31.10.2023

Prepared By : Beyza Büyükağaçcı, Esra Serin

The janitorial contract concluded between the janitor and the condominium owners is in the nature of an employment contract and is regulated by the Labour Law No. 4857. In this legal brief, the principles in the Regulation on Janitors, which regulated the rights of janitors in general, and the criteria used to determine the services provided by janitors, the scope of their work and their working hours.

1) Janitorial Contract and the Parties

The parties of the janitorial contract are the condominium owners and the janitor. The representation of the condominium owners is provided by the administrator or the board of directors.[1] If there are eight or more   single space in the main immovable, the appointment of a administrator is obligatory. In the event that the condominium owners cannot appoint a administrator or a board of directors, the Civil Court of Peace may appoint a administrator. Another issue for the janitors is who will be the party in administrative and judicial disputes that may arise about the labour law. As the administrator is the representative of the employer, although the lawsuit that the janitor may file against the employer must be filed against the condominium owner or owners, it is also possible to file the lawsuit directly against the administrator according to this power of representation which is arising from the Regulation. However, in practice, there may be cases where the condominium owners cannot be determined. In this regard, the Court of Cassation ruled that the plaintiff can file the lawsuit against the condominium owners on the date of the lawsuit.[2]

2) Scope of Janitorial Services and Working Time

a) Definition of janitorial and the overtime work

In Article 3 of the Regulation of Janitors, the definition of the janitor is made with the expression "The person who performs maintenance, protection, minor repairs of main immovable, maintenance and cleaning of common areas and furnishings, helping the market affairs of the residents, ensuring their security, lighting the heating, organising and maintaining the garden and similar services". In this respect, janitorial services are referred as intermittent work because they do not have to be performed continuously. For this reason, the overtime work of the janitors is differentiated from other workers and it is subject to specific principles. In the decisions of the Court of Cassation, it is stated that the janitors have the right to use their free time as they wish, since they are not obliged to perform their duty during the so-called intermediate rest periods, this should be taken into account when calculating overtime.

"The plaintiff worked as a janitor in the site managed by the defendant between 06.10.2005-17.11.2013. The court, by evaluating the statements of the witnesses of the parties, calculated the overtime wage by accepting that the plaintiff worked 15 hours of overtime weekly with 3 hours of rest between 07:30-20:30 hours 6 days a week. First of all, it should be noted that the janitorial services are called intermittent works and their duties do not actually last continuously, but have to be performed from time to time, and since the janitor has the opportunity to use the free time between the times when the work is done as he wishes, it is not possible to include these times in the daily working time. In this respect, while investigating and examining the overtime demands of the janitors, it is necessary to first determine the number of flats of the apartment building where the janitor works and what are the works he does in a day and how much time he will do these works and accordingly determine whether he works overtime or not, and the witness statements should be evaluated in the light of these determinations."( 22nd Civil Chamber of the Court of Cassation dated 18.04.2019, 2016/11300 E., 2019/9055 K.)

According to the decision, the janitor is obliged to prove that he has worked overtime by means of the pay slip signed by the employee, workplace records and internal correspondence and documents showing his entry and exit from the workplace, as well as witness statements and other evidence relating to the nature of the work.

b) Janitor's Working Period

The working time of the Janitors is subject to general provisions and is maximum forty-five hours per week. However, by means of a contract of employment to be concluded between the parties, the work in question may be carried out on a full-time or part-time basis. Especially in cases where the number of single spaces are small and the extensions and common areas do not require an intensive work volume, it is possible to employ the janitor for less time than the usual seven and a half hours per day and forty-five hours per week. The wage and other monetary rights of the janitor, who clearly does not work with a full-time employment contract due to the nature of the work performed, should be determined by proportioning the wage and salary of the full-time equivalent worker.[3]

3) Dwelling Allocated to the Janitor

As stated in Article 13 of the Regulation on Janitors, “It is not obligatory for the janitor to be provided with a dwelling due to his duty." However, when a dwelling is allocated for the use of the janitor, there is no tenancy relationship between the janitor and the condominium owners, but the condominium owners make the flat available to the janitor free of charge.

The Court of Cassation has stated in one of its decisions that it is against the law to charge a fee for the janitor's residence or not to pay a fee to the janitor on the grounds that a residence has been allocated to the janitor, and that the contracts concluded in this way are invalid, and that such a practice is within the scope of the prohibition of drudgery[4]. However, it is also regulated in the Regulation that whether the janitor will partially or fully participate in the water bill, electricity bill, heating costs and hot water expenses will be determined by the contract. Accordingly, the parties may freely agree on the participation or non-participation of the janitor in the aforementioned expenses.

4) Notice and Severance Pay of the Janitor

The forms and principles of the scope of services, working hours, paid weekend, national holidays, rights to paid annual leave and issues related to the janitor's dwelling are regulated by the Regulation on Janitors. In addition, as janitors are also subject to the Labour Law No. 4857, they will be able to benefit from the social rights and claims specified in the Law. Due to their status as employees, the janitors will be able to demand notice pay and severance pay when the conditions are met. However, in the event that a dwelling is is allocated to the janitor free of charge, the rental value of the allocated dwelling shall be added to the compensation wage.

Conclusion

·   Since the janitorial service differs from other jobs, it is regulated by the Regulation on Janitors in addition to the Labour Law No. 4857.

·  The janitor and the condominium owners are parties to the janitorial contract. However, the administrator or the board of directors may be determined to represent the condominium owners.

·  The janitorial services are called intermittent works and there is no obligation for the to perform continuously. For this reason, the nature of the work should be taken into account when calculating overtime,

·      Since the janitors are also subject to the Labour Law, they will be able to benefit from the social rights and claims specified in the Law.