In an employment relationship, working time denotes the period during which the employee performs the obligation to work and remains under the employer’s managerial authority. Determining this period correctly is not merely a theoretical question; the calculation of a great many items, from overtime pay to weekly rest day entitlements, depends directly upon it.
By Article 66, Labour Act No. 4857 brings within the scope of working time certain periods during which the employee is not in fact engaged in productive activity. Through this choice the legislator sought to prevent the exclusion from the calculation of time spent under the employer’s supervision or directly connected with the performance of the work, and the loss of entitlements that would follow.
Below we address which periods are counted as working time, the effect of that classification on the overtime calculation, and the employee’s wage entitlements in respect of those periods.
The Concept of Working Time and Its Statutory Basis
The Weekly Limit under the Labour Act
The concept of working time corresponds to the period during which the employee performs the agreed obligation and at the same time remains subject to the employer’s power to give instructions. The weekly upper limit is laid down in Article 63 of the Labour Act:
Labour Act No. 4857, Art. 63(1)
"In general, working time shall be a maximum of forty-five hours per week."
Under the same provision, unless the parties agree otherwise, this period is applied by dividing it equally among the days worked.
Accurate determination of the period is decisive for the calculation of weekly rest day entitlements, overtime pay, public holiday and national holiday payments and the remaining employment claims. For this reason, working time in employment law is not read as being confined to productive activity actually performed.
The Purpose of the Provision
Article 66 of the Labour Act counts as working time a number of periods during which the employee does not in fact work. The legislator’s purpose is clear: were the time spent under the employer’s orders and supervision, or spent in direct connection with the performance of the work, left out of the calculation, the employee would suffer detriment in respect of wages and other entitlements. The provision forestalls that outcome.
Principal Situations Counted as Working Time
The fact that the employee is not engaged in productive activity at a given moment does not by itself require the period in question to be left out of the calculation. Certain periods spent under the employer’s orders and instructions, or capable of being connected with the conduct of the work, are likewise included in working time.
Standby Periods at the Workplace
Periods during which the employee is present at the workplace but, on the employer’s instructions, is waiting for work to arise and is not in fact producing anything are counted as working time. In such cases the employee may not leave the workplace and remains ready to work at any moment.
A temporary halt to work owing to a machine breakdown on the production line, periods of readiness during a shift handover, or waiting periods arising from the organisation of the work may be assessed within this scope. Even though the employee is not producing anything during such times, the period is added to working time because the employee remains subject to the employer’s managerial right.
As a natural consequence, time spent in this way by an employee obliged to wait for work to begin or resume may, where the conditions are met, also feed into the overtime calculation.
Time Spent Travelling on Assignment
Where the employee is sent by the employer to another workplace, to a construction site, to a client or to a different city, the time spent travelling by reason of that assignment is counted within working time. This is because the employee is acting during that time not on their own initiative but pursuant to the instruction given, and remains within the organisation of the work.
What is decisive is that the period was spent within the scope of a task assigned by the employer. The ordinary commuting time between home and workplace, which forms part of the employee’s daily life, is as a rule not taken into account.
Accordingly, time spent travelling during an assignment or business trip is assessed within the scope of working time on the particular facts of each case; where the conditions are met, it may also feed into the overtime calculation.
Work Away from the Main Workplace
Where the employee is required to work at a place other than the main workplace, those periods are likewise counted as working time. Here the employee is in any event actually continuing to perform the obligation to work; the fact that the place where the work is done has changed makes no difference in terms of working time.
In practice it is common for an employee to be assigned temporarily to another construction site, to a client’s premises or to a different workplace belonging to the same employer. In such cases the time spent remains within the scope of working time, since the employee continues to perform the agreed obligation pursuant to the instruction given.
Nursing Leave for Breastfeeding Female Employees
Female employees who have given birth are granted a specified period of leave so that they may breastfeed their children. Under the statute, a female employee with a child under one year of age is granted a total of one and a half hours of nursing leave per day.
Article 66 of the Labour Act expressly provides that this leave granted to breastfeeding female employees is to be counted as working time. Consequently, although the employee is not in fact working during the leave, that time is deemed to have been worked and is added to the period.
The practical result of the provision is that no deduction may be made from the wages of a female employee taking nursing leave. The shortening of the daily working time on account of the leave does not lead to any reduction in the employee’s wages or other entitlements.
Descent and Ascent Times in Underground Work
In some lines of work, employees must first reach the working area before they can begin productive activity. This is pronounced in underground work such as mining and tunnelling; employees must spend a certain amount of time descending to the working point and returning to the surface when the work is finished.
Under Article 66 of the Labour Act, the time spent by those working underground in descending into and ascending from shafts is counted as working time. Although the employees are not producing anything during that time, these periods, being indispensable to the performance of the work, are included in the calculation.
The purpose of the provision is to prevent the detriment that would arise in respect of wages and other entitlements if the time necessarily spent in reaching the working area were left out of the calculation.
Travel to and from Work by Employer Shuttle
Time spent travelling to and from work does not, as a rule, fall within working time. Time spent by the employee in travelling from home to the workplace by their own means is therefore not taken into account.
In the practice of the Court of Cassation, the time spent where the employee travels directly between home and workplace on a shuttle service provided by the employer is likewise, as a rule, not counted as working time. That period is characterised as commuting time relating to the employee’s daily life.
Nevertheless, in certain cases time spent on the shuttle may be included in working time. Where the employee is carried by the shuttle directly to the point at which the work is to be performed, where the working area lies outside the workplace, or where, as required by the organisation of the work, the employee is collected from a designated assembly point and taken to the place of work, these are examples of such exceptional cases.
The Effect of These Periods on Overtime
Reflection in the Overtime Calculation
For the purposes of the Labour Act, overtime arises where 45 hours per week are exceeded. In determining the weekly total, account is taken not only of work actually performed but also of the periods counted as working time under Article 66.
Accordingly, periods during which the employee is not in fact producing anything but is on standby pursuant to the employer’s instructions, or which are spent in connection with the conduct of the work, are added to the weekly period. Where, following that addition, the weekly total exceeds 45 hours, overtime arises.
By contrast, rest breaks taken during the day, such as meal and tea breaks, do not fall within working time by virtue of Article 68 of the Labour Act. Time spent during a rest break is therefore included neither in the 45-hour weekly period nor in the overtime calculation.
Effect on the Wage Calculation
The situations counted as working time play a part not only in determining the period but also in establishing the employee’s wage entitlements. Since these periods are deemed to be working time, the employee also becomes entitled to wages in respect of them.
If, once those periods are added, the weekly total exceeds 45 hours, the excess is treated as overtime and must be paid at a premium of 50 per cent.
As will be seen, the inclusion within the period of certain times not actually worked directly affects both the overtime calculation and the total sum payable. Correct determination of the scope is therefore important in avoiding disputes between the parties.
Wages for Periods Counted as Working Time
Accrual of the Right to Wages
Since these periods are in law deemed to have been worked, the employee may also claim wages for them. The fact that work was not actually performed does not mean that no wage accrues for the period in question. The employee’s right to wages continues in respect of time spent under the employer’s supervision or capable of being connected with the performance of the work.
Moreover, since these periods enter into the calculation of the weekly total, overtime pay may also arise where 45 hours are exceeded.
Remedies Available to the Employee
In respect of the situations counted as working time, the employee’s wages and other employment entitlements are safeguarded. It is not legally open to the employer to avoid payment on the ground that no work was actually performed during those times.
Within this framework, the employee may:
- claim wages in respect of the periods in question,
- claim overtime pay where the addition of those periods to the weekly total takes it above the limit,
- bring an action for employment claims, severance pay foremost among them, where the periods have been disregarded altogether.
The inclusion within working time of certain periods not actually worked therefore performs a decisive function not only in determining the period but also in protecting the employee’s financial entitlements.
Independent Legal Assessment
The scope of working time is, in employment litigation, frequently a preliminary question debated before the existence of the claim itself. How standby, assignment and travel periods are to be characterised may produce markedly different calculation outcomes for one and the same working arrangement. Defining the working arrangement in writing before a dispute escalates therefore affords predictability to the employer and ease of proof to the employee.
On the employer’s side, keeping timesheets, shift rosters and assignment letters in good order and, on the employee’s side, retaining records showing standby and travel periods form the basis of any technical calculation subsequently undertaken. In practice the outcome of the court-appointed expert’s examination depends largely on the quality of these documents.
In a given file it is advisable to pay particular attention to the following points:
- Separating standby periods from rest breaks on the face of the documents
- Recording travel time arising from assignments separately from ordinary home–workplace commuting
- Examining the nature of the shuttle arrangement in terms of whether the employee is carried directly to the working area
- Entering nursing leave on the payroll in a manner that gives rise to no deduction
- Systematically adding descent and ascent times to daily working time in underground work
- Accruing the premium wage as a separate item for periods in which the weekly total exceeds 45 hours
Independent Legal provides advisory and litigation services in employment law disputes, from the determination of working time to the calculation of overtime and other employment claims.