Many situations encountered in working life and causing work to stop has brought up flexible working models. Incomplete work due to work stopping due to mandatory reasons, holidaying before or after national and general holidays, or working under the normal working hours for a similar reason, or when the workplace is completely vacationed or if the worker has taken a day-off, The employer who wishes to compensate the underemployment shall be entitled to employ the worker out of the normal working hours as specified in the law and regulation within two months. The maximal amount and how to make the makeup work within the legal limits has examined in our article below.
According to Article 64 of the Labor Law No. 4857, “In cases where time worked has been considerably lower than the normal working time or where operations are stopped entirely for reasons of suspending work due to force majeure or on the days before or after the national and public holidays or where the employee is granted time off upon his request, the employer may call upon compensatory work within two months in order to compensate for the time lost due to unworked periods” In the Regulation on Working Hours Related to the Labor Law published in the Official Gazette No. 25425 dated 06.04.2014 compensatory work defined as “ Incomplete work due to work stopping due to mandatory reasons, holidaying before or after national and general holidays, or working under the normal working hours for a similar reason, or when the workplace is completely vacationed or if the worker has taken a day-off at the request of the worker, it has foreseen by Labor Law No. 4857, labor contracts and collective labor agreements. In cases where permission has given outside of the legal permits, the work to be made to the worker for the compensation of these periods when the worker is not working.
As explained in the above-mentioned laws and regulations; working overtime due to various reasons listed in the law,for non-working periods is called compensatory work.
In the relevant legislation, three main reasons have considered for making up the compensation work. The first is that the work stops due to mandatory reasons. Although the concept of force majeure is not clearly defined, it should have evaluated in a broad sense in every concrete situation. However, it should not be understood only as a compelling (force majeure). In case of earthquakes, floods, floods, landslides, and fires, etc. In case of natural disasters such as natural disasters or other compulsory reasons arising from the workplace, for example, the inability to operate the production machines in the workplace due to maintenance and repair or long term power outages in the region where the workplace has located the employer has the right to make compensatory work in return for the periods not working.
The second condition that makes possible compensatory work in the law is the closure of the workplace before and after the holidays and general holidays. In the event that the end of the holidays and general holidays in our country is close to the week holiday, the employers can declare a longer holiday in the workplace by combining the working days with the week holiday. In this case, Article 64, paragraph 1 of the Labor Law No. 4857, entitles the employer to request that these periods of non-employment be completed later.
The third reason that allows the employer to make compensation work is the permission of the employer on the request of the worker. The permission stated in the law is accepted as the administrative permission given to the worker. In addition, there are some exceptions about the permission of the employer on the request of the worker and these permits are defined as the permits other than legal permits envisaged by labor law, labor contract and collective bargaining agreements. Examples of legal permits which envisaged by labor law, labor contract and collective bargaining agreements. are weekend, maternity leave, paternity leave, permits for marriage, death leave, permits for new job search. Apart from these situations, the employer can accept the request of the employee for administrative leave and make compensatory work for these periods when the worker is not working based on the right granted by law.
Article 7, Paragraph 2 of the Working Time Regulation on Labor Law, states how the employer shall make the compensation work. In accordance with the relevant regulation, the employer who will carry out compensation work is obliged to clearly state which of the conditions listed in Article 64 of the Labor Law and to inform the relevant workers about the date of employment.
As can be seen from the text of the law, the compensation work can be done within two months and the compensation work done is not considered as overwork or overtime. However, it is of great importance for how long the compensation works will be done here. According to Article 7, Paragraph 3 of the Working Time Regulation on Labor Law compensatory work must not exceed eleven hours, the maximum daily working time, and shall not be carried out more than three hours per day.The employer who wishes to make compensation work must divide it into the days worked in the workplace. In other words, it is not possible to make compensation work on Saturdays and Sundays if you work 5 days a week in the workplace. In addition, if the employer makes compensation work, in return for this compensation work, the workers who work above the daily working time cannot therefore claim overtime from the employer.