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This article addresses night work, a type of work that is regulated by specific rules in the Labour Law and is legally limited. Within the framework of Article 69 of Labour Law No. 4857, the duration and conditions of night work and the rights of employees are outlined in broad terms, and, in line with the legal framework of night work and the case law of the Court of Cassation (Yargıtay), the conditions under which night work turns into overtime are examined. In addition, examples are given of how overtime receivables are calculated in weeks in which night work is performed and of which situations arise.
Night work is regulated in Article 69 of Labour Law No. 4857, which defines it as follows: “In working life, ‘night’ means the period that begins at 20:00 at the latest and continues until 06:00 at the earliest, and in any event lasts at most eleven hours.” Even though there is no distinction in our law in practice between working in the night period and working in the day period, according to the wording of the law, where work is performed within the said time bands, the provision headed ‘night work’ is applied. (Baki Oğuz Mülayim, İş Hukukunda Gece Çalışması (Adalet 2016) 146; Mollamahmutoğlu, Astarlı and Baysal, İş Hukuku (n 8) 348.)
Certain limitations have been introduced on night work in order for the said provision to be applied. Indeed: “The night work of employees may not exceed seven and a half hours. However, in tourism, private security, health services and work carried out within the scope of petroleum research, exploration and drilling activities under the Turkish Petroleum Law No. 6491 of 30/5/2013, night work in excess of seven and a half hours may be required, provided that the employee’s written consent is obtained.” (Art. 69/3) “Employees cannot be required to work overtime during night work.” (Art. 41/4) Furthermore, the employee’s state of health must be suitable for night work. Another limitation is that the need to employ workers continuously by day and by night may relate to work carried out by successive shifts of workers without interruption, owing to the characteristics specified in the Labour Law (Art. 76/2), but it may also arise where the employer decides on such a practice without there being work of this nature. “In work that is operated by day and by night and in which relay shifts of employees are used, the shifts are arranged such that employees who work at night for one working week are made to work during the day in the second working week following it. A two-week rotation principle may also be applied to day and night shifts. (Art. 69/7) An employee whose shift is to be changed cannot be made to work in the other shift without being given at least eleven hours of uninterrupted rest. (Art. 69/last)”
As stated, the basic provision laid down in our legislation concerning the duration of night work is found in the third paragraph of Article 69 of Labour Law No. 4857, according to which the duration of night work must in principle not exceed seven and a half hours. Court of Cassation case law states that where night work exceeds seven and a half hours, the said violation constitutes a situation giving rise to the employee’s right to claim overtime pay. Indeed, following the closure of the 22nd Civil Chamber of the Court of Cassation and the assignment of its President and Members to the 9th Civil Chamber, the points in dispute in the decisions of both Chambers were discussed, and it was decided to unify practice as follows:
Method of calculating overtime receivables in cases not exceeding 45 hours per week (such as exceeding 11 hours per day or 7.5 hours at night):
Work in which the weekly working time does not exceed 45 hours but which exceeds 11 hours per day, and work exceeding the 7.5-hour limit in night work and in heavy and dangerous jobs, is regarded as overtime under Court of Cassation practice. The consideration for the said prohibited work must be paid at a 50% premium (at 50% more than the hourly wage). In other words, a calculation cannot be made on the basis of half of the hourly wage by claiming merely that the 45-hour weekly working time has not been exceeded and that the non-premium portion of the overtime has been paid within the fixed monthly wage.
In accordance with the judgment of the Court of Cassation 9th Civil Chamber, Docket No. 2015/32990, Decision No. 2019/7188, dated 29.03.2019;
“…Overtime in night work is of the nature of prohibited work. For this reason, in a week in which night work is performed, even if the working time in the weeks before and after that week does not exceed 45 hours, for each day on which night work is performed, the portion of the remaining night work, after deducting the rest break, that exceeds 7.5 hours must be calculated as overtime pay.”
As can also be understood from the Court of Cassation decisions, there is no divergence of opinion that work exceeding 7.5 hours at night must be calculated as overtime. In making this calculation, although the employee’s weekly working time does not exceed 45 hours, work falling between 20:00 and 06:00 is night work, and in work performed at night, even if the weekly working time does not exceed 45 hours, work exceeding 7.5 hours per day must be regarded as overtime.
For instance, if it is accepted that between 16/01/2025 and 22/01/2025 21 hours of day work and 31.5 hours of night work were performed, and the ordinary calculation is made, the day and night hours are added together. Although the total weekly work of 52.5 hours shows that overtime was performed, because night work exists, this situation necessitates a separate calculation. Indeed, when the ordinary calculation is made, the day and night hours are added together and it can be said that 7.5 hours of overtime were worked. However, when night work is calculated, it is calculated separately, which gives the result that the employee performed night work of 10.5 hours on each of 3 days. In this case, accepting that the employee worked 3 hours of overtime per day, it should be concluded that he or she performed a total of 9 hours of night overtime.
Or, as another example, if we assume that an employee works 4 days a week, 10.5 hours a day, has no work exceeding 45 hours per week and works 42 hours per week, then if the employee also has work performed between 20:00 and 06:00, such work is night work, and in work performed at night, even if the weekly working time does not exceed 45 hours, work exceeding 7.5 hours per day must be regarded as overtime. Therefore, by way of example, an employee who worked between 20:00 and 08:00 on 5 October 2024 performed night work of 12-1.5=10.5 hours per day and became entitled to overtime pay for 10.5-7.5=3 hours.
In conclusion, since night work is an activity carried out at hours when individuals need sleep in line with their biological needs, it is a type of work subject to special regulation. In this context, it is envisaged that work performed at night and work performed during the day should not be assessed equally. Within this framework, in our article we first examined the characteristics of the night work process and, within the framework of the existing legislation and the decisions of the high courts, sought to demonstrate the calculation with examples.
Attorney at Law Ecenur GÖNÜL
