21.02.2024

Authors: Özlem Gengönül, Enis Kadıoğlu, Esra Serin

In today's world, the dependency factor between an employer and employee is being loosened due to both socioeconomic demands and technological advancements. Specifically, the kinds of flexible employment arrangements that were common during the COVID-19 outbreak are spreading increasingly. Part-time work, which is one of the types of flexible working, is a type of employment that is applicable in the form of working full time on certain days of the week or working for a certain period of time on every day of the week, and side job (additional work), job sharing, flexible working time, and on-call working stand out as special types. Another common job type in the business world is freelance work, which is sometimes mistaken for part-time employment. In freelance work, an employee operates independently and is not reliant on an employer. This article will first discuss part-time employment and on-call work, which are the most prevalent kinds of part-time employment covered by the Labour Law ("Law"), and then it will assess how freelance work differs from part-time employment.

     1- Part Time Employment

Part-time work is regulated under Article 13 of the Labour Law and is a type of employment that aims to meet the needs of the employee and the employer by flexibly allocating the weekly working hours. Part-time work is defined in Article 13 of the Labour Law with the provision that "In the event that the normal weekly working hours of the employee are significantly less than the equivalent employee working with a full-time employment contract, the contract is a part-time employment contract." As it is clear from the wording of the Law, it will be possible to mention that part-time work has two main elements:

   1- The working time of the employee is significantly shorter than the working time of the employee working with a full-time employment contract,

     2-   According to Article 10 of the Law, the work performed must be continuous.

Article 63 of the Labour Law sets the general working time at a maximum of 45 hours per week. In this context, the weekly working time required for a job to be part-time work can be determined as 30 hours, which is two-thirds of the legal working time. This determination stems from Article 6 of the Regulation on Working Hours Regarding the Labour Law. Therefore, the part-time worker can be employed on certain days of the week, provided that the weekly working time of 30 hours is not exceeded.

When it comes to part-time employment, the employer's most significant duty is to provide equal treatment. A part-time worker should not be treated differently from their full-time counterpart unless there is a valid reason. In actuality, unless there is a compelling reason, the employer is not allowed to treat a part-time employee differently under Article 5 of the Labour Law. In this case, even though the workers are in part-time employment, they may still be eligible for severance and notice pay if the start and end dates of the employment contract are taken into consideration. In addition, they will enjoy the same benefits as full-time workers, such as the right to annual paid leave.

However, it is prohibited to require part-time employees to work overtime or for prolonged periods of time, as stated in Article 8 of the Regulation on Overtime Work and Working for Excessive Periods Regarding the Labour Law.

Nevertheless, there are disagreements with the Court of Cassation's rulings as well as the doctrine on weekend holidays. Though[1] the Court of Cassation has recently determined that a part-time employee is also entitled to a weekend holiday, there have also been rulings to the contrary.[2]

     1.2-  On-Call Working

These days, the necessity for flexible work has emerged in tandem with the ever-evolving socioeconomic landscape and the advancement of technological breakthroughs. In this regard, a sort of employment contract based on on-call labor as a sub-branch of part-time employment is regulated in the Labour Law and is becoming more and more commonplace every day in order to guarantee the welfare level and security of the workers.

On-Call Work is referred to in Article 14 of the Labour Law as follows: “The employment relationship which foresees the performance of work by the employee upon the emergence of the need for his services, as agreed to in the written employment contract, qualifies as a part-time employment contract based on on-call work.”

The components of the employment contract, which are based on on-call work, shall now be mentioned because the legislation's phrasing is not entirely clear. As follows:

     1.   A part-time employment contract based on an on-call work may only be signed in writing.

     2. The parties' employment contract shall be predicated on on-call labor.

    3. The working conditions that will be applied to the contract in the event that the employer calls the employee in need shall be regulated.

It should be highlighted in this context that, within the parameters of the freedom of contract, the employer and the employee are free to agree on the total number of hours the employee will work, as well as the times the employee will be called in. Article 14 of the Labour Law stipulates that in the event that the parties cannot agree on the duration of the employee's job, the weekly working time shall be assumed to have been agreed upon as twenty hours. It should be mentioned at this point that, as the on-call employment contract is a form of part-time employment contract, the weekly working time may be a maximum of 30 hours if the parties decide how long the employee will work within a time period such as a week, month, or year.

Furthermore, the employer shall call the on-call employee at least four days prior to the time the employee is scheduled to work. Nevertheless, no decision can be taken against the employee, even though the formal contract may specify otherwise. The employee is not required to complete their labor requirement if the call is not made within the allotted period.

If there is no provision regarding the daily working time in the employment contract concluded by the parties, the employer is obliged to make the employee work at least four consecutive hours a day in each call in accordance with Article 14 of the Law. It should be noted that if the employee does not work for the periods determined by the employer, he or she is entitled to wages for that period as if he or she had worked, and this provision distinguishes the employment contract based on on-call work from other employment contracts and types of work.

Lastly, deciding how much notice and severance compensation an employee may be entitled to in the event that their employment contract is terminated due to on-call work is one of the crucial concerns that needs to be brought up. The employee's service duration, or the entirety of the employment contract, should be used to determine the notice and severance compensation, not the times the employee was contacted or should have been called.

     2- Freelance Employment

As stated in the decisions of the Court of Cassation, freelance work, which literally means self-employed work, has the element of independence unlike other types of work. Therefore, an employee working for themselves can complete the task at any time and location at their own risk. They can also choose whether or not to accept an offer from the person hiring them to complete the task. This sort of work, which is growing today due to preferred services like remote work, editing, and translation, is confused by employers with on-call work, which is a form of part-time employment. The element of dependence and independence, which is a necessary component of on-call work, is absent from freelance work, and this is the primary distinction between the two types of labor. Despite being the preferred option today, this kind of work often sparks debates in practice because it's a new type of contract.

In rulings regarding such cases, the Court of Cassation has declared that the nature and characteristics of the relationship between the parties should be taken into consideration when evaluating the relationship. It should be determined whether the relationship has progressed beyond "independent work on behalf of oneself" and has taken on the status of "dependent on the employer with a labor contract."[3]

According to the Court of Cassation's established case law, a contract has an element of dependency if there are specific elements in the relationship between the employer and employee, and even flexible freelance work containing the element of dependency may qualify as part-time employment. Actually, according to the decision of the 10th Civil Chamber of Court of Cassation dated 24.05.2021, and numbered 2019/1184 E., 2021/6935 K. "the criteria for how to determine the "dependency" element are listed. Therefore, the following situations are acceptable for the element of dependency to exist:

a)   the work is performed at the workplace.

b)   the materials are provided by the employer.

c)   the worker receives instructions from the employer regarding how the work is to be done.

d)   The work is controlled by the owner or his designee.

e)   operating without funding and without a separate corporate structure.

f)     the method of the payment.

As a result of the evaluation of these issues, according to the concrete case, it will be understood whether the element of dependency exists or not, and the feature that distinguishes freelance work from other types of work can be evaluated."

Conclusion,,

    ·An employment contract in which the parties agree at the time of the contract's establishment that the employee's working hours will be significantly less than those of an employee under full-time employment, is referred to as a part-time employment contract.

   ·On-call work is a sub-type of part-time work that is regulated in writing, involves an employee performing work as needed and has a dependency component similar to other employment contracts.

     ·Freelance work does not involve the element of dependency, and the employee is not dependent on the person requesting the work to be performed. In order for freelance work, which is often confused with on-call work in practice, to be qualified as on-call work, the criteria determined by the Court of Cassation and the existence of the element of dependency must be meticulously evaluated.