On-Call Work Under Turkish Labour Law: Compliance for Employers

Introduction

Recent changes in labour market needs have led to the emergence of different employment models. On-call work is one of these atypical employment models.[1] This employment model allows employers to call on employees only when needed, therefore eliminating the obligation to maintain a permanent workforce. Under Turkish law, on-call work is recognized as a specific type of part-time employment. However, in practice, various issues related to this type of employment are not regulated in Turkish Labour Law (“Law”) or the relevant secondary legislation. This article examines the legal basis for on-call work under Law, the establishment of employment contracts, employees’ rights to leave and compensation, and and practical issues arising from the implementation of this employment model.

Definition of On-Call Work

On- call work is defined in article 14 of the Law. According to this definition, on-call work is a type of part-time employment whereby the employee performs the work agreed in the employment contract only when their services are needed by the employer. Under this employment model, the employees are essentially required to work if circumstances require it. In addition to this provision, the rules applicable to part-time employment contracts also apply to on-call work contracts.

Establishment of On- Call Work Contracts

The establishment of on-call work contracts is subject to written form requirement under article 14 of the Law. Since the Law does not specify a particular written form, it is sufficient for the parties to conclude the contract in a simple written form.[2] 

Notification of the Call

The fundamental element of on-call work is the employer’s call to the employee. Unless such call is made, the employee’s obligation to perform work does not arise. The parties may agree in the contract on how far in advance the call must be made before the performance of the work, or they may choose not to make any arrangement in this regard. Although no limit is specified in the Law regarding the period of notification agreed upon by the parties, if the parties did not agree on a specific time limit, the period of notice must be given at least 4 days prior to the date of work in accordance with the article 14 of the Law. However, if the employee is set to work for several consecutive days, it is possible to make a single call covering all of those days.[3] As there is no provision in the Law regarding the method of notification, the parties may agree on any procedure, and notice may be given by any means.

Working Hours

According to the article 14 of the Law, if the parties have not determined the minimum working hours for a specified period (weekly/monthly/annually), the weekly working hours presumed to be 20 hours. Article 6 of the Regulation on Working Hours under the Labour Law specifies how part-time work is determined. Under this article, the upper limit for a job to be considered  part-time work is two-thirds of the duration of comparable full-time work performed under a full-time employment contract at the same workplace. Since on-call work is also a form of part-time work, it must remainwithin these limits; otherwise, the arrangementmay not be considered as on-call work.

In one ruling, the Court of Cassation examined the work hours of an employee and , according to the evidence in the case file, the weekly working hours of the employee were significantly higher than an average on call employee. The Court therefore ruled that t employee’s work constituted intermittent work rather than on-call work. [4]

Furthermore, the Law stipulates that, unless otherwise agreed by the parties, daily working time must be at least 4 hours.

Holiday and Annual Leave Entitlements of On-Call Employees

According to article 13 of Regulation on Annual Paid Leave, on-call employees benefit from annual paid leave entitlement in the same way as full-time employees, and the employer cannot discriminate between these two groups in terms of leave periods and remuneration.

Regarding national holidays and festivals, the Law does not contain any specific provisions concerning on-call work. Therefore, article 47 of the Law stipulates that employees shall be paid their wages even if they do not work on such days. However, if they do work on such days, they shall be entitled to receive, in addition to their normal wages, the payment corresponding to one extra day's wages for the work performed on those days.

Other Rights in On-Call Work

As the employer is undern an obligation to treat part-time employees equally in accordance with article 13 of the Law, the wages and divisible benefits of part-time employees shall be determined in proportion to the time worked, based on the rights granted to comparable full-time employees. For example, if an employer pays bonuses to its full-time employees, it must also pay bonuses to its on-call employees in proportion to the hours they work. In addition, on-call employees are also entitled to severance pay. Regarding overtime pay, article 8 of the Directive on Overtime and Extended Working Hours under the Labour Law provides that part-time employees cannot be required to work overtime; therefore, on-call employees are likewise not entitled to overtime pay.

Conclusion

Although on-call work is a practical model that can respond to current labour force needs, in practice there are various issues concerning employees’ rights. Although the basic principles are specified in the Law, the absence of provisions on certain matters leads to different interpretations in practice. This situation creates uncertainty for both employees and employers and makes the implementation of this type of work difficult. Employers must therefore exercise extreme caution regarding working hours and related matters when opting for on-call work arrangements, as failure to comply with the applicable regulations or the emergence of any disputes may result in such workers being treated as full-time employees.

With thanks to Yağmur Melek Sarıhasanoğlu for her contributions.

References

(Only in Turkish) 22nd Civil Chamber of the Court of Cassation Decision numbered 2017/ 30299 E., 2020/7202 K.

Baysal, Ulaş . "(Only in Turkish) Türk ve Alman Hukukunda Çağrı Üzerine Çalışma." TÜHİS İş Hukuku ve İktisat Dergisi 2012.

Öztürk , U. and E. Yıldırım, . "(Only in Turkish) Çağrı Üzerine Çalışma ve Sıfır Saat Sözleşmeler." Çalışma Ekonomisi ve Endüstri İlişkileri Seçme Yazılar-VI 2022: 58-78.