In accordance with Article 14 of the Labor Law No.4857 (“Law”), the remote working is defined as “the employment relationship established in writing based on the principle that the employee performs his / her job performance at home or outside the workplace with technological communication tools within the scope of the work organization developed by the employer” and it is indisputable that the remote working model, which has come into our lives with the developing technology today, has become increasingly widespread with the pandemic, especially in order to prevent the risk of transmission. With the transition to the remote working system within the scope of the measures taken due to the coronavirus pandemic that has affected our country and the whole world for a long time and many workplaces and employees have met with the remote working system, and with the adoption of the remote working in many different sectors, it has become necessary to make detailed legal arrangements on the subject. Within this scope, the Remote Working Regulation (“Regulation“), which includes detailed regulations on the remote working, entered into force after being published in the Official Gazette numbered 31419 and dated March 10, 2021. In this article, the procedures and rules set forth by the Regulation regarding the remote working will be explained in general terms in order to shed light on the practice.
What are the Procedures and Principles Regulated in Accordance with the Regulation?
- Form and Content of the Contract
First of all, it should be noted that in order to be able to work remotely, a written employment agreement between the employer and the employee is required. The employment relationship can be established directly with an employment agreement on the remote working, or the employment agreement of the employee who is working at the workplace can be converted into an employment agreement on remote working in case of mutual covenant of both the employee and the employer.
The employment agreement on remote working shall include “the definition of the job, the method of conducting the work, the duration and place of the work, the matters regarding the payment of wages and wage, the work tools and the equipments provided by the employer and the obligations regarding their protection, the employer’s communication with the employee and the provisions regarding general and special working conditions“.
The employee may also request to work remotely and notify to the employer in writing of this request. The employee’s request will be evaluated by the employer in accordance with the procedure specified in the workplace and while evaluating the request, the suitability to work remotely due to the qualifications of the work and employee and other criteria determined by the employer are used. It is essential that the evaluation result of the request is notified to the employee within 30 (thirty) days by the method which the request has been made. At the same time, the employee who switches to the remote working will be able to request to work at the workplace again in writing. The employer will consider the request as a priority.
It should also be noted that the impact of the coronavirus pandemic on business life is also seen with this regulation and within the scope of the Regulation “In the event that the remote working shall be applied in the whole or part of the workplace due to compelling reasons specified in the legislation, the request or approval of the employee is not required for transition to remote working.” provision has been regulated. Although the concept of “compelling reason” or “compelling cause ” is mentioned in many parts of the Law, it is a concept that is not clearly defined and in our opinion, pandemic can be accepted as a compelling reason. In this case, as a rule, the request or approval of the employee shall not be required in switching to the principle of remote working due to pandemic or compelling reasons specified in the legislation.
Even though a permanent work or the remote working in the workplace seems to be severely divided into two parts in the letter of the regulation and it is foreseen to make an employment agreement for the remote working, in our opinion, the working models of an employee who work partially remotely and partially working in the workplace can nowadays work together in such a mixed work model. We believe that the practice is able to be progressed through the additional protocol prepared. On the other hand, it is accepted in practice and doctrine that the remote working is not a type of fixed-term employment agreement. It is considered that only the working conditions are clarified with a contract in writing.
- Arrangement of The Work Environment
The arrangements regarding the location where the remote working will be performed shall be completed before the work starts and it is stipulated in the Regulation that the method of covering the costs arising from such arrangements will be determined jointly by the employee and the employer.
At this point, it would be useful to refer to articles 413 and 414 of the Turkish Code of Obligations (“TCO”) numbered 6098. In accordance with Article 413 of the TCO, if there is not an agreement or local custom, the employer is obliged to provide the necessary tools and materials for the work to the employee. In addition, if the employee agrees with the employer and specifies employee’s own vehicle or equipment to perform the work, unless there is an agreement or local custom to the contrary, the employer is obliged to pay the employee an appropriate compensation.
Also, In accordance with Article 414 of the TCO, the employer is obliged to pay all expenses required for the performance of the work and the expenses that are necessary for the living of the employee if the employee is employed outside the workplace. It is able to stipulate that the expenses agreed to be covered by the employee in person will be paid to the employee on a daily, weekly or monthly basis in a written employment agreement or collective bargaining agreement. However, this payment cannot be less than the amount to cover the compulsory expenses. All agreements regarding the full or partial payment of the compulsory expenses by the employee shall be deemed void.
Accordingly to this, although it is stated in the Regulation that the method of covering the costs arising from the remote working will be determined by the employee and employer, pursuant to the explicit provision in Article 414 of the TCO, which has the nature of general provision, the employer is obliged to pay the compulsory expenses personally regarding the remote working such as electricity, water, natural gas, internet usage etc. and related to this, the provisions to be concluded between the parties and stating that the employer is not responsible for these obligatory expenses are invalid.
- Supply and Usage of Working Tools and Equipment
With the aforementioned Regulation, it is stated that the materials and work tools required for the production of goods and services of the employee working remotely are provided by the employer unless otherwise agreed in the employment agreement, and the principles of usage, maintenance and repair conditions of these materials and work tools are clearly and understandably explained to the employee working remotely. However, as clearly stated, it may be decided by the parties that the necessary materials and work tools will be provided by the employee.
In case the work equipment are provided by the employer, the list of the work tools indicating the cost of these on the date of delivery to the employee must be submitted to the employee in writing by the employer. If the list of work equipment are arranged in addition to the employment agreement or within the employment agreement on the date of the agreement, there will be no requirement to prepare an another document in writing.
- Determination of Working Time and Overtime Work
The time interval and duration of the remote working must be specified in the employment agreement. Working hours may be changed by the parties, provided that the limitations stipulated in the legislation are adhered to. At this point, it is suggested that a provision stating that the employer has the right and authority to change this working periods and hours by notifying the personnel within the framework of the management right should be included in the agreement to be concluded between the parties.
Overtime work shall be performed upon the written request of the employer and the acceptance of the employee, and in accordance with the provisions of the legislation. Accordingly, in the event that the employee is worked with exceeding the daily working hours, the employer may reject the overtime wage request, even if the employee actually works overtime. However, it should be noted that the practice in this regard can be shaped by court decisions.
- Data Protection
As a result of the continuation of working and operation of work in the digital environment and by processing many personal data along with remote working, in accordance with the rights and obligations regulated within the scope of the Personal Data Protection Law No. 6698 (“KVK Law”), the issues that need to be considered for employers and employees are emerged and Personal Data Protection Board (“PDP Board”) made various recommendations and warnings on this matters.
In addition, data on the subject of the work which is collected in business processes and kept at the workplace, becomes accessible from outside with the transition to the remote working system. Providing access to even the data that has the nature of trade secrets from outside the workplace requires employers to pay attention to the issues related to data security.
Within this scope, necessary arrangements have been made in accordance with the Regulation. Accordingly to this, the employer has been obliged to inform the employee working remotely about the operating rules and related legislation regarding the protection and sharing of data regarding the workplace and the work done, and to take the necessary measures to protect this data. The employer shall determine the definition and scope of the data to be protected in the agreement. In order to protect the data, the employee is obliged to comply with the operating rules determined by the employer.
- Taking Measures Regarding Occupational Health And Safety
We would like to emphasize that the employer is obliged to inform the employee about occupational health and safety precautions, to provide the necessary training, to provide health surveillance and to take the necessary occupational safety measures regarding the equipment which is provided, taking into account the nature of the work performed by the employee who works remotely. It is crucial to state that there are deficiencies in the Regulation in terms of provisions related to this and we believe that the employer’s obligations regarding occupational health and safety is able be shaped by application and court decisions, especially as a result of the psychological and physiological effects of working remotely.
- Occupations that cannot performed remotely
It is not allowed to work remotely in jobs that involve working with hazardous chemicals and radioactive substances, processing these substances or working with the wastes of these substances, working processes that have a risk of exposure to biological factors.
Nowadays, with the developing technology, the concept of the remote working has entered into our lives and this is becoming more common. In order to prevent the risk of transmission due to the coronavirus pandemic, which affects our country and the whole world, remote working system has been introduced in many sectors and professional groups and for this reason, remote working which we have not encountered often before, has been an important place in our lives. Accordingly, new regulations have been made in our legislation and it is anticipated that remote working is able to turn into a permanent employment relationship model in business processes. This phenomenon may cause some structural changes and developments in the Regulation and the Law and the practice shall be shaped by court decisions.
CELIKBAS LAW OFFICE
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