Employment Relationship and Agreement on Overtime Pay
An employment relationship is established through an employment contract between the worker and the employer. While the worker performs their duties under the directives of the employer, the employer compensates the worker for their labor. If the worker is made to work overtime contrary to the provisions of the contract or the law, the worker is entitled to overtime pay. At this juncture, the worker and the employer can agree that the overtime pay will be included in the regular salary. However, in accordance with the 8th paragraph of Article 41 of the Labor Law, the total overtime cannot exceed 270 hours per year. Thus, even if it is agreed that the overtime pay is included in the regular salary, the worker can claim overtime pay for any work exceeding 270 hours annually.
Supreme Court Decisions and Valid Contract Provisions
In its ruling (9th Civil Chamber, Case No. 2020/3915, Decision No. 2021/614, dated 13.01.2021), the Supreme Court stated, “The clauses in employment contracts stipulating that overtime pay is included in the monthly salary should be valued within limits. Our chamber recognizes the validity of these provisions limited to 270 hours, and if work exceeding 270 hours per year is proven, compensation must be paid. In such cases, it must be checked whether the worker’s salary, excluding the agreed overtime pay, falls below the minimum wage.” This indicates that the agreement on including overtime pay in the monthly salary is valid up to 270 hours annually. For the contractual provisions about including overtime pay in the basic salary to be valid, in addition to not exceeding the annual maximum overtime of 270 hours, the agreement must be in writing, the wage must be set above the minimum wage, and there must not be a significant disproportion between the employer's obligation to pay and the worker's performance.
Calculation and Compensation of Overtime Work
In its decision (9th Civil Chamber, Case No. 2009/14955, Decision No. 2011/18340, dated 16.06.2011), the Supreme Court held that when the wage of a worker working 48 hours a week is paid in foreign currency, it is accepted that the agreed wage is set high. The overtime pay between the legal weekly working hours of 45 and 48 hours is considered paid according to the contract, and if any, the pay for work exceeding 48 hours should be calculated. Here, the wage must be sufficiently high to cover the overtime pay for at least 270 hours annually. The Supreme Court has stated in various rulings that for the calculation of overtime, the annual 270 hours should be divided by 12 months, resulting in a calculation of 22.5 hours per month. In its decision (9th Civil Chamber, Case No. 2016/30199, Decision No. 2020/14569, dated 03.11.2020), the Supreme Court stated, “To validate the rule that overtime is included in the basic salary, the agreed wage must be above the minimum wage. Since it is accepted that 270 hours of annual overtime are included in the basic salary according to this rule, the wage must be set at a level that can cover the increased part of the 22.5 hours of monthly overtime.” In other decisions, the Supreme Court has expressed that the 270 hours should be divided by 52 weeks, resulting in a calculation of 5.2 hours per week (9th Civil Chamber, Case No. 2021/11508, Decision No. 2021/15706, dated 22.11.2021).
Underground Workers and Senior Managers
Additionally, it should be noted that according to Article 41/9 of the Labor Law, workers employed in underground mining cannot be subjected to regular overtime work. The 8th paragraph, which regulates the 270-hour limit, is not included among the provisions referred to in Articles 42/2 and 43/2 of the Labor Law. Therefore, the 270-hour legal limit does not apply to workers employed in underground mining. Consequently, agreements between such workers and their employers that stipulate up to 270 hours of overtime is included in the salary are invalid as they contravene the law. Lastly, concerning agreements on overtime pay for senior managers, the Supreme Court stated (9th Civil Chamber, Case No. 2016/2364, Decision No. 2019/11702, dated 21.05.2019), “Given that the employment contract signed between the claimant and the defendant stipulates that overtime is included in the salary, it cannot be said that the claimant is a senior manager who determines his own working hours.” This indicates that agreements on including overtime pay in the salary are contradictory for senior managers, as they generally determine their working hours and thus do not qualify for overtime pay.
Determining the Status of Senior Managers
The status of senior managers, whether they determine their working hours, the presence of supervisors, the adequacy of their salary, and other relevant factors should be examined in each case. If, after investigation, it is determined that the individual is indeed a senior manager, the previously mentioned conditions apply. Otherwise, agreements on including up to 270 hours of overtime in the salary should be considered valid.
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