With the Covid-19 outbreak being declared as a Pandemic by the World Health Organization, the working order is also affected by this process.
In terms of activities, working remotely (working from home) concept has started to be actualized in some sectors and activities have been reduced in some sectors and some activities have been partially or completely stopped in some sectors due to the pandemic. The concept of compensatory work is also affected by this process and the duration of compensatory work has been increased from 2 months to 4 months with the change dated 25/3/2020.
The most important problem for the sectors where the activities are stopped is how to eliminate losing business and missing opportunities. It is clear that the whole world is affected by the pandemic and the question of what actions should be taken in terms of the continuation of commercial and economic life is become the main agenda worldwide.
If we take a look at the general regulations for working time; the general working period is regulated under the Article 63 of the Labour Law in our legislation. In this direction, according to the mentioned provision, “In general terms, working time is maximum forty-five hours per week. Unless the contrary is decided, working time shall be divided equally to the working days of the workplace.”
The restrictions imposed on working hours in of our labour legislation are to protect employees personally. It is possible to continue working in the workplace for 7/24 in shifts as long as the working hours of the employees are respected without such restriction in workplaces.
In other words, theoretically, except for curfew or such exceptional cases, operating 7/24 at the workplace is possible. The necessary occupational health and safety measures within the scope of the employer’s obligation to protect the employee should also be taken in accordance with this working order.
What if the operation in the workplace is stopped and working remotely (working from home) is not possible, what alternative ways that the employer may apply to?
In this case, what comes to mind is the concept of compensatory work. The compensatory work is regulated under the Article 64 of the Labour Law. According to this;
”In cases that the operation is stopped due to force majeure, the workplace is temporarily closed before or after the national and public holidays or that working for considerably less hours than the normal working time in the workplace or the workplace is permanently closed or the employee is granted time off upon his request, the employer may apply compensatory work within four months in order to compensate for the time lost due to periods that not worked for. (Additional sentence:25/3/2020-7226/43 art.) The President is authorized to increase this period up as redouble. Such work shall not be considered overtime work or work for extra hours.
Compensatory work shall not exceed three hours per day and must not exceed the maximum daily working time in any case. Compensatory work cannot be performed on holidays.”
In this direction; The following conditions must be met for the compensatory work to be applied:
- Operations at the workplace must be stopped due to force majeure or the workplace must be temporarily closed on the days before or after the national and public holidays which are stated in law or the employer must be given time off upon his request.
- Such cases are not limited with the cases listed in the law and since the scope is expanded with the expression of “or similar reasons”, the case mentioned must have a qualification that may constitute a force majeure.
- Operations at the workplace must either be completely stopped or the workplace must be significantly closed.
- The employer is obliged to clearly state such work is based on which of the reasons listed under the Article 64 of the Labour Law and inform the employees about starting date of such working. (Article 7 of Regulation on Working Time about Labour Law).
- The compensatory work may be applied within four months. The President is authorized to increase this period as redouble. The aforementioned regulation took place after the Covid-19 pandemic and the period before the change was limited to 2 months. Within the scope of the measures taken to reduce the effects of Covid-19, compensatory work time has also been increased.
The results of the compensatory work:
- Compensatory work cannot be performed for more than 3 hours a day. Total daily work cannot exceed 11 hours.
- Compensatory work shall not be considered as a part of overtime work or working for extra hours.
- As a result of the compensatory work, the normal wage of shall be paid to the employee for his work. In other words, since the work performed is not overtime working, no overtime working fee shall be paid.
- Compensatory work cannot be performed on holidays.
It is important to comply with the procedures and principles explained above during compensatory work.
In this regard, the employer can apply the compensatory work in the workplace within 4 months since the effects of the Covid-19 pandemic which has the nature of force majeure which stops the activities in the workplace decrease/disappear.
 Prof. Dr. Sarper Süzek, Individual Labor Law, 14th Edition, page 817 ff.
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