INTRODUCTION
Labor law is a special branch of law that takes into account the
economic and social imbalance of power between employees and employers and
contains mandatory provisions designed to protect employees. Due to this
protective structure, freedom of contract between the parties is not absolute.
In particular, in matters directly affecting employees’ fundamental rights,
working conditions, and economic interests, the validity of employees’ prior
consent is subject to certain limitations. On the other hand, in some cases,
employees’ prior consent is recognized as legally valid, and the employment
relationship is maintained on this basis.
Under employment contracts, consent refers to the employee’s prior
agreement to a specific practice. However, due to the element of subordination
inherent in the employment relationship, it is debatable whether every instance
of employee consent is based on free will. For this reason, related applicable
regulations, doctrine, and judicial decisions carefully assess in detail the
matters in which prior consent may be given and those in which such consent is
deemed invalid.
This article examines the circumstances in which an employee may or may
not give prior consent within the framework of the Turkish Labor Law Nr. 4857,
the Turkish Code of Obligations, Constitutional principles, and the case-law of
the Court of Cassation.
I. THE CONCEPT OF CONSENT IN LABOR LAW
Consent refers to an individual’s agreement to a specific legal
transaction or practice. Under employment law, consent often denotes the
employee’s prior approval of certain actions to be carried out by the employer
within the scope of the employer’s managerial authority.
An employee’s consent may arise in various forms:
- An explicit clause under the employment contract,
- Provisions of a collective bargaining agreement,
- A subsequent written approval,
- Implied consent manifested through conduct.
However, for consent to be considered valid under employment law,
certain conditions must be satisfied:
1. The employee’s consent must not be vitiated by defects of will.
2. The consent must be clear and unambiguous.
3. It must not be contrary to mandatory provisions of law.
4. It must not result in a prior waiver of the employee’s fundamental
rights.
5. It must not infringe upon the employee’s personal rights.
Under the principle of employee protection under labor law, consent
clauses that produce adverse effects on the employee are interpreted narrowly.
II. CIRCUMSTANCES IN WHICH AN EMPLOYEE MAY GIVE PRIOR CONSENT
A. Consent Regarding Overtime Work and Work on National and Public
Holidays
Pursuant to Article 41 of the Turkish Labor Law Nr. 4857, the employee’s
consent must be obtained in order for overtime work to be performed. The
Regulation on Overtime and Excess Working Hours further provides that such
consent must be in writing.
In practice, employers often include clauses in employment contracts
stating that “the employee agrees to perform overtime work when necessary.” In
the case-law of the Court of Cassation, it is accepted that such general
consent clauses do not, by themselves, grant an unlimited right to require
overtime work. However, it is possible for the employee to give a general prior
consent in principle to overtime work at the outset of the employment
relationship.
Nevertheless, the employee may withdraw such consent at a later stage.
In addition, mandatory provisions such as:
- the annual 270-hour limit,
- payment of overtime wages,
- compliance with occupational health and safety rules, and
- the protection of mandatory rest periods
may not be derogated from by consent.
Accordingly, an employee may give prior consent to overtime work;
however, such consent does not grant the employer an unlimited authority.
A similar approach applies to work on national and public holidays.
Pursuant to Article 44 of the Turkish Labor Law Nr. 4857, an employee may be
required to work on national and public holidays only with her/his consent.
Such consent may be obtained either in advance through the employment contract
or subsequently on a separate basis.
In the case-law of the Court of Cassation, contractual clauses stating
that “the employee agrees to work on official holidays when necessary” are
generally considered valid. However, such consent produces effects only with
respect to the obligation to work; it does not eliminate the employer’s
obligation to pay national and public holiday wages.
Accordingly, an employee may give prior consent to work on national and
public holidays; however:
- The employee may not waive the right to national and public holiday
pay,
- The employee does not lose the right to additional compensation
corresponding to such work, and
- The employee may not be subjected to unlimited practices that would
entirely eliminate the right to rest.
Accordingly, prior consent included in the employment contract merely
constitutes the legal basis for performing the work; it does not eliminate the
employee’s entitlement to wages or other employment-related rights.
Pursuant to Article 41 of the Turkish Labor Law Nr. 4857, the employee’s
consent is required for the performance of overtime work. The Regulation on
Overtime and Excess Working Hours further stipulates that such consent must be
given in writing.
In practice, employers frequently include clauses in employment
contracts stating that “the employee agrees to perform overtime work when
necessary.” In the case-law of the Court of Cassation, such general consent
clauses are not considered sufficient, on their own, to grant the employer an
unlimited right to require overtime work. However, it is accepted that the
employee may, in principle, give prior consent to overtime work at the outset
of the employment relationship.
Nevertheless, the employee may withdraw such consent at a later stage.
In addition, mandatory provisions such as:
- the annual 270-hour limit,
- payment of overtime wages,
- compliance with occupational health and safety rules, and
- the protection of mandatory rest periods
may not be derogated from by consent.
Accordingly, an employee may give prior consent to overtime work;
however, such consent does not grant the employer an unlimited authority.
B. Prior Consent to the Working Time Averaging Scheme
Pursuant to Article 63 of the Labor Law, the employee’s consent is
required for the application of the working time averaging scheme. Under this
system, working hours may be increased in certain weeks and reduced in others,
while the average weekly working time is maintained.
The employee may accept the application of the working time averaging
scheme either in the employment contract or through a separate instrument.
However, the maximum daily working time limit of 11 hours may not be exceeded
in any case.
Accordingly, prior consent to the working time averaging scheme is, as a
rule, considered valid.
C. Consent to the Payment of Wages into a Bank Account
An employee may consent to the payment of wages through a bank account.
In fact, in certain workplaces, this method is mandatory under statutory
provisions. The employee’s designation of a bank account or the inclusion of a
relevant clause in the employment contract is deemed valid.
D. Consent to Electronic Monitoring and Data Processing Practices
With technological developments, employers increasingly use workplace
surveillance systems such as CCTV cameras, vehicle tracking systems, email
monitoring, and biometric data processing. In these areas, the employee’s
explicit consent plays an important role.
Pursuant to Personal Data Protection Law Nr. 6698, explicit consent may
be required in certain cases for the processing of an employee’s personal data.
Within certain limits, an employee may give consent to practices such as
fingerprint recognition systems, vehicle tracking systems, corporate email
monitoring, CCTV recording, and the processing of location data.
However, any consent given must be specific, explicit, informed, and
based on the employee’s free will. Excessive monitoring practices that severely
infringe upon the employee’s personal rights may be deemed unlawful even where
consent has been obtained.
However, both doctrine and the practice of the Personal Data Protection
Authority recognize that, due to the subordinated nature of the employment
relationship, explicit consent between employee and employer may not always be
based on free will. For this reason, it is stated that, to the extent possible,
personal data processing activities should rely on legal bases other than
explicit consent, such as statutory obligations, the performance of a contract,
or legitimate interests.
E. Non-Compete Agreement
Non-compete agreements, as set out under the Turkish Code of
Obligations, are agreements that provide that the employee shall not engage in
certain activities during the term of the employment contract or after its
termination.
An employee may give prior consent to a non-compete obligation. However,
for such consent to be valid, it must satisfy certain requirements:
- It must be made in writing,
- The employer must have a legitimate protectable interest,
- It must be limited in terms of place, time, and subject matter, and
- It must not jeopardize the employee’s economic future.
Otherwise, the court may declare the non-compete clause fully or
partially invalid.
F. Consent to Non-Material Changes in Working Conditions
Within the scope of the employer’s managerial authority, the employee
may give prior consent to some certain changes. For example, clauses may be
included in the employment contract regarding:
- reassignment to a different department,
- assignment to similar duties,
- changes of workplace within the same provincial boundaries, and
- reasonable adjustments in work organization.
However, this authority must be exercised in accordance with the
principle of good faith.
However, pursuant to Article 22 of the Labor Law Nr. 4857, substantial
changes in working conditions are subject to the employee’s written acceptance.
A distinction must be made between changes falling within the scope of the
employer’s managerial authority and those that constitute material
modifications worsening the employee’s working conditions. General consent
clauses whereby the employee purportedly agrees in advance to all future and
unspecified material changes are, in most cases, not considered valid.
III. CIRCUMSTANCES IN WHICH PRIOR EMPLOYEE CONSENT MAY NOT BE VALIDLY
GIVEN
A. Prior Waiver of Wage and Severance Entitlements
An employee’s right to wages is constitutionally protected. The employee
may not waive future wage claims in advance before they arise.
For example, provisions such as:
- a prior waiver of overtime pay,
- waiver of national and public holiday pay,
- waiver of annual leave pay,
- acceptance of remuneration below the statutory minimum wage, and
- waiver of severance and notice pay entitlements
are invalid.
Pursuant to the mandatory provisions of the Labor Law, an employee may
not waive wage-related rights in advance. Such clauses are generally regarded
as invalid in the case-law of the Court of Cassation.
B. Waiver of Occupational Health and Safety Measures
An employee may not waive occupational health and safety measures in
advance.
For example, consent provisions such as:
- agreeing not to use protective equipment,
- undertaking not to object to hazardous working conditions, and
- releasing the employer from liability in the event of a workplace
accident
are invalid.
Pursuant to the Occupational Health and Safety Law Nr. 6331, the
employer’s duty of care is mandatory in nature. The employee’s consent does not
relieve the employer of liability.
C. Consent to Interventions Seriously Infringing Personal Rights
An employee may not validly consent to practices that seriously infringe
upon their personal rights.
For example, practices such as:
- continuous audio recording,
- video surveillance of changing rooms,
- excessive monitoring of private life, and
- searches that violate human dignity
are considered unlawful.
Since personal rights are protected under the Constitution and the
Turkish Civil Code, an employee may not waive such rights without limitation.
D. Exceeding Mandatory Limits on Working Time
An employee may not validly consent to the exceeding of statutory
maximum daily or weekly working time limits.
For example, practices such as:
- consistently exceeding the 11-hour daily working time limit,
- eliminating rest periods, and
- failing to grant weekly rest days
are unlawful even if the employee’s consent has been obtained.
Working time regulations in labor law are considered to be of public
order nature.
E. Waiver of Trade Union Rights
An employee may not validly give prior binding consent to refrain from
joining a trade union or from exercising trade union rights.
Within the scope of freedom of association guaranteed by the
Constitution, provisions such as:
- a commitment not to join a trade union,
- a prior waiver of the right to strike, and
- a waiver of collective bargaining rights
are invalid.
F. Non-Waivability of the Right to Paid Annual Leave
An employee’s right to paid annual leave is a reflection of the
constitutional right to rest. Pursuant to Article 53 of Labor Law Nr. 4857, the
right to paid annual leave may not be waived. Any advance waiver by the
employee of future annual leave entitlements, or acceptance of payment in lieu
of leave, is not legally valid. The case-law of the Court of Cassation also
emphasizes the public order nature of the right to annual leave.
IV. PRIOR CONSENT IN THE CASE-LAW OF THE COURT OF CASSATION
The general tendency in the case-law of the Court of Cassation is to
interpret prior employee consent narrowly, due to the employee’s economic
dependency.
In particular, the Court of Cassation frequently regards as invalid:
- clauses constituting general terms and conditions,
- unilateral provisions favoring the employer, and
- contractual terms restricting the employee’s fundamental rights.
Decision, bearing the Basis number 2013/21489 and the Decision number 2014/5547,
of the 7th Civil Chamber of the Court of Cassation
“Where the employer reinstates the employee, the employment relationship
is deemed to have continued without interruption; therefore, no entitlement
arises to payment in lieu of unused annual leave. Any amounts previously paid
to the employee in respect of unused annual leave may also be reclaimed by the
employer. Since Article 53 of Law Nr. 4857 stipulates that the right to paid
annual leave cannot be waived, it would also be incorrect to treat previously
paid leave compensation as corresponding to unused annual leave in the event
that the employee returns to work following reinstatement.”
Decision, bearing the Basis number 2020/5440 and the Decision number 2021/2876,
of the 9th Civil Chamber of the Court of Cassation
“The defendant employer argued that, pursuant to the 15th and
16th collective bargaining agreements relied upon as grounds for
termination, an employee convicted of an infamous offence could not be
re-employed, and therefore no severance pay was due as a result of the
termination. However, it is observed that the relevant provisions of the
collective bargaining agreements concern termination and re-employment, and
that no clause stipulating the non-payment of severance pay to the employee is
included. Moreover, collective bargaining agreements cannot contain provisions
contrary to mandatory provisions of law. Only relative mandatory
provisions—i.e., rules laid down in favor of the employee—may be derogated from
through collective agreements to the extent that such derogation benefits the
employee. In this context, a provision in a collective bargaining agreement
stipulating that severance pay shall not be paid in the event of a conviction
for an offence committed outside the workplace would be contrary to mandatory
statutory provisions and therefore invalid.”
By contrast, in reasonable practices required by the organization of
work, the employee’s prior consent may be regarded as valid.
Decision, bearing the Basis number 2011/12029 and the Decision number 2013/11935,
of the 9th Civil Chamber of the Court of Cassation
“Accordingly, national and public holidays consist of 1 January, 23
April, 19 May, and 30 August, as well as the religious holidays. The Ramadan
Feast lasts three and a half days, commencing at 13:00 on the eve of the
holiday, and the Eid al-Adha lasts four and a half days, also commencing at
13:00 on the eve of the holiday. The national holiday period begins at 13:00 on
28 October and continues throughout 29 October, constituting a
one-and-a-half-day holiday. Pursuant to Article 2 of Law Nr. 2429, as amended
by Law Nr. 5892, 1 May is also recognized as a public holiday. Whether the
employee will work on national and public holidays may be determined by a
collective bargaining agreement or an employment contract.”
The Court of Cassation is observed to adopt, in particular, the
following principles:
1. the prohibition of interpretation to the detriment of the employee,
2. the principle of employee protection,
3. the supremacy of mandatory legal provisions,
4. the principle of proportionality, and
5. the principle of good faith.
For this reason; the scope, nature, and effects of consent on the
employee are assessed separately in each individual case.
A common point in the Court of Cassation’s decisions is that, due to the
employee’s economic dependency on the employer, prior consent is not regarded
as absolutely valid. In particular, the Supreme Court subjects clauses that
result in a prior waiver of the employee’s fundamental rights, as well as
contractual terms qualifying as standard terms and conditions, to strict
scrutiny.
CONCLUSION
The issue of prior employee consent is one of the areas in which the
balance between the principle of employee protection and freedom of contract in
labor law is most clearly felt. In labor law, in order to protect fundamental
rights, it is not considered permissible for employees to waive certain rights
in advance.
In particular, consent given in relation to wages, annual leave,
severance pay, occupational health and safety, and personal rights is often
regarded as invalid. By contrast, in matters concerning work organization,
prior consent given by the employee may produce legal effects, provided that it
is proportionate and reasonable.
The case-law of the Court of Cassation likewise generally adopts the
principle of interpretation in favor of the employee and subjects consents
given by employees to strict scrutiny due to their economic dependency.
In conclusion, when assessing the validity of consent clauses in
employment contracts, not only the parties’ intentions but also the mandatory
nature of labor law, the principle of employee protection, proportionality, and
the protection of fundamental rights must be taken into account collectively.
In particular, with the increasing digitalization of work, the expansion
of remote working models, and the widespread use of data processing practices,
the scope of the concept of consent in the employment relationship is gradually
broadening. For this reason, the question of whether the employee’s free will
is genuinely formed is likely to remain one of the most intensely debated
issues in both legal scholarship and judicial decisions in the coming period.
Ahmet Berke Baştuğ, Legal Intern
References:
1. Decision, bearing the Basis number 2013/21489 and the
Decision number 2014/5547, of the 7th Civil Chamber of the Court of
Cassation
2. Decision, bearing the Basis number 2020/5440 and the
Decision number 2021/2876, of the 9th Civil Chamber of the Court of
Cassation
3. Decision, bearing the Basis number 2011/12029 and the
Decision number 2013/11935, of the 9th Civil Chamber of the Court of
Cassation
