Can the Extra work Pay of the Employee Be Included in the Monthly Wage?

According to Labor Code No.4857, the weekly working time cannot exceed 45 hours.  Although this is the rule, for reasons such as the nature of the work or increasing production, workers can also work beyond this period. This is called extra work. The employment contract specifies a working time of fewer than 45 hours per week, while work that exceeds this period is also considered overtime. Overtime periods are paid with a 50% increase in wages.

Adding the phrase “the employee’s overtime pay is included in the monthly wage” to the employment contracts makes it possible to avoid paying wages for overtime periods. It’s been wondered whether it is possible to put such a clause in the employment contract and not pay the employee a separate fee for their extra work. The Supreme Court has clarified this issue with its decisions.  We are reviewing the mentioned issue in this bulletin in the light of recent Supreme Court decisions and sharing it with you.

1.    Remuneration in Employment Contracts

18th article of Constitution prohibits the employment of workers without remuneration. Wage is one of the main elements of employement contracts. The employer must pay wages in exchange for the employee fulfilling his obligation to do work.

The wage payable to the employee is determined by labor contracts or according to the minimum wage tariff. In employment contracts, the parties can freely decide how much they will be paid, taking into account such elements as the nature of the work to be done, and working hours. However, the State imposes certain restrictions on wages and working hours for the protection of the worker. For example, thanks to the application of the subsistence wage, workers cannot be employed at a salary below this limit. In the same way, the maximum length of time that employees can be employed is regulated in the Labor Code, and a limit has been placed on the maximum working time of employees.

2.    What is Extra Work (Overtime)?

For reasons such as the nature of the work performed or increasing production, it is one of the realities of working life that workers are employed for longer than the working time set out in the employment contract or the weekly 45-hour period set out in the Labor Code. This is called the extra work of the worker or overtime work.  If the employee works more than the normal working time, they must be paid a 50% increase in wages for the period of overwork.

Determining the extra work, rest periods must also be considered by 68th Article of Law No. 4857.

3.    How is the Overtime Pay Calculated?

The wage to be given for each overworked hour is paid by increasing the amount of the normal working wage per hour by half. For example, if the employee’s normal working hour is 50 TL, the overtime pay should be paid as 75 TL per hour.

4.    Obtaining the Employee’s Approval for Further Work

To get overwork and overtime work, the worker’s written consent must be obtained. This approval is not considered overwork and overtime for mandatory reasons or extraordinary circumstances.

The employer can obtain this approval for extra work during the conclusion of the employment contract or when the need for overwork arises. The written consent given by the employee must be stored in the employee’s file.

Approval given by the employee who does not want to work too much or work for too long can be taken back provided that they notify the employer in writing thirty days in advance.

5.    How to Prove Extra work?

In a lawsuit filed by an employee requesting an overwork fee, the employee must prove that he has done extra work. How to make a proof depends on the presence of the employee’s signed payroll. The payroll that bears the employee’s signature is the definitive evidence until proven fake.  So, unless the forgery of the payroll is asserted proven, extra work credit in the signed payroll is assumed to be paid.

Extra Work can also be proven with;

  • Signed payroll,
  • workplace records,
  • documents showing entry and exit to the workplace,
  • workplace internal correspondence.

However, in case extra work cannot be proven with such written documents

  • it must be worked up to with witnesses that parties made listen to.

 In addition, some typical cases known to everyone can also be considered at this point. According to the nature and intensity of the worker’s work,  whether there is extra work should be investigated.[1]

If extra work is calculated based on witness statements instead of written evidence, the employee’s regular shift is continuously performed in the same way since he can’t do extra work, there will inevitably be days when he cannot work as indicated for reasons such as illness, excuse, leave, in which case a reasonable discount based on the presumption should be given.[2]

In the concrete case, since the tachograph records submitted to the file do not contain all the studies, it is not an accurate means of proving whether there are work time exceeding 45 hours per week. On the other hand, even if it does not exceed 45 hours per week, it is also possible to exceed the legal upper limit of 11 hours per day since it will be considered extra work; it is understood that the daily legal period has also been exceeded in the tachograph records for some days.

Plaintiff witnesses and defendant witnesses also gave statements explaining their daily and weekly working hours. A conclusion should be reached by evaluating the witness statements of the court in terms of 45 hours of weekly work, and even if 45 hours of weekly work cannot be determined from these narratives, a conclusion should be reached by evaluating the tachograph records in terms of studies exceeding 11 hours per day, even if a result cannot be determined.
Wage payrolls have been submitted to the file by the employer and although all have extra work accrual, some of them is unsigned. The calculation should not include signed and accrued payroll periods by the principles described above.   However, for payroll periods with accrument but not a signature, it is necessary to calculate according to witness statements and tachograph records. The payments specified in the payroll should be deducted from the extra work credit that is determined in the end.
It should also be noted that although it has been stated in the employment contract concluded between the parties that extra work up to 3 hours is included in the wage since this provision of the agreement in the application of our apartment is limited to 270 hours (22.5 hours per month, 5.2 hours per week) a year; first, 5.2 hours per week should be deducted from the working time which will be calculated according to the principles above, and then when it is necessary to conclude by determining the amounts of payments in the payrolls from the amounts determined..”[3]


6.    Can the Statement that the Employee’s Overtime Pay Is Included in His Monthly Wage Be Agreed in the Employment Contracts?

By the principle of contractual freedom in our law, an employee and an employer can decide that the overtime pay is included in the monthly wage in the employment contract. This determination can be made when signing the employment contract or with the matters added to the contract later. There is no prohibition on this issue. However, to prevent this situation from being abused by employers, some limitations have been imposed by the case law of the Supreme Court.

According to the stable decisions of the Supreme Court, the fact that the article written in the contract, in which the employee’s overtime pay is included in his monthly wage, can be considered valid depends on the following conditions;

  • The total working time of the worker does not exceed 270 hours per month; for work exceeding 270 hours, the employee must be paid an overtime wage.
  • The employee’s written approval of overtime pay is included in his monthly wage
  • Determining that the monthly wage of the worker is significantly more than the minimum wage
  • The fee determined according to the nature of the work done is clearly not disproportionate, that is, the fee is less than the fee that must be received in accordance with the work done. The existence of these conditions is evaluated by the Supreme Court in every concrete case. A decision is made based on the specifics of each event and its different circumstances.

Below we give examples of decisions of the Supreme Court on this issue;

In labor contracts, the rules that monthly wage includes extra work credit should be given value limitedly.   Our department accepts provisions that are limited to 270 hours valid. In case it is predicted that extra work credit is included in the monthly wage and appropriate payment is made according to that, 270 hours of extra work time must be excluded from proven extra work. Since it is accepted that some of the extra work times are included in the wage that is paid every month, 22.5 hours that is determined by dividing 270 hours by 12 months must be decreased from extra work time proven for each month.

In the concrete case, the plaintiff worked as a store manager at the defendant’s workplace and allegedly worked overtime continuously during the working period; he requested that the working receivable be settled and the expert report based on the judgment of the court, contained in the file 2011/5. and the month is 2014/3. according to the signed work schedules between the months, it is calculated that he will receive extra work credit for the work exceeding 45 hours per week. However, the employment contract dated dec1.01.2012 between the parties is entitled “General Terms of the Contract” II. Part 1. in the article,  it is indicated that extra work credits are also included in the fixed payment, employee cannot make a demand under the name of the extra work payment. 

According to the case law of the Supreme Court, in situations where extra work credit is included in the monthly wage, payment can be demanded for the work that exceeds 270 hours.  For this reason, according to the regulation in the plaintiff’s employment contract, with the admission that working over 270 hours is included in the wage, overtime payment must be calculated for the work that exceeds 270 hours annually.[4]


The issue of the article on whether the excess work fee written in the employment contracts is included in the monthly wage is considered valid is often the subject of litigation between employees and employers. In its case law developed on this issue, the Supreme Court states that the terms of such contracts may be valid in the presence of specific conditions and to a limited extent. In other words, it cannot be said that this condition applies unconditionally just because the parties have signed it.  This approach is based on the principle of labor protection.

You can request legal assistance from our expert team members regarding your legal problems arising from employment law.

Best Regards

Solmaz Law and Consulting Office


Dr., AKTAY, Nizamettin/ARICI, Kadir/SENYEN/KAPLAN, E. Tuncay, 2013, Labor Law, Gazi Bookstore, p.252-257.

9th Supreme Court Department of Law, 2020/4770 E., 2021/2722 K., 28.01.2021,

The Supreme Court of Cassation, HGK, dated 06.12.2017 2015/9-2698 E.-2017/1557 K.
9th Supreme Court Department of Law, 2016/10818 E., 2019/22127 K., 11.12.2019.

9th Supreme Court Department of Law, 2016/35135 E., 2020/17944 K., 09.12.2020.

[1] 9th Supreme Court Department of Law, 2020/4770 E., 2021/2722 K., 28.01.2021,

[2] The Supreme Court of Cassation, HGK, dated 06.12.2017 2015/9-2698 E.-2017/1557 K.

[3] 9th Supreme Court Department of Law, 2016/10818 E., 2019/22127 K., 11.12.2019.

[4]9th Supreme Court Department of Law, 2016/35135 E., 2020/17944 K., 09.12.2020.