- The fee to be paid for the excess work done during this period will not be paid within the scope of the compensatory work.
- 11 hours, which is the upper limit of the daily working time, should not be exceeded while compensating.
- Compensation can not be done during National Holidays, public holidays, religious holidays and weekends.
- If the employer has deducted the wages of the missing working hours from the employee, he/she can not make compensatory work.
- If the remaining time is not completed despite the compensatory work carried out within 4 months, the employees should be paid wages in return for the excessive working hours in the overtime work done after 4 months.
4. Using Annual Paid Leave
As a rule, annual leave can be made available to the employee at his request. However, the employer may allow the employees to take compulsory annual paid leave in certain periods when it is necessary. It Is Currently The 10th Anniversary Of The Annual Paid Leave Ordinance. April - October by the employer allows the use of collective leave of the employees. However, in mandatory cases, the employer may oblige the employees to use their annual paid leave. In the aftermath of the Covid-19 outbreak, employees may be forced to take annual paid leave in order to keep community health ahead by the employer.
5. Free Leave Implementation
There is no general regulation in the Turkish labour law legislation, with a few exceptions for the application of unpaid leave. However, in practice, it is possible to apply for unpaid leave by mutual agreement with the employees, especially in cases where termination of the employment contract is used as a last resort. Unpaid leave essentially means the temporary suspension of the employment contract. In case of closure of workplaces due to coercive reasons, the application of unpaid leave may be made by agreements to be made with employees ' unions in the workplaces where the application of collective bargaining agreement is taking place.
As part of the fight against the Covid-19 outbreak, employment contracts have been suspended, especially in the enterprises whose activities have been terminated by the Ministry of Interior Circular dated 16.03.2020. In this case, two situations may arise for employers.
- By not taking any action, the employer may pay half of the wages of the employees for a period of one week from the date the activity stops, and in the ongoing period the employees will be deemed to be on unpaid leave by themselves due to the suspension of the employment contract. However, the employee may terminate the employment contract immediately after one week in accordance with the 24/III clause of the Labour Law No. 4857, or the employer may terminate the employment contract in accordance with Article 25/III of the same law. In both cases, employees must be paid severance pay.
- In the workplaces where the employer and the employee or collective bargaining agreement is in place, the Employees ' Union can enter into an agreement and apply for unpaid leave. In this case, we believe that the employer will not have to pay half of the employee's wage in the first one week period.
When the employment contract is suspended, it can be decided by the employer to pay the employees under the name of advance. Advance payments can be deducted from the employee's wage within a 5-year period.
In the context of fighting the Covid-19 outbreak, drastic changes and measures had to be taken in business life, as in all areas, in order to protect the health of the community and to compensate for the economic downsides. Since the working life in the private sector is based on the agreement of employers and employees, it is the most appropriate method to reach a conclusion with mutual negotiations during this struggle. In cases where it is not possible to work from home, in cases where it is not possible to work in the workplace, we recommend that employees first take annual paid leave, then take unpaid leave or apply for compensatory work. Another suggestion is for employers to apply to ??KURS as a result of the opening of short work allowance in case the activity stops due to compulsory reasons. Although we do not favor the termination of the employment contract with the payment of the employee's severance pay in the event of a cessation of activity for longer than one week with the application of unpaid leave, it is among the methods to be applied legally.
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.