Overtime Pay: The 45-Hour Week, Premium Pay and Proof (Labour Act Art. 41)

Under the Labour Act the general working time is at most forty-five hours a week. Work beyond that must be paid at a premium. In practice, though, the real dispute is how to prove whether overtime was worked and whether it was paid. This article summarises the framework of Arts. 41 and 63 of the Labour Act No. 4857 and the approach of the 9th Civil Chamber of the Court of Cassation on proof.

1. What is overtime?

Under Art. 41, overtime means work exceeding forty-five hours a week within the conditions set in the Act (Art. 63: general working time is at most forty-five hours a week). By agreement, normal weekly working time may be distributed differently across the working days, provided it does not exceed eleven hours a day; if the weekly average within a two-month balancing period does not exceed normal weekly time, work above forty-five hours in some weeks is not overtime (Arts. 41, 63; the balancing period can be extended by collective agreement to four months, and to six months in tourism).

If the contract sets weekly time below forty-five hours, work above the average weekly time up to forty-five hours is work for additional hours (fazla sürelerle çalışma).

2. What premium applies?

Type of work	Pay	Optional time off
Overtime (above 45 hours)	Hourly rate increased by fifty per cent	1 hour 30 minutes per hour
Additional hours (between the contract's hours and 45)	Hourly rate increased by twenty-five per cent	1 hour 15 minutes per hour

If they wish, the worker may take free time instead of premium pay; free time earned must be used within six months, during working hours and without any deduction from pay.

3. Limits in the Act

• Total overtime cannot exceed 270 hours a year.
• Working overtime requires the worker's consent.
• No overtime may be worked in short or limited-term jobs based on health grounds, or in night work.
• Special provisions of Art. 41 apply to underground mining work.

4. Proof: who has to prove what?

According to the 9th Civil Chamber of the Court of Cassation, proving that overtime was worked at the workplace is for the worker, and proving that it was paid is for the employer. The worker may prove it by written documents such as payroll and workplace records, and bank slips; where they cannot prove it in writing, they may also rely on witness statements (E.2022/8548, K.2022/15198).

Payslips and signatures

• Signed payslips showing accrued overtime are important evidence of payment for those periods. Even so, the same chamber found it wrong to reject the worker's claim entirely for months for which the signed payslips show no overtime accrual; for those months it said that in that case a calculation should be made on three hours a week and, since proof does not rest on a document, accepted with an appropriate reduction (E.2021/3140, K.2021/7310).
• Where payslips show unsigned overtime accruals, the employer having paid those sums into the bank does not necessarily lead to the conclusion that the worker has no claim. In one case the Court of Cassation required a calculation for overtime proved by witnesses, a discretionary reduction, deduction of the most recent overtime payments, and an award of any balance (E.2021/11508, K.2021/15706). In that case the work rules signed by the worker stated that overtime was included in pay; the Court of Cassation still asked for the overtime beyond the hours stated in the document to be calculated.

Witness statements

A witness statement must be suitable for calculating the overtime. In one case the Court of Cassation found unsuitable for calculation a defendant's witness who said the worker's work was shown in the attendance records and that they "thought" the worker was on duty twice a month, and held that the overtime claim had not been proved by witnesses (E.2022/15913, K.2022/17689).

5. Limitation period

Under Art. 32, the limitation period for wage claims is five years. Overtime pay is treated as a wage claim within this framework.

6. What to do

• Keep records of your working hours (time cards, shift lists, correspondence, messages) and your bank statements.
• When you sign a payslip, compare the overtime accrued with the hours you actually worked, and pay attention to what any document you sign says.
• Identify colleagues who could be witnesses and the periods in which they worked with you.
• For other claims when the contract ends, see our articles on severance pay and notice pay. Mediation before filing may arise for employment claims: mediation before a lawsuit.
• If you would like your file assessed, you can book an appointment or reach us on the contact page.

This article is prepared for general information and does not replace legal advice. Every file is different, and rights can be lost if time limits are missed.