The Regulation on Remote Working (“Regulation”) prepared by the Ministry of Family, Labour and Social Services, entered into force upon its publication in the Official Gazette No. 31419 and dated 10 March 2021. Amidst the increasing number of remote working arrangements during the Covid-19 pandemic, the Regulation aims to determine the works which cannot be performed remotely, provide for the rules on the protection of data in a remote setting, and set forth the general procedures and principles of remote working. In this article, we will summarize the major revelations under the Regulation.
The Regulation applies to employees working remotely as per article 14 of the Turkish Labour Law no. 4857 and their employers. “Remote working” as described in the said article is an employment relationship based on the principle that the employee performs her/his duties at home or outside the workplace, within the business organization established by the employer, using technological communication tools. In this regard, whether the Regulation will apply to workplaces that implement remote working on a temporary basis and as a non-permanent measure during the Covid-19 pandemic is not clear. However, the fact that the Regulation provides for the possibility of transitioning to remote work during force majeure events can be read as a sign that it will apply to temporary remote working arrangements.
Form and Content of the Contract
Employment contracts related to remote working must be made in written form. The contract must provide for the description, duration, and the place of the work, the way of conducting the work, matters related to salary and the payment of salary, working tools and equipment provided by the employer and the obligations regarding their maintenance, the employer’s communication with the employee, and provisions regarding general and special working conditions.
Arrangement of the Working Space
Necessary arrangements must be made for the place of the remote working to ensure that it is appropriate before the work starts. The method of covering the costs arising from such arrangements shall be determined jointly by the employee and the employer.
Supply and Usage of Working Tools and Equipment
Unless otherwise agreed in the employment contract, the employer must provide the tools and equipment required to produce goods and services. The rules on the use, maintenance, and repairment of these tools and equipment shall be explained clearly to the employees.
If the working tools are provided by the employer, the employer must provide the employee with a document, in writing, listing such tools and indicating the value of each tool as of the delivery date. The employer is required to keep a copy of this document signed by the employee in the employee’s personal file. If the list of the working tools is annexed to the employment contract during the term of the employment contract or on the signing date, a separate written document will not be necessary.
Covering the Production Costs
The issues related to the identification and payment of the necessary expenses directly pertaining to the production of goods or services arising from the performance of the work must be specified in the employment contract.
Determination of the Working Period
The working hours and duration of remote working shall be specified in the employment contract. The parties can change the working hours provided they abide by the restrictions specified in the legislation. Overtime shall be performed upon the written request of the employer and the acceptance of the employee, in accordance with the law.
Protection of Data
Employers are obliged to inform the employees working remotely about the business rules and the relevant legislation regarding the protection and sharing of the data related to the workplace and the work. Employers must also take the necessary measures for the protection of such data. The Regulation does not particularly refer to personal data and uses the term “data”. In this regard, the said obligations will not only apply to the protection of personal data but any data within the scope of the business operations.
Measures of Occupational Health and Safety
The employer is obliged to consider the nature of the work performed by the employee and accordingly provide the employee with the information on occupational health and safety measures and the necessary training, to carry out health surveillance, and to implement the necessary occupational safety measures related to the equipment provided to the employee.
Works Unsuitable for Remote Working
Works that involve hazardous chemicals and radioactive materials, processing of these materials or working with the wastes of these materials or works that pose a risk of exposure to biological factors cannot be performed remotely.
With regard to works carried out by public institutions and organizations through service procurement as per the relevant legislation and the units, projects, facilities, or services that have strategic importance in terms of national security, the public institution responsible for such unit, project, facility, or service, or the public institutions receiving the service will determine which works are not suitable for remote working.
Transition to Remote Working
According to the Regulation, an employment relationship can either be established as a remote working agreement from the beginning or the employment contract of an employee working at the workplace can be converted to a remote working contract.
The Regulation sets forth the procedure to be followed by employees who wish to convert to remote working:
a) The request shall be made in writing.
b) The employer will evaluate the request in line with the established procedure of the workplace. In this process, the employer will assess the suitability of remote working by considering the nature of the work and the employee and other criteria determined by the employer.
c) The result shall be notified to the employee within 30 days, by following the same procedure as the request.
d) In case the request is accepted, an agreement shall be made in accordance with the provisions set forth in the Regulation.
The Regulation further stipulates that if the remote working will be applied to the whole or part of the workplace due to force majeure, the employee’s request or approval is not required for the transition to remote working.
The Importance and Connotations of the Regulation
The Regulation provides many rules concerning remote working, although none of these is new. All the said rules were already applicable to remote working arrangements as per the general principles of employment law and the general provisions under the Turkish Labour Law. Nevertheless, the Regulation is still helpful in that it highlights these rules and leaves no doubt that they will apply to employees working remotely.
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