SENIOR MANAGER ARE NOT ENTITLED TO OVERTIME WAGE (NOVEMBER 2019)

Overwork, as it is defined under Labor Law,are the works which exceed 45 hours per week within the framework and conditions determined by the Labor Law numbered 4857. According to Art. 63 of Labor Law; The working time of the employee is determined as forty-five hours per a week. Unless otherwise agreed, this 45-hour working period can be applied by dividing the working days of the week equally. However, separate working hours for each day can also be agreed between the parties. Regardless of the form of work, the employee's work which exceeds 45 hours in a week is named as overwork.

The persons acting on behalf of the employer and taking part in the management of the work, the workplace and the enterprise are defined as the “vice principal” under the Article 2/4 of the Labor Law. It is stated in Article 18that vice principal and assistants who manage the whole business, and vice principal who have the authority to refer and manage the entire workplace and who have the authority to employ and ­­­­dismiss the employees, will not benefit from the employment security provisions.

There is no special provision regarding the proof of overwork either in the former Labor Law No. 1475 or in the Labor Law No. 4857 which is still in force. Therefore, the proof of overwork is subject to under the general provisions. The Article 6 of the Turkish Civil Code numbered 4721 isas follows: "Unless otherwise foreseen by law, each party is obliged to prove the existence of the facts which are basis of his claims." Hence, the employer who claims overworkmust prove his claim as a principle. However, such proof can be done with any kind of evidence.

The decision of Supreme Court General Assembly of Civil Chambers dated 16.04.2019, numbered 2015/3698 (file number), 2019/469 (decision number); is remarkable regarding overwork. Supreme Court has decided that the employer’s representativeshall not be entitled to overtime work. If the employee who is the senior manager in the workplace is paid a high wage in the same way as he/she performs her duty and there is no other senior manager who gives duties and instructions in the same place, the overtime wages shall be paid because it will be accepted that he/she determines the working days and hours.

Within the light of the above explanations; the employer’s representative  who manage and administer the entire workplace, regulate the work and working hours of the employees, who have the authority to employ and dismiss employees will not be entitled to overtime wages, provided that there is no other senior manager who gives duties and instructions in the same place.