As it is known, teleworking has become a very common practice in workplaces all over the world due to the coronavirus epidemic. It was a matter of curiosity when the regulation on the subject would come into force in Turkey since remote working practice became widespread in almost every workplace in our country as well. The Regulation on Teleworking, which includes regulations on the procedures and principles of remote working and closely concerns both employees and employers, entered into force after being published in the Official Gazette dated 10.03.2021.
In accordance with the Regulation, the procedures and principles for remote work will be determined with the teleworking agreement which should be made in written, in other words, written form is set forth as a requirement for the employment relations to be established on the basis of remote work. In the teleworking agreement, the description and the way of the work, the time interval, duration and place of remote working, wage and the matters regarding the payment of wages, as well as the work tools provided by the employer, the obligations regarding the protection of these tools and the matters regarding the communication of the employer with the employee will be stipulated. However, the regulation does not give any further detail on subject. It is predicted that the implementations will settle in line with the judicial decisions of general practice and the ILO Teleworking advisory texts.
The employment relationship can be established directly with a teleworking agreement, or it is also possible to convert the agreement regarding the work in the workplace into a teleworking agreement if the employee and the employer agree so. After the employee notifies the employer regarding his/her request to work remotely, it will be evaluated by the employer whether the qualification of the job and the employee is suitable for working remotely. The employer will notify the employee regarding the evaluation result in writing within thirty days, and if deemed suitable as a result of the evaluation, a teleworking agreement will be concluded. The employee has the right to request to work in the workplace again in the same way. In accordance with this regulation, remote working can only be established with the request and consent of the employee. The employer can implement the remote work application only in the presence of force majeure, without seeking the employee's request and consent.
In case force majeure arise, it is stipulated that the request or approval of the employee is not a requirement in order to start working remotely in the whole or in a part of the workplace. It is possible to interpret the force majeure as all kinds of reasons that will prevent working in the workplace in terms of Labor Law legislations. These reasons may be economic or physical reasons related to the workplace environment, as well as the epidemic disease and some measures that is taken as a result of it like curfew that is currently implemented. However, the matters that will affect the legal establishment of the process such as what force majeure is and the proof of its existence are left unclear in the regulation.
In accordance with the Regulation, the arrangements regarding the place of remote work should be completed before the work is started and the cost of the related arrangements should be determined between the employee and the employer and arranged in the employment agreement. Unless otherwise stipulated in the employment agreement, the materials and tools required for the work shall be provided by the employer. In addition, the required materials and tools should be listed within the contract or as an annex to the agreement. However, if there is a conflict between the employer and the employee on these matters, it will be impossible to establish the remote working process.
In case of remote work, how to ensure data security as well as how to take occupational health and safety measures were among the controversial matters. The regulation sheds light on these important topics. While establishing a remote working relationship, the employer will determine the definition, scope and processing rules of the data to be protected by agreement and employee will be obliged to comply with these rules for the data protection. The employer will be obliged to inform the employee about occupational health and safety precautions according to the nature of the remote work, to provide the necessary trainings, to provide health surveillance and to take the necessary occupational safety measures for the tools he provides.
Occupations that require working with hazardous chemicals and radioactive substances, processing these substances or working with the waste of these substances are determined as the jobs that cannot be done remotely in accordance with the regulation. In addition, the jobs that are performed by means of service procurement by the public institutions and organizations pursuant to related legislations and the units, projects, facilities or services that are strategically important in terms of national security that will be determined by the relevant public institutions and organizations will not be able to work remotely.
CANAZ YILMAZ ATTORNEYS