At times of force majeure, emergency, technical failure, urgent matters or if there are exceptional or compelling circumstances; the employer may require all or part of the employees to work overtime.
In working life, when one works for over 45 hours a week, it is known as Overwork. Even if the 45-hours working period is not met, normally the 45-hours working period would be distributed equally throughout the working days of the week. However, with the agreement of the parties, the employee may agree to work 11 hours per working day.
Therefore the average weekly working hours of an employee should not exceed 45 hours in 2 months’ time; this practice is known as Equalisation. By applying the principle of Equalisation, even if the employee’s average weekly working hour exceeds the normal weekly working period of 45 hours so working 11 hours per day, those extra hours are not regarded as Overwork.
The wage for each hour exceeding the 45 hours is calculated by paying the employee 50% more than the normal working rate per hour.
Under the employment contract, the parties can agree on setting the weekly working hours to be less than 45 hours. In such cases, if work is done in excess of the average working hours specified in the contract, the hours which totals the working hours to 45 hours, are classified as Overtime Work.
When the employee works overtime, the wage paid for each extra hour is raised by 25% of the normal working rate per hour. And if the employee works more than 45 hours, the ‘overwork wage’ calculation would apply; that is 50% more than the normal working rate per hour would be paid to the employee for each of the extra hour worked.
It should be highlighted that senior executives are exempted from the overtime pay rule above and are not paid extra; unless if in their contract of employment there is an arrangement agreed for overtime pay.
Nevertheless, the overall overtime work hours should not exceed 270 hours per year. Even if the employee has given its consent to work for more than 270 hours, if contrary occurs, the employee cannot be forced to work in respective of its consent. In spite of this limitation, if the employee’s overall overtime work hour exceeds 270 hours, the overtime wage must be paid to the employee for those extra hours as well.
The employee has to give consent to work overtime. If the employee is in need of overwork, the consent of the employee can be obtained at the time of signing the employment contract or it can be obtained when the need arises and then it would be recorded in the employee’s personnel file.
Generally, the Regulations and Supreme Court decisions state that despite the consent present in the employee contract, a written consent should also be obtained from the employee at the beginning of each year. The Supreme Court believes that the consent in the employment contract is valid only for the first year. The employer who fails to have a written consent from the employee for overtime work, the employer would be punished by paying administrative fines. If the employee refuses to overwork or work overtime, he has to submit a written notice within 30 days from the date of consent to the employer stating his withdrawal.
The wages for normal working hours, overwork and overtime work is paid to the employee in accordance with Article 32 and 34 of the Labor Law 4857. These payments have to be explicitly set out on the payroll as well as on the pay-slip of the respective employee (per Article 37 of the Labor Law 4857).
The employee who overworks or works overtime can request for free time of 1 hour 30 minutes for every 1 hour of overwork or 1 hour 15 minutes for every 1 hour of overtime work, instead of being paid the surcharges. The employee can use the free time within 6 months, without any interruption with its working hours or wages. However, the employer cannot decide on behalf of the employee to offer free time instead of paying surcharge without the request of the employee.
There can be overwork wage arrangement terms inserted in the employment contract. In such cases, even if the employee does not overwork, he is still qualified for the stated wages in the contract. In order for the arrangement to be valid, there must be a provision in the contract clearly stating that the overwork surcharge will be included in the actual salary. The provision should also state that the overwork hours must not exceed 11 hours per day and 270 hours per year.
If a provision in the employment contract mentions that the overwork wage is included in the monthly salary or the minimum salary or any other type of salary, that provision would not be valid if the total amount is clearly not proportionate and reasonable to what the employee should actually gain in relation to the hours of overwork done.