The Regulation specifies the type of work in which remote working cannot be allowed, the form and content of the agreement based on the remote working model, the special obligations of the parties in this framework, and the rules to transition to remote working or return to workplace.
WORK THAT CANNOT BE PERFORMED REMOTELY
Within the scope of the Regulation, the type of work for which the remote working model cannot be applied is relatively narrow, applicable in the following cases:
- Working with dangerous chemicals and radioactive materials,
- Processing these materials or working with the waste of these materials and
- Activities at risk of exposure to biological factors.
Considering the strategic importance of national security, for all work carried out by public institutions and organisations through service procurement, the authority to determine the application of the remote working model is left to the relevant public institutions and organizations.
For all employment relationships not listed under the Regulation adopting the remote working model will be possible except in the event of obstacles in the very essence or nature of the work in question.
MAIN REQUIREMENTS: WRITTEN FORM AND MUTUAL AGREEMENT OF PARTIES
The rule stating that the employment agreements based on remote working should be made in written form has been repeated within the scope of the Regulation, alongside article 14 of Labour Law No. 4857.
However, the Regulation also states that the following matters should be determined within the framework of the written agreement regarding remote working between the parties: arrangement of the working place, determination of the working hours, management of communication during remote working, supply of tools and equipment, use and maintenance of such tools and equipment, reimbursement of the production costs related to performance of the work, protection of personal data and application of the work health and safety rules and measures.
In addition, the Regulation states that the supervision of the overtime, which is one of the most problematic issues in remote working practice, is left to the employer. The Regulation also emphasises that the employer's request for overtime should be made in writing. Although it is understood that the difficulties in the management and supervision of overtime are taken into account in the remote working model, the organisation of the request and acceptance procedure is fully left to the discretion of the employer.
EFFECT OF THE COMPELLING REASON ON THE IMPLEMENTATION OF THE REMOTE WORKING MODEL
Article 14 of the Regulation states that, in the presence of compelling reasons, the request or approval of the employee will not be sought for the transition to full or partial remote working in the workplace. It is remarkable that the definition of "compelling reasons" has not yet been made within the scope of the Regulation. In any event, the Regulation has also confirmed that the remote working practices applied based on decisions taken unilaterally by employers within the scope of their management right and occupational health and safety measures due to the risks arising from the Covid-19 outbreak, are in compliance with the law.
In cases where compelling reasons disappear, a request-approval mechanism that can be operated in both directions between the employee and the employer can be put in place. Thus, practices that do not reflect the mutual agreement of the parties are not legally allowed.
As a rule, in the absence of compelling reasons, transition to remote working or return to the workplace should be interpreted as an essential change in working conditions. Therefore, if the request comes from the employer, the approval procedure should be implemented in accordance with Article 22 of Labour Law No. 4857. By taking into account the fact that this request may also come from the employee, Article 14 of the Regulation states that if the employee makes a written request, this request is assessed by the employer within 30 days and the response is notified to the employee "in accordance with the internal procedures of the workplace".
In conclusion, while the Regulation does not meet expectations regarding the removal of existing uncertainties or loopholes, in fact the absence of mandatory rules within the Regulation needs to be regarded as a call to employers applying partially or wholly remote working model to make the required arrangements. In this regard, workplaces are allowed to create their own rules and procedures in terms of the remote working practices.
As of today, internal regulations for remote working have become a requirement for every employer wishing to avoid potential disputes.
In compliance with Turkish bar regulations, information relating to Turkish law matters which are included in this client alert is given by Özdirekcan Dündar Şenocak Avukatlık Ortaklığı, a Turkish law firm acting as correspondent firm of Gide Loyrette Nouel in Turkey.