Author: Sevgi Unsal Ozden
Introduction
The concept of remote working was included in the scope of Turkish Labor Law No. 4857 ("Labor Law") through the amendment[1] of Article 14 of the Labor Law in 2016. However, no secondary legislation that regulates the details of remote working was published following the amendment.
Transition to remote working in many different sectors and occupational groups, due to the effect of the Covid-19 epidemic, has accelerated the detailed legal regulations with regard to this subject matter. Within this context, the Remote Working Regulation[2] (“Regulation”) was entered into force on the date of 10.03.2021. In this Newsletter, the provisions of this Regulation, which determine the procedures and principles of remote working relationships, and the obligations of the employer and employee are discussed.
Transition to Remote Working
The remote working relationship may be established directly through signing of an agreement, or the existing employment agreement may be converted into a remote working agreement upon the consensus of the parties.
The employee may only request in writing to work remotely. The employer evaluates the request (i) in line with the procedure specified in the workplace, and (ii) considering the suitability for working remotely due to the nature of the job, as well as the employee and other determined criteria, and notifies the response in writing within 30 days. If agreed, a remote working relationship is established by signing an agreement in accordance with the provisions of the Regulation. During the evaluation of this request by the employer, it is required to act in conformity with the obligation of equal treatment, as well.
As per Article 6 of the Regulation, if the remote working is to be applied to the whole, or part, of the workplace for compelling reasons, the employee’s request or approval does not have to be sought for the transition to remote working.
Procedures and Principles of Remote Working
Form and Context of Agreement
Employment agreements with regard to remote working are made in writing. The agreement includes the description of the work, the method of conducting the work, the duration and the place of work, matters regarding salary and payment, working tools to be provided by the employer, equipment and the obligations regarding protection of the equipment, communication between the employee and the employer, and provisions regarding general and special working conditions.
Arrangement of Working Environment
If necessary, arrangements regarding the location of remote working is completed prior to commencement of the work. The method of coverage of the costs arising from such arrangements is determined jointly by the employee and the employer. Therefore, it is important to clearly include these regulations in the agreement to be signed with employees who work remotely.
Supply and Usage of Equipment and Work Tools; Coverage of the Production Costs
Pursuant to Article 7 of the Regulation, the employer must provide the equipment and work tools required for the production of goods and services, unless otherwise agreed in the remote working agreement. The principles of usage, maintenance and repair conditions of the equipment and work tools should be clearly and cognizably notified to the employee. If the work tools are provided by the employer, a list setting forth the costs of these tools on the date of delivery is conveyed to the employee. However, it is also possible to include such equipment and work tools in the remote working agreement, or to arrange such list as an annex to the agreement. Arrangement of this list will benefit the employer in terms of proof in cases, such as the loss or damage of a computer or similar work tools delivered to the employee.
On the other hand, parties may also agree under the agreement that the equipment and work tools will be provided by the employee.
Moreover, as per Article 8 of the Regulation, matters with regard to determination and payment of compulsory expenses directly related to the production of goods or services arising from the performance of the work must be specified in the employment agreement. However, it would be appropriate to regard the existing application of the workplace and Article 414 of the Turkish Code of Obligations No. 6098 (“TCO”) during the evaluation process concerning the determination and payment of the compulsory expenses. Pursuant to Article 414 of the TCO, the employer is obliged to pay all expenses required for the performance of the job, as well as the expenses necessary for living if the worker is employed outside of the workplace. Any agreement stipulating that necessary expenses will be paid by the employee will be invalid. We are of the opinion that expenses, which are considered to be compulsory for remote working and how these should be covered, will be clarified in future judicial decisions.
Determination of Working Period
The working hours may be changed by the parties, provided that the limitations stipulated in the legislation are adhered to. The time interval and duration of remote working are specified in the employment agreement, accordingly. The provisions of the Labor Law shall be applied with regard to overtime work. It would be beneficial to clearly determine the working and rest periods in the agreement in order to avoid any problems in possible disputes related to overtime work.
Communication and Data Protection
Communication method and the time interval for the same is to be determined by and between the employee and the employer. Within this context, a suitable communication method may be designated for the parties, and the rules and instructions regarding this communication may also be included within the scope of the agreement.
Additionally, the employer is obliged to inform the remote worker of the company rules and the relevant legislation on data protection and transfer as to the workplace and the performed job, and should take the necessary measures in order to protect such data. This obligation also corresponds with the rules and principles stipulated in the current data protection legislation. Naturally, the employee is expected to act in accordance with the workplace rules determined by the employer in order to protect the data.
Occupational Health and Safety
The employer is obliged to inform the employee regarding occupational health and safety measures, to provide the necessary training, to provide health surveillance, and to take the necessary occupational safety measures with regard to the provided equipment, by taking into consideration the nature of the job performed by the employee. Whether these measures are taken or not will be considered during the determination of responsibilities of the parties in a potential work accident. As well, the provision of this Regulation draws attention to the importance of taking occupational health and safety measures even in remote working.
Conclusion
It is indisputable that the provisions of this new Regulation will be a guide for all employers who apply remote working during the Covid-19 outbreak, or who are working on the planning of remote or hybrid working systems in the upcoming period. However, the Regulation leaves many issues to the agreement of the parties. Therefore, in any case, the basic principles and mandatory provisions of the Labor Law should be observed during the preparation of agreements related to remote or hybrid working model and regulations, which is in conformity with equity, and should be included.
[1]Law No. 6715 Amending the Labor Law and the Turkish Employment Agency Law entered into force after being published in the Official Gazette dated 20.05.2016 and numbered 29717,https://www.resmigazete.gov.tr/eskiler/2016/05/20160520-24.htm, (Access Date: 24.04.2021).
[2]Remote Working Regulation entered into force after being published in the Official Gazette dated 10.03.2021 and numbered 31419, https://www.resmigazete.gov.tr/eskiler/2021/03/20210310-2.htm, (Access Date: 24.04.2021).
