Overtime Pay and Balancing Calculation

Overtime Pay (Overtime)

Labor Law No. 4857 Article 41: Overtime work may be carried out for reasons such as the general interests of the country, the nature of the work, or the increase in production. Overtime work refers to work that exceeds 45 hours per week under the conditions stipulated in the Law.

Work exceeding 45 hours per week is paid to employees as overtime pay. However, in cases where the employee does not come to work at their request or fails to complete the working hours determined by a contract of 9 hours per day, the work not exceeding 11 hours on the remaining days is balanced with the missing working hours.

In its decision dated 19.09.2013, numbered 2012/26026 E. 2013/19201 K., the 22nd Civil Chamber of the Court of Cassation stated:

“According to the case file, it is understood that the plaintiff worked as a movement officer in the main employer’s workplace engaged in passenger transportation by sea, with subcontractors, working 24 hours in one week and resting the next day, and in a rotating system of 08:00-18:00 on the following day. Considering the nature of the work and the characteristics of the workplace, it is accepted that employees working 24-hour shifts may have at most 14 hours of work per day when the time needed for sleep and other necessary needs is taken into account. According to the Labor Law No. 4857, it is accepted that there is an implicit balancing for work up to 11 hours per day, and overtime work exceeding 11 hours per day should be calculated accordingly.”

Balancing Calculation:

Employees can work an average of 45 hours per week over a 2-month (8-week) period without exceeding 11 hours per day according to the balancing method. This period can be extended to 4 months by collective agreements. The balancing principle can be agreed upon in writing in the employment contract, and as understood from the example of the Court of Cassation decision, implicit balancing is also accepted without explicit written consent.

For example, in a workplace where the average working hours are 45 hours over a 2-month period, if the employee works 5 days a week, they can work a maximum of 55 hours per week (11x5). If the employee worked 55 hours every week for 4 weeks, they would work 35 hours for the remaining 4 weeks, and the average weekly working hours would not exceed 45 hours. Therefore, there would be no entitlement to overtime pay.

When performing the balancing calculation, the daily working limit of 11 hours stipulated by law must not be exceeded. Otherwise, even if the weekly average of 45 hours is not exceeded, the employee must be paid overtime compensation.

In Conclusion:

Considering all the examined legislation, precedent-setting Court of Cassation decisions, and the established doctrine and practices in labor law regarding the calculation of overtime pay and working hours, the missing working hours can be completed at the employee's request, provided that it does not exceed 11 hours per day. Therefore, although the principle in the law for determining overtime pay is based on exceeding 45 hours per week, overtime pay must be calculated after the implicit balancing account, which should not exceed 11 hours per day.