12 March 2021
The Remote Working Regulation ("Regulation") has entered into force by publication in the Official Gazette numbered 31419 and dated 10 March 2021.
Remote work is defined as a business relationship where the employee performs his/her duties at home or outside the workplace with technological communication tools within the scope of the work organization created by the employer.
Remote work, which was introduced back in May 2016 through an amendment to the Labor Law No. 4857 ("Labor Law"), has enjoyed a wider range of implementation recently due to technological developments and changes in the work organization. In addition, with the Covid-19 pandemic, reasons such as the risk of working in closed workspaces endangering the health of both employees and the employer and the disruption of business activities due to potential incidents increased the significance of flexible working models and especially remote working in business life.
It was stipulated in Article 14 of the Labor Law that the procedures and principles of working remotely would be determined by the regulation to be issued by the Ministry of Labor and Social Security. Despite the spread of its field of implementation, the Regulation was anticipated for a long time due to the lack of a concrete and sufficiently clear regulation in the Labor Law regarding remote working. Now, more detailed provisions regarding the remote working have been introduced with the Regulation.
You may find below a summary of the key changes introduced by the Regulation.
II. Existing Legal Regulations Regarding Remote Working
Upon the enactment of the Regulation, first the Regulation will be applicable for remote working and in respect of issues which are not regulated under the Regulation, the Labor Law will be applied. In cases where there are no provisions in these regulations, the provisions of the Turkish Code of Obligations ("TCO") regarding home service agreements will be applicable. Once more in the absence of a provision in the section of TCO regulating the home service agreements, the general provisions of TCO regarding the general service agreements will be applied.
III. Provisions Introduced by the Regulation
It is observed that for most of the issues, the provisions of Labor Law regulating the remote working have been repeated by the Regulation. Nevertheless, taking into account the pandemic, other important provisions on certain critical issues have also been included in the Regulation.
1. The form of remote working agreements is regulated.
In accordance with Article 14 of Labor Law, employment agreements relating to remote working must be formed in writing. The agreement should include the description of the job, the way it is performed, the duration and place of work, the wages and the payment of wages, the work tools and equipment provided by the employer and the obligations regarding their protection, the employer's communication with the employee and the general and special working conditions. While the form requirement regarding employment agreements may be interpreted as a validity condition in accordance with the general provision of TCC Art.12/2, the Court of Cassation tends to evaluate written form as a condition of proof with the motive to protect employees.
2. Arrangements regarding the remote workplace is regulated.
Where necessary, arrangements regarding the remote workplace should be finalized before employee starts to carry out the work. The method for bearing the costs of these workplace arrangements should be determined jointly by the employee and the employer.
3. Rules regarding remote working costs, work tools and equipment are also provided in the Regulation.
Before the issuance of the Regulation, it was considered that Articles 413 and 414 of TCO shall be applied in terms of remote working costs. According to these provisions, unless there is an agreement or local custom to the contrary, the employer is obliged to provide the tools and materials necessary for the work to the employee. If, in agreement with the employer, the employee allocates his/her own vehicle or equipment to the performance of the work, unless there is an agreement or local custom to the contrary, the employer is obliged to pay the employee an appropriate compensation. In addition, 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. All agreements regarding the full or partial payment of the compulsory expenses by the employee will be deemed void according to these provisions.
It may be observed that in the Regulation, there is no provision that substantially deviates from or exceeds the existing provisions of TCO and that rather the provisions of the Labor Law are repeated in terms of work equipment, and the issue is left to the employment agreement between the parties with only a partial regulation in terms of costs.
Accordingly, pursuant to the Regulation, in accordance with the provision of the TCO on the service agreements, unless otherwise agreed in the employment agreement, the procurement of the necessary materials and work equipment needed by the employee for the production of goods and services should be provided by the employer. The principles of using these materials, the points that must be considered during use, their maintenance and repair conditions should be clearly and understandably notified to the employee.
If the work equipment is provided by the employer, a list of the work equipment indicating the value thereof as of the date of delivery must be submitted to the employee by the employer in writing. A copy of this document as signed by the employee should be kept in the employee's personal file. However, if the list of work equipment is already arranged within the employment agreement or as an addendum to the employment agreement, a separate document in writing will not be required.
Likewise, the issues related to determining and defraying the compulsory expenses arising from the performance of the work and directly related to the production of goods or services should be specified in the employment agreement.
4. It is stipulated that the time interval and duration of remote work will be determined in the employment agreement.
As per the Regulation, the time interval and duration of remote work should be determined in the employment agreement. However, depending on the limitations stipulated in the legislation, the employee and employer will be able to make changes in their working hours. As for overtime work, it is available in accordance with the provisions of the existing legislation upon the written request of the employer and the acceptance of the employee.
5. In remote work, the communication method and the time interval for such communication will be determined by the employee and the employer.
6. The protection of data obtained during remote work is regulated.
Regarding the protection and sharing of the data obtained by the employee in relation to the workplace and the work he/she performs due to remote work, the employer should inform the employee about the operating rules and legislation and take all the necessary measures for the protection of the relevant data. The definition and scope of the data to be protected will be determined by the employer in the employment agreement. It is also compulsory for the employee to comply with the operating rules determined by the employer for the protection of data.
7. The obligation of the employer to take measures regarding occupational health and safety shall continue during remote work.
The employer should inform the employee about occupational health and safety measures, provide the necessary training, provide health surveillance, and take the necessary occupational safety measures in relation to the equipment provided, taking into account the nature of the work performed by the employee.
8. Occupations not eligible for remote working have been determined.
It will not be possible 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 and working processes with a risk of exposure to biological factors. The units, projects, facilities or services that are strategically important in terms of national security which are not eligible for remote working will be determined by the public institution and organization that is responsible for or procuring the service from the relevant unit, project, facility or service.
9. The procedure to be followed in transition to remote work in employment relationships has been regulated.
Pursuant to the Regulation, while it is possible to establish an employment relation directly with a remote work agreement, it is also possible to convert the employment agreement of the employee, who is already working in the workplace, to a remote work agreement if the employee and employer agree upon such shift of working conditions. In such case, the employee must make a written request to work remotely. This request will be evaluated by the employer in line with the procedure determined in the workplace, and during this evaluation, the suitability to work remotely due to the nature of the job and other criteria determined by the employer will be taken into consideration. It is evident that in accordance with the principles of labor law, these criteria should be objective and in line with the principle of equal treatment. The result of the evaluation of the request must be notified to the employee within 30 (thirty) days in writing.
Once the request of the employee is accepted, a contract in writing must be executed as explained above.
It is possible for the employee who has started to work remotely, to request to work once more in the workplace in writing. In this case, the employer should consider this request with priority.
Unlike the above procedure which will be applied in the absence of compelling reasons requiring remote working conditions, it is clearly set forth that if the remote work will be applied in whole or in part in the workplace due to compelling reasons, the request or approval of the employee will not be required for transition to remote work.
It is understood that the Regulation was prepared and promulgated in an expedited manner due to the pandemic requirements and therefore it does not regulate all issues that were expected to be resolved. Nevertheless, it is still important that a regulation has been issued in terms of certain pressing matters, such as the no necessity for approval for remote work due to pandemic as a compelling reason and the procedure for transition to remote work. Other problems that are faced in the implementation of remote work will have to be resolved in practice within the framework of the existing regulations. *