Every extraordinary period creates its own law. The biggest epidemic that the world has seen since the middle ages has also created its own Law. We called it the CoranaVirus Law. In each of our articles, we will cover a different area. The subject of this article is its effects on working life and alternative ways of working.
The Coronavirus epidemic, which started in Wuhan, China and continues to threaten the whole world, and continues to increase in our country and almost all over the world, has been described as a pandemic by the World Health Organization, in order to protect citizens from the aforementioned Coronavirus (Kovid-19) epidemic and to prevent the spread of the epidemic. serious measures have been taken.
At the point where the decisions taken by the Presidency and the Government, the circulars and the bag laws enacted, and the measures taken at the highest level are not sufficient, all public institutions and all companies, large and small, take various measures by themselves.
Some decisions taken in order to protect public health are necessarily decisions that directly affect working life. The first of these is with the circular issued by the Ministry of Internal Affairs; on the grounds that operating as public resting and entertainment places, and that citizens will stay together at a very close distance, increasing the risk of transmission of the disease; theatre, cinema, performance center, concert hall, engagement/wedding hall, restaurant/cafe with instruments/music, casino, beer hall, tavern, coffee house, coffee house, cafeteria, country garden, hookah lounge, hookah cafe, internet lounge, internet cafe, every It has temporarily suspended the activities of all kinds of game rooms, all kinds of indoor children’s playgrounds, tea gardens, association clubs, funfair, swimming pool, Turkish bath, sauna, spa, massage parlor, SPA and sports centers.
The second and important decision was made by the Ministry of Internal Affairs in line with the recommendations of the Ministry of Health and the Scientific Committee. After 24.00 on 21.03.2020, our citizens aged 65 and over and our citizens with chronic illnesses are prohibited from going out of their residence, walking around in open areas, parks and traveling by public transportation vehicles, and going out on the streets is prohibited.
In addition to these measures, many large and small chain stores have also decided to close one after another. Some shopping malls also participated in this closure decision.
It is recommended by various Ministries, especially the Ministry of Health, that citizens should not go out on the grounds that staying together at a very close distance will increase the risk of transmission of the disease.
Under these conditions, what is the working order for those who have to close their workplaces in accordance with the legislation above, or even if the workplace is in operation, with employees over 65 years of age or with chronic illness, or businesses that do not want to work in crowds of the old order in the workplace, and even in businesses that do not want to come to the workplace and work because of fear? The question of what will happen has been asked.
When we look at the legal legislation, we see that there are more than one alternative employment opportunity given to employers. The employer may choose one or more of them in accordance with the nature of the job.
ALTERNATIVE OPERATIONS:
1- REMOTE WORKING:
With this article, which was added to the Labor Law later, the opportunity to work remotely, which is now very popular in the world, has been introduced by using the opportunities provided by technology. It is an opportunity like medicine in the days of CoronaVirus. It is an ideal working method especially for white-collar workers who have the chance to work on a computer. It is known that some world giants have been trying this system for a while in their companies for cost saving purposes.
Technology-loving companies have started to experience this type of work by connecting to their computers in the company from their homes with internet or VPN connections. So what is the legal regulation, how will this work? Subject 14 of the Labor Law. Edited in the article:
Labor Law Article 14 /4 (Additional paragraph: 6/5/2016-6715/2 art.) remote work; It is a business relationship established in writing, based on the principle that the employee performs the act of working within the scope of the work organization created by the employer at home or outside the workplace with technological communication tools.
(Additional clause: 6/5/2016-6715/2 art.) In the employment contract to be made according to the fourth paragraph; There are provisions regarding the definition of the job, the way it is done, the duration and place of the job, the issues regarding the payment of wages and wages, the equipment provided by the employer and the obligations regarding their protection, the employer’s communication with the worker and the general and special working conditions.
(Additional clause: 6/5/2016-6715/2 art.) In teleworking, workers cannot be subjected to different treatment compared to a peer worker, purely due to the nature of the employment contract, unless there is a fundamental reason. The employer is obliged to inform the employee about occupational health and safety measures, to provide the necessary training, to provide health surveillance and to take the necessary occupational safety measures regarding the equipment provided, taking into account the nature of the work performed by the employee to whom he/she employs with a remote working relationship.
(Additional clause: 6/5/2016-6715/2 art.) The procedures and principles of remote working, in which jobs remote working cannot be done by taking into account the nature of the job, the implementation of business rules regarding data protection and sharing, and other issues are determined by the regulation issued by the Ministry of Labor and Social Security.
As can be understood from the legal regulation, it is possible to switch to remote working, provided that it is controllable. If there is a permanent remote work, then a special employment contract is required. However, considering that it will cover a special period for CoronaVirus days, it is natural that it will be a temporary way of working for mandatory reasons. For this reason, it can be declared that such work will be done in a direct letter. But if you don’t like it, you can also do it in protocol form. You can find both notification examples below:
- NOTICE IN DECLARATION:
Measures are taken by both the government and all companies in order to protect citizens and prevent the spread of the coronavirus (Kovid-19) epidemic, which started in Wuhan, China and continues to threaten the whole world and our country and is described as a pandemic by the World Health Organization. As a similar precaution, it has been decided to work remotely from home for a temporary period, with the end date to be announced later, from the date of …. We kindly ask you to continue to do your work from home on the computer under the same conditions and conditions. We would like to inform you that a phone where we can reach you is always open and accessible during working hours.
- NOTICE IN THE FORM OF PROTOCOL:
TEMPORARY REMOTE WORKING PROTOCOL
Measures are taken by both the government and all companies in order to protect citizens and prevent the spread of the coronavirus (Kovid-19) epidemic, which started in Wuhan, China and continues to threaten the whole world and our country and is described as a pandemic by the World Health Organization. As a similar precaution, it was decided to work remotely from home for a temporary period, starting from the date of ….., with the end date to be announced later, and this situation was agreed upon with the employee. The parties mutually agree that the work that has been done in the workplace until today is carried out in the form of remote work under the same terms and conditions. The personnel accepts that a phone where they can be reached should always be open and accessible during working hours.
Employer- Stamp-signature Personnel-name surname-signature
2- COMPENSATION WORK: Compensatory work Labor Law 64. It is in the article. In summary, it is a flexible working model that allows the working hours lost as a result of the worker’s inability to work for any compelling reason to be compensated by working over the normal working hours within a certain period of time. Thus, the work that cannot be done in lost working days or working hours is compensated by working for a longer period of time in the future. However, there are some conditions regarding this compensatory work;
1- The first of these is that the make-up work cannot exceed 3 hours per day, and at the same time, the total working time of the personnel with the make-up work cannot exceed 11 hours. In other words, if the normal daily working hours are 7.5 hours, the personnel can work for 10.5 hours a day by making a maximum of 3 more hours of compensatory work, and these works are not counted as overtime or overtime work. However, if the daily working time of the personnel is 9 hours, in this case, they can work 11 hours a day by making a maximum of 2 hours of compensatory work per day. Therefore, you can have compensatory work done without exceeding the limit of 11 hours per day and not exceeding 3 hours per day.
2- Although the duration requirement of the compensatory work is 2 months in the law, this two-month period has been increased to 4 months within the scope of the measures taken due to the Corona Virus epidemic. In summary, if the employer closes the workplace partially or completely due to the virus epidemic, or if he cannot do enough work, he will be able to make compensatory work for the following 4 months.
3- Apart from this, another point to be noted is that it is not possible to carry out compensatory work on holidays. Make-up work can only be done on working days.
In short, if you have to take a break from work due to CoronaVirus, you can calculate the times that are not worked during the workplace and are closed, and you can have these periods as compensation work within 4 months from the start of work, in line with the above explanations.
3- SHORT WORK APPLICATION:
In cases where the weekly working hours in the workplace are temporarily reduced by at least one third due to general economic, sectoral, regional crisis or compelling reasons, or the activities in the workplace are stopped completely or partially for at least four weeks without seeking the condition of continuity, for a period not exceeding three months (up to 6 months by the decision of the President). extendable) is an application that provides income support to the insured for the period they cannot work.
In order to be able to apply short work in the workplace; The employer should apply to İŞKUR that the working time in the workplace has decreased or stopped due to general economic, sectoral, regional crisis or compelling reasons, and it should be determined that the workplace has been affected by these situations as a result of the conformity determination made by the Labor Inspectors.
For this reason, taking into account the possible effects of the new type of CoronaVirus (Covid-19), which emerged in the city of Wuhan, People’s Republic of China and showed its effect in many countries, short working practice was started within the scope of “compelling reason arising from periodic situations arising from external effects”.
The employer who requested short-time work on the grounds that it was adversely affected by the Corona Virus; can apply for short work by sending an e-mail to the e-mail address of the İŞKUR unit to which he is affiliated, with the Short Work Request Form and the list containing the information about the workers who will be made short work, together with the relevant evidence.
In order for the applications to be concluded quickly without going to the workplace, it is important to include the documents that form the basis of the negative effect of the CoronaVirus to the application. If necessary, additional documents can be requested by contacting the employer. Employers will be notified as soon as possible that their application has been received and the applications will be sent to the Guidance and Inspection Department for eligibility determination.
The CoronaVirus-related Short-time working application will be made online, unlike previous applications, and the examinations regarding this will be made on paper, not physically.
The detailed explanation published by İŞKUR for the new Short-time working application is as follows;
General Information for Determination of Conformity:
In accordance with the decisions taken by the Guidance and Inspection Presidency of our Ministry, the following matters will be taken into account in the eligibility determination examinations to be made in accordance with the Decision of the Short Work Practice to be Made due to Covid-19, taken by the Labor Inspectors of our Ministry;
- All examinations will be carried out without going to the place of the Guidance and Inspection Presidency or Group Presidency only on the relevant application documents and annexes and without issuing a determination report.
- If it is evaluated that there is a deficiency in the application documents during the examination process, the employers will be contacted immediately and the said missing documents will be requested to be sent electronically and the examination will be completed on the basis of documents immediately.
- In the conformity assessment examinations carried out by the Presidency, Ministries or related public institutions and organizations regarding the suspended workplaces, only documents regarding whether the workplaces are within this scope will be sufficient.
- In the examination of conformity with regard to workplaces whose activities are suspended or reduced within the framework of the administrative decisions of the employers, the relevant documents that will reveal the situation will be sufficient.
- Regarding the determination of conformity, a report will be prepared by the Labor Inspectors of our Ministry. The aforementioned letter and its annexes will be sent to the Provincial Directorates of our Institution electronically via the Kep address, and the wet signed version will be sent later to be kept in the files of the workplaces.
- It should be taken into account that the conformity determination process made by the Presidency, Ministries or related public institutions and organizations regarding the workplaces whose activities have been stopped is limited to the duration of the administrative disposition, together with the minimum and maximum periods regulated in the Law, and the short-time working practice will automatically end with the termination of the administrative disposition. .
Notifying the Employer of the Result of the Short Working Request
The employer is notified by İŞKUR as a result of the conformity determination made by the Labor Inspectors that the working time in the workplace has decreased or stopped due to general economic, sectoral, regional crisis or compelling reasons. The employer also announces the situation in the workplace where the workers can see it and notifies the labor union, if any, to the party to the collective bargaining agreement. In cases where an announcement cannot be made to the workers through advertisement, a written notification is made to the workers who are subject to short-time work. The employer, whose short-time work request is approved, updates the Short-time Work Notification List and sends it within the period notified by the Institution.
Employers who request short-time work on the grounds that they are adversely affected by the Corona Virus will receive the result of their applications via e-mail to the address where they sent their requests. Employers whose request is found suitable update the Short Work Notification List within the period notified by the Institution and send it to the e-mail address of the İŞKUR unit to which they have applied.
Short Working Allowance Period, Amount and Payment
Daily short-time working allowance; It is 60% of the insured’s daily average gross earnings calculated by taking into account the last twelve months’ premium earnings. The amount of short-time working allowance calculated in this way cannot exceed 150% of the gross amount of the monthly minimum wage.
Short-time working allowance is paid to the worker himself and on a monthly basis on the 5th of each month for periods not worked to complete the weekly working period applied in the workplace. Payments are made through PTT Bank. The Minister of Family, Labor and Social Services is authorized to bring the payment date forward.
The time interval during which short work will be done within the daily, weekly or monthly working period is determined by the employer, taking into account the traditions of the workplace and the nature of the work.
For short working periods, SSI Monthly Premium and Service Certificate and the reason for missing days are reported as “18-Short Working Allowance” on behalf of the workers who are subject to short working.
The duration of the short-time working allowance is as long as the short-time working period, provided that it does not exceed three months.
In case of short-time working at the workplace due to compelling reasons, the payments start after the one-week period stipulated in the Article 24 (III) and Article 40 of the Law No. 4857. Within this one-week period, wage and premium obligations belong to the employer.
The wage and short-time working allowance amount of the employee who does short-time work, regarding the non-working week holidays, national holidays and general holidays, is paid by the employer and the Institution in proportion to the period of short-time work.
Collection of Over or Unnecessary Payments within the Scope of Short Working Allowance; Overpayments due to incorrect information and documents provided by the employer are collected from the employer together with the legal interest, and overpayments due to the employee’s fault are collected from the employee together with the legal interest.
Premiums Paid for the Period of Short Working Allowance; General health insurance premiums are paid for the period in which the employee receives short-time working allowance. Short and long term insurance premiums are not transferred in the said period.
Early Termination of Short Work; In the event that the employer decides to start its normal activities while the short-time working practice continues, it is obligatory to notify the situation in writing to the Institution unit, if any, to the labor union party to the collective bargaining agreement and to the workers six working days in advance. Short work ends as of the date specified in the notification. Undue payments related to late notifications are collected from the employer with legal interest.
Withdrawal of Short Working Allowance; Short-time working allowance as of the start of the medical report, which is the subject of the temporary incapacity allowance, in case of getting a job, starting to receive an old-age pension, being recruited for any reason, leaving the job due to a work assignment arising from any law, or in case of the start of the temporary incapacity allowance. is cut.
Employer’s Obligation to Keep Records; The employer who makes short-time work is obliged to keep records of the working hours of the workers and submit them if requested.
Let’s add a final note: According to the regulation made, employers who want to benefit from short-time working should not leave their workers for any reason other than Article 25/II of the Labor Law “morality and goodwill rules”. In other words, in order to benefit from short-time working, you can leave a worker for one of the reasons available in Article 25/II of the Labor Law (with code-29), but if you leave a worker for any reason and with any code, you will not be able to benefit from short-time working.
4- ANNUAL LEAVE APPLICATION:
The employer, who cannot employ his personnel, also has the right to take his personnel on annual leave during this period. In terms of time, we are entering a very lucky month in terms of the implementation of this provision. As a matter of fact, according to the Annual Leave Regulation, it is very possible for the Employer to apply collective leave covering all or some of the workers between the beginning of April and the end of October. This permit covers the whole company or a part of it or parts thereof, if needed, and in this way, it is possible to take a large group of people on annual leave at the same time. Let’s add that the worker does not have the right to say that he is not going on leave, according to the said regulation, in the aforementioned date range.
ANNUAL PAID LEAVE REGULATION / Collective Leave / Article 10 — The employer or employer’s representative may apply collective leave covering all or some of the workers between the beginning of April and the end of October.
When this practice is followed, the leave board arranges and announces the leave schedules in such a way that the workers who will go on collective leave will start at the same time and show the end of each worker’s leave period according to the leave periods and road permit requests in Article 53 of the Law.
Collective leave periods can be determined to include workers who have not yet earned the right to annual paid leave during these periods. In so far, if this collective leave method is not applied in the following year or years, the date on which those in this situation will be entitled to the next annual paid leave is determined according to general principles.
5- FREE PERMISSION:
Although it is not clearly regulated in the Labor Law, one of the most hot topics is Unpaid Leave.
All other unpaid leaves must be used with the mutual consent of the parties, except for the unpaid leave given as a right to the worker in Article 56 and Article 74 of the Labor Law No. 4857 .
As a matter of fact, the 4-day unpaid road leave, which is given to the worker who will spend his annual leave in another city, as stated in Article 56, and the unpaid leave, which can be used for up to 6 months at the end of the report, if the female worker who is reported due to the birth mentioned in Article 74 requests it. Since maternity leave is a legally recognized right to workers, the employer’s consent is not sought.
However, all other unpaid leaves are subject to the acceptance of both the employee and the employer. As a rule, The employer cannot force the workers to take unpaid leave and must obtain the consent and written consent of the worker in order to apply such unpaid leave. Otherwise, the employee who is forced to take unpaid leave by the employer may terminate the employment contract with just cause.
However, if the CoronaVirus problem is prolonged, considering that it is the last opportunity to be applied before the termination of the employment contract, there is no doubt that this opportunity is a viable alternative for many businesses, although it is not normally preferred. Of course, it is an application that needs the written consent and signature of the employee.
6- LAST REMEDY: TERMINATION OF EMPLOYMENT CONTRACT AND IMPLEMENTATION:
As a result of the contraction in the business volume due to the economic crisis caused by the virus frenzy, a last opportunity for the employer, who has difficulty in meeting the excess employment and high labor costs, may be to go to the termination of the employment contract. However, it should be noted that termination of employment should be a last resort. In this difficult period, no one should be unemployed and these difficult times must be overcome hand in hand. However, due to the aforementioned reasons and the obligation, an appropriate regulation has been included in the Labor Law. This regulation is the provision of Article 25/III of the Labor Law and the related provision of article 40.
The said legal regulation is as follows:
Labor Law Article 25/III: The right of the employer to terminate for just cause: Regardless of the period of time, the employer may terminate the employment contract before the expiry of the period or without waiting for the notification period in the following cases:
III- Coercive reasons: The emergence of a compelling reason that prevents the worker from working at the workplace for more than one week
Half wage Article 40 – An employee who cannot work or is not employed due to the compelling reasons indicated in subparagraphs (III) of Articles 24 and 25 is paid half wage for every day up to one week during this waiting period.
In the subparagraph (III) of Article 25 of the Labor Law No. 4857, it is explained that the employer has the right to terminate immediately if a compelling reason arises that prevents the employee from working at the workplace for more than one week. The reasons that prevent the worker from working must occur in the worker’s environment. The reasons arising from the workplace and preventing work are not included in this article. For example, closure of the workplace is not considered a compelling reason. However, situations such as interruption of transportation due to natural events such as floods, snow, earthquakes, and quarantine due to epidemics are compelling reasons.
Pursuant to Article 40 of the Law No. 4857, half wages are paid to the worker for the “times not worked” within the scope of Article 25/III of the Law due to compelling reasons. In the event that the employee’s employment contract is terminated for compelling reasons pursuant to subparagraph 25/III, the employer does not have obligations to comply with the notification requirement or notice indemnity. However, severance pay must be paid in accordance with Article 14 of Law No. 1475.
Hoping to have healthy and beautiful days as soon as possible…
Erdal Kardas
Lawyer / K&P LEGAL LAW OFFICE
