As summer, a traditionally a vacation season for employees, is approaching and personnel management departments are under pressure of allocating annual leave fairly and doing it in a way to ensure the continuity of business and production; we thought it is time to draw your attention to the points to considered on planning paid annual leave which may also be called "vacation."
In Turkey, the provisions as regard to paid annual leave are included between Articles 53 and 62 of Labor Law, No. 4857, and relevant procedures and principles are set out by the Regulation on Paid Annual Leave.
WHO DECIDES WHO IS TAKING VACATION AND WHEN?
First of all, for workplaces employing more than 100 employees it is obligatory to constitute an “Annual Leave Committee,” comprised of representatives of employers and authorized for planning paid annual leave. And in the workplaces employing less than 100 employees planning may be made by employers or employers’ representatives or persons authorized by them.
Planning may vary according to sector, the way work performed, but in any case it cannot be in contradiction with the above mentioned Law and Regulation.
Written requests for entitled paid annual leave should be submitted to the employer at least one month prior to the date at which employee wish to start his/her paid leave. The request should contain; the employee's name, surname and registration number, if any; the dates between which employee wishes to take his/her leave; and whether employee will take or not an unpaid leave to cover the round-trip travel time.
Employer is not bounded with the start and end dates of the leave demanded by employee, and may determine different dates by taking into account the continuity and regularity of operations in general, order of precedence as regard to seniority, or the special issues pertaining to employer's workplace. But that does not mean employee cannot take his/her paid annual leave in the relevant year.
HOW TO CALCULATE THE LENGTH OF SERVICE?
In the computation of the length of service required to qualify for paid annual leave, the periods during which the employee has been employed in one or more workplaces of the same employer shall be considered jointly. However, any length of time spent by an employee in a workplace covered by this Act plus any length of time previously spent by the same employee in a workplace belonging to the same employer but not covered by this Act shall also be considered.
If within the one-year period the employee’s work is interrupted for reasons other than those specified in Article 55 (Periods considered worked as regard to paid annual leave), the expiry date of the one year of service period which must have elapsed for entitlement to annual leave with pay shall be shifted to the following year of service by adding additional time to compensate for the outstanding gaps caused by interruptions.
The length of the “one-year service” which must elapse for the employee’s entitlement to his upcoming paid annual leave shall commence from the day on which his entitlement to his previous annual leave became effective, to be computed towards the following year according to the subsection above and the provisions of Article 55.
The employee shall take his/her paid annual leave computed for each year of service in line with the above explanations and Article 55 within the following year of employment.
HOW MANY DAYS OF ANNUAL PAID LEAVE SHOULD BE GIVEN IN A YEAR?
All employees who have worked for at least one year including the probation period are entitled to paid annual leave; and leave periods, which is determined according to employee's length of service, may not be shorter than the durations herein below:
Length of Service Minimum Leave Period
1 to 5 years (included) 14 working days
5 to 15 years 20 working days
15 years (included) or longer 26 working days
- Paid annual leave may not be less than 20 days for employees under the age of 18 or over the age of 50.
- In addition, employees are also allowed to take up to 4 (four) days' leave without pay, on the condition that the employee provides documentary evidence that s/he is spending his/her annual leave at a place other than where the work place is located.
- Other kinds of leave, with or without pay, granted by the employer during the year or taken by the employee as convalescent or sick leave shall not be deducted from annual leave.
- Employees engaged in seasonal or other occupations which, owing to their nature, last less than one year are not entitled to paid annual leave.
- Employees’ paid leave entitlements and the leaves taken should be recorded and the documents in respect to leaves must be signed with both employee and employer.
ARE NATIONAL HOLIDAYS, WEEKLY REST DAYS AND PUBLIC HOLIDAYS INCLUDED IN PAID ANNUAL LEAVE?
National holidays, weekly rest days and public holidays that coincide with the duration of paid annual leave may not be included in the annual leave period.
As an example, an employee starting his/her 7 days vacation on Monday should get back to work on next Tuesday (instead of next Monday), as the Sunday, being a weekly rest day, is not considered within the paid annual leave period and one day is added to vacation. Practice is likewise for the other official public holidays.
IS SATURDAY A WORK DAY? MUST SUNDAY BE WEEKLY REST DAY? HOW DO THESE AFFECT THE PAID ANNUAL EAVE?
First of all, in Labor Law 4857 there is no provision stipulating that Sunday should be given as a weekly rest day. However, Sunday is assigned as weekend by the Weekend Act No. 394, with some exceptions. According to Article 1, 4, 5 and 6 of said Law, in the workplaces that allowed to work on Sunday exceptionally, any day within the 7 days time period may be given to employees as a weekly rest day.
As there is no explicit provision as regard to Saturday both in the Labor Law No. 4857 and Weekend Act No. 394, Saturday is deemed as a work day. If it is a workplace practice to allow Saturday as a rest day, employer may take into account the Saturdays in the computation of the length of service required to qualify for paid annual leave; but if the employer decides otherwise that does not consist a contradiction to any relevant Law.
HOW TO PAY THE REMUNERATION FOR ANNUAL LEAVE?
According to Article 57 of Labor Law, employee's wage, pertaining to the period of annual leave, should be paid in advance or by raising an advance payment prior to commencement of the leave.
The annual leave remuneration of employees who are not paid daily, monthly or weekly but who are remunerated according to an indefinite period of time or amount of money, such as a piece-rate, commission, profit sharing or percentage, must be calculated on their average daily earnings by dividing the total wages earned during the previous year by the number of days actually worked during that year.
If the employee has been granted a raise in pay within the previous year, the annual leave remuneration shall be computed by dividing the total wages earned between the date of the month in which the employee uses his leave and the date when his pay was raised by the number of days worked within that period.
For employees working on a percentage basis, remuneration for annual leave must be paid by the employer in addition to any amount of money derived from current percentage earnings.
Wages for weekly rest days, national and public holidays which coincide with annual leave shall be paid in addition to the annual leave pay.
In calculation of remuneration for annual leave, provision of Article 50 shall also be applied, which is;
"The following payments shall not be considered for the purpose of calculating payments in respect of national or public holidays or weekly rest days: overtime and incentive premiums, the wages paid to permanent employees when they are employed outside normal working hours in preparatory, complementary or cleaning operations; and fringe benefits."
CAN EMPLOYEES WAIVE THEIR RIGHTS OF VACATION OR WORK DURING THE ANNUAL LEAVE?
An employee neither can waive his right of vacation nor can s/he engage in gainful employment during this period. Otherwise they may be asked by their employer to reimburse the annual leave remuneration paid in advance.
IS IT POSSIBLE TO DIVIDE THE PAID ANNUAL LEAVE?
As a rule, the leave must be granted without interruption and it cannot be divided by the employer. However, leave periods may, by mutual consent, be divided into a maximum of three parts, provided that one of the segments shall not be less than 10 days.
WHAT IS THE RESPONSIBILITIES OF PRIMARY EMPLOYER AND SUBCONTRACTOR?
In case of a subcontracted employee continuing to work in the same workplace even though his/her subcontractor has changed, the periods worked in this same workplace should be taken into account in computation of annual leave duration and the length of service required to qualify for paid annual leave. The primary employer are supposed to check whether the subcontracted employees has or has not taken their deserved paid annual leave and to ensure that the said leaves has been taken; and subcontractor is obliged to submit a copy of annual leave roster, stipulated in paragraph six, to the primary employer.