Solution Proposal for a 9-Day Holiday: Compensation Work Application

As known, in Article 47 of the Labor Law No. 4857, it is regulated that employees working in workplaces covered by the Law, if they do not work on days recognized as national holidays and general holiday days by laws, will be paid the full wages of that day without any work in return; if they work without taking a holiday, they will be paid an additional day's wage for each day worked. Accordingly, employees will receive full payment for the days they choose not to work and instead take holidays on national and general holiday days.

In the Law No. 2429 on National Holidays and General Holidays, it is arranged as National Holiday and General Holiday Days, and you can examine the Official Holiday Days of 2024 from our article.

In working life, what is known as a 9-day holiday, especially being the longest holiday periods, arises in the work life once every few years by not working on the days before or after religious holidays, thus extending the holiday period to 9 days. In fact, as can be seen above, there is no provision for a 9-day holiday in the laws that govern working life. It is essentially an application related to public personnel. The discussion of a 9-day holiday has emerged through an administrative decision to consider all employees employed in public institutions and organizations as on leave on the days before and after holiday days.

As a result of private sector employers also complying with this decision, 9-day holiday periods have emerged in working life, regardless of being in the private or public sector. These periods create opportunities for workers to rest, and for employers, it is an opportunity to carry out general maintenance of the workplace, repair machines, etc., without incurring additional costs. In the public sector, the days other than national holidays and general holiday days can be included in administrative leave through collective labor agreements or presidential decisions, allowing employees to take holidays without any deduction from their salary. However, in private sector workplaces, this situation can be resolved in different ways.

In private sector workplaces covered by the Labor Law No. 4857, employees are granted annual leave according to Article 53 of Law No. 4857 for the periods other than the general holiday day within the 9-day period, or workplaces are given holidays under other leaves provided by the employer without any wage deduction and without deducting from the annual leave entitlement. However, if the employee does not have annual leave available, does not wish to use annual leave, or if the employer does not grant a holiday in a manner similar to tolerance, it can disrupt industrial peace.

Due to a calendrical coincidence, Ramadan Eid in 2024 will begin at 13:00 on Tuesday, April 9, and end on Friday. Here, to ensure that workers have a prolonged holiday for rest and that employers do not incur additional costs, we suggest making Monday and, if worked, Saturday also holidays by combining them with the weekend to give the workplace a 9-day holiday period. This approach would utilize the "Compensatory Work" provision regulated in Article 64 of the Labor Law No. 4857. The mentioned Law and the Regulation on Working Hours Related to the Labor Law, issued based on this article, detailed the procedures and principles related to compensatory work and its conditions. Accordingly, compensatory work can be defined as work performed by the employee to compensate for periods when the employee did not work due to mandatory reasons for work stoppage, holidays being declared before or after national holidays and general holidays, significant reductions in normal working hours or complete holidays at the workplace for similar reasons, or when leave is granted to the employee beyond the legal holidays provided by Law No. 4857, employment contracts, and collective labor agreements upon the employee's request.

As can be understood from the definition, compensatory work can be implemented in the following situations:

According to the regulations, employers can conduct compensatory work for the periods not worked within four months. This period can be doubled by the President. Compensatory works will not be considered as overtime or extended hours work. According to the regulations, employers can implement compensatory work exactly equivalent to the hours not worked. In other words, employees will be required to work the same amount of hours they were granted off. Compensatory work cannot be conducted on holiday days.

Employers who will implement compensatory work must clearly state which of the reasons listed in Article 64 of the Labor Law No. 4857 this work is based on, announce the start date of such work, and notify the relevant employees.

Compensatory work shall be carried out within 4 months* following the elimination of the compelling reason and the resumption of the normal working period of the workplace. Compensatory work cannot be more than 3 hours a day, provided that it does not exceed the maximum daily working time of 11 hours. Compensatory work cannot be done on holidays.

Although the procedures and principles regarding compensatory work have been detailed in the law and regulations, it would be appropriate to pay attention to some specifics in practice. According to the regulations, the employee's consent is not required for imposing compensatory work, but the wages for the periods not worked by the employee must be paid in full and on time. Initially, there must be a period of non-work, which should then be compensated for by working subsequently. In other words, the approach of first overworking the employee and then compensating these periods with leave, leading to settlement, is not envisaged; thus, such a practice will not be protected by the law and cannot be considered as compensatory work. In this case, the conditions for overtime work will apply.

Employers are required to notify employees about compensatory work. This includes detailing the reasons for the compensatory work (such as the workplace being closed before and after the 2024 Ramadan Feast), and the start date of the compensatory work (for example, starting from May 6, 2024, 2 hours per day for a total of 10 hours). No specific regulation exists regarding the format of this notification or how far in advance it needs to be made. However, to prevent the abuse of rights and uphold the principle of honesty, it's important that the notification is made a reasonable time in advance, considering the nature of the work and the duration of the compensatory work hours. This ensures that employees can plan their time accordingly. To avoid potential disputes, it's advisable to inform the employee in writing of the number of hours they have been on leave and the corresponding number of hours they will need to work starting from a specified date. Compensatory work must be conducted within 4 months from the date when the forced break ends, and the workplace resumes its normal operation. For instance, if a workplace is closed for 3 days due to a machine breakdown, the compensatory work must be carried out within 4 months following the repair of the breakdown and the end of the closure period.

Compensatory work should not be scheduled on holiday days. It is undisputed that national holidays, public holidays, and weekly rest days fall under the definition of holiday days. Thus, it's clear that compensatory work cannot be scheduled on these days. In workplaces where the workweek spans 5 days (Monday to Friday), whether compensatory work can be scheduled on Saturdays may be subject to dispute. The law and regulations do not define the scope of holiday days directly, nor do they stipulate working on these days. However, the law explicitly mentions "before or after national holidays and public holidays, the workplace being on holiday" as a condition for when compensatory work can be scheduled, indicating that the scope of holiday days on which compensatory work cannot be scheduled is different from UBGT (National Holidays and Public Holidays) days. Therefore, compensatory work should not be scheduled on Saturdays, which are considered holiday days in the work arrangement of the workplace. We assess that the fundamental principles of labor law also mandate this interpretation. Indeed, in a verdict given by the 9th Civil Chamber of the Court of Cassation on March 17, 2008, with case number E. 2007/27667 and decision number 2008/5292, it was ruled that an employee's refusal to work compensatory work on a Saturday, a day considered a holiday at the workplace in question, complies with the regulations governing compensatory work, and that the termination of employment by the employer for this reason was not based on a justified and valid reason.

If the regulations related to compensatory work are not complied with, depending on the specifics of the case, a valid reason for termination by the employee may arise, and payment for overtime may also be required for compensatory work that is not conducted properly. Furthermore, employers who act contrary to the provisions outlined in Article 64 of the Labor Law No. 4857 may face administrative fines according to Article 104 of the same Law, with a penalty of 2,267.00 TRY for each employee affected in the year 2024.

In conclusion, although not widely used in working life, the compensatory work system, which introduces flexibility to working hours, allows employees to take longer vacations and enables employers to close their workplaces at lower costs. We assess that implementing compensatory work in the workplace in accordance with the procedures and principles set out in the legislation will contribute to labor peace.

Should you have any queries or need further details, please contact us.

*With Article 43 of Law No. 7226 dated 25.03.2020, the phrase "two" in this paragraph of the Law was changed to "four", but the phrase "two" in the regulation has still not been changed.