Labor Dispute (Nazareth) 27940-03-20 Dvir Cohen – Amud Farm Ltd. - part 10

00T:            That's the nature of the work...

0s:            You can't separate

A:       That's the nature of work, but there are rules in the country that say that working hours are like that, and I'm the one who lives there, it doesn't mean that I can't go home and sit with my kids to have lunch, what, what, I mean, I don't understand.  What is it, what is it to have separation? There are, there are work hours a day, overtime hours a day, there is something that is acceptable." (S. 36-39, p. 31, paras. 1-6, p. 32 of Prut).

184. The plaintiffs claimed that the defendants actually supervised their work, as evidenced by the correspondence attached to the plaintiffs' affidavits from which they  claim that the defendant, who lived in the center, was in contact with Dvir by telephone at all hours of the day.  In our view, the alleged supervision has no effect, in and of itself.  Because, as stated above, the question is not whether there was actual supervision of the working hours, but whether it was possible to supervise these hours.  In addition, an examination of  the aforementioned correspondence  ostensibly attests to a sporadic response and not to actual supervision.  These are short messages on specific issues such as the demand for equipment, rain, calving, the arrival of the police, etc., or the sending of photographs, the hours of which cannot be confirmed, and  it is not possible to prove that during or near the time the plaintiffs were at work, and were  not available for their personal affairs.  The Honorable Justice  Hani Ofek Gendler  discussed these difficulties in her article "Anointing – Between Work and Rest in the Digital Age", Iyunei Mishpat, 40 (2017) 5, and held that: "With regard to sending text messages or e-mails, which involve writing.  Here the evidentiary aspect is more complex.  True, it is easy to trace when they were sent, and hence it is easy to trace the frequency component, but it is more difficult to trace the effort and time invested in drafting them.  The length of the text messages or e-mails may be a metric, assuming that there is a correlation between it and the time spent in drafting, but this measure cannot be decisive, since sometimes the crafting of a short and concise message takes longer than the crafting of a long message.  Hence, it is an index or indication that gives an estimate of the magnitude of the effort invested, but not its exact scope.  If we summarize the evidentiary complexity, it is relatively easy to accurately trace their scope and frequency in relation to telephone conversations, while in relation to written messages it is easy to trace their frequency, but the time devoted to their formulation can only be estimated approximately, and not accurately." 
185. We will add that from Dvir's testimony before us, and despite the work format he described in his affidavit, according to which he had at his disposal to work 7 days a week, 13-18 hours a day, it appears that he had leisure hours at his disposal during which he flew a drone or rode a bicycle or did "other things" (paras. 23-37, p. 34 of the protégé).
186. Moreover, an examination of the location report, which counts, as mentioned, is hundreds of pages, shows that during Noam's alleged working hours – between 06:00 and 17:00 in the winter, until 19:00 in the summer and even at night; Noam was not available to work during those hours, and that he was free to take care of his affairs.  Thus, among other things, he  visited his wife in hospitals,  visited Birkat Canaan, hotels, malls, markets, Ramat Yishai, Yokneam, Zichron Yaakov and Tel Aviv, as detailed below:

• Birkat Canaan in Safed: 05/01/2019 (07:45), 11/01/2019 (16:06), 21/01/2019 (07:07) 16), 24/01/2019 (14:19), 25/01/2019 (12:34), 31/01/2019 (13:09), 11/02/2019 (10:10), 13/02/2019 (15:04), 15/02/2019 (11:17), 17/02/2019 (13:53), 24/02/2019 (10:21), 10/03/2019 (13:31), 16/05/2019 (21:12), 20/05/2019 (15:53), 21/05/2019 (08:58), 22/05/2019 (10:33).
• Hotels in Tiberias / Sea of Galilee: on 04/01/2019 in hotel (12:00 10), on 06/01/2019 (17:39), on 08/01/2019 (17:39), on 13/01/2019 (17:44), on 14/01/2019 (at 08:07), on 20/01/2019 (14:13), on 23/01/2019 (10:30), on 24/01/2019 (11:08), on 27/01/2019 (09:29), on 31/01/2019 (10:28), on 03/02/2019 (11:40), on 20/05/2019 (15:31), on 27/02/2019 (14:07).
• Rivka/Poriya Hospitals: 11/01/2019 (11:18), 10/03/2019 (17:32), 10/05/2019 (13:37), 10/05/2019 (13:37), 12/05/2019 (10:31), 23/05/2019 (07:52), 16/01/2019 (08:48-13:00), (15:26-23:25), on 17/01/2019 (09:55-11:51), on 01/02/2019 (12:20-13:20), on 07/02/2019 (09:55), on 09/02/2019 (15:25-17:25), on 10/02/2019 ( 09:42-16:00), on 13/02/2019 (16:33).
• Shefa Shuk / near the Saraya in Safed: Shefa Shuk (on 25/01/2019 at 12:10, on 25/02/2019 at 08:39, on 15/05/2019 at 09:30, on 20/05/2019 at 17:03, on 21/05/2019 at 17:01, on 22/05/2019 at 20:56, on 23/05/2019 at 18:12, on 26/05/2019 at 10:26, 12:46, on 28/05/2019 at 14:20, 20:47). Near the Saraya (on 24/02/2019 at 14:48, on 12/05/2019 at 18:18, on 24/05/2019 at 12:00).
• In addition to places such as Calanit/Capernaum Complex (on 04/01/2019 at 09:37, on 08/01/2019 at 16:51, on 10/01/2019 between 09:55-10:26, on 18/01/2019 at 12:52, on 26/01/2019 at 09:02, on 31/01/2019 at 09:55, 11:07, 17:00, on 02/02/2019 at 16:25, on 03/02/2019 at 10:06). Safed bypass road (on 04/01/2019 at 13:00 43, on 22/01/2019 at 08:44, on 03/02/2019 at 10:09, on 05/02/2019 at 12:57, on 13/05/2019 at 07:52, on 20/05/2019 at 15:53, on 23/05/2019 at 12:32), Massad (on 04/01/2019 at 10:18, on 24/01/2019 at 17:03, on 30/01/2019 at 15:12, on 02/02/2019 at 15:44, on 03/01/2019 at 09:48),  Sha'ar Ha'ir Mall in Safed (02/01/2019 at 09:20-10:50).  Kibbutz Kadarim (on 11/01/2019 at 10:00 37, on 13/01/2019 at 07:14, on 20/01/2019 at 10:06 and at 12:11, on 05/05/2019 at 14:40, on 15/05/2019 at 18:06), Bahazor Mall (on 17/05/2019 at 11:48), Migdal (on 10/01/2019 at 09:55, 21/01/2019 at 00:43 until 06:55, on 16/02/2019 at 10:22, on 18/02/2019 at 12:52), Rosh Pina/Elifelet (on 23/01/2019 between 13:03-14:48),  Kiryat Shmona (on 29/01/2019 at 16:17), road cable car at the road site (on 29/01/2019 at 08:08), Yokneam (on 14/01/2019 at 08:50, on 18/01/2019 between 15:48-18:42), Tiberias (Jordan River on 19/05/2019 between 09:46-12:29) Tel Aviv/Bat Yam (on 15/01/2019 between 11:33-18:16, on 28/02/2019 at 18:58, on 27/05/2019 between 11:1-23:02) Ramat Yishai (on 18/02/2019 at 12:56, on 30/04/2019 at 13:37), Netanya (on 18/02/2019 at 19:47), Amiad (on 27/02/2019 at 08:57), Zichron Yaakov (on 27/02/2019 at 16:58, on 30/04/2019 at 14:15).

187. To complete the picture, we note that even if we were to determine that Noam's employment is subject to the Hours of Work and Rest Law, and this is not what we determine, the aforesaid in the location reports is intended to undermine his claim for overtime pay; which, as stated, attests to many and prolonged absences  during the workday.
188. For the avoidance of doubt, the aforesaid does not prejudice our determination that between the months 01-02/2019 and 04-05/2019 Noam was not absent from his work; since the location report shows that alongside his absence during his alleged work hours, it is evident that during those months Noam was in Kibbutz Hakook where the farm is located, and as stated above, in the absence of an opinion or other evidence, it is not possible to determine that Noam was elsewhere on the kibbutz and not necessarily on the farm.
189. We clarify that Noam did indeed split his claim into two components, a sum of NIS 129,037.5 for overtime pay and a sum of NIS 60,000 for work on rest days (when it was not clarified whether it was also for work on holidays); However, Noam's entitlement to work on both days of rest and work on holidays is by virtue of the Hours of Work and Rest Law, and since we have determined that the Hours of Work and Rest Law does not apply to his employment, the law of his claim for this component as well is denied.
190. In summary, we determine that the Hours of Work and Rest Law does not apply to the employment of the plaintiffs, due to the applicability of the exception in section 30(a)(6) of the Law, and hence the claims for overtime pay are rejected.

Applicability  of Expansion Orders in the Agriculture Sector and the Rights Claimed by Virtue of Them

191. As stated, on July 29, 2021, the defendants announced their consent to the application of the "Expansion Order in the Agriculture Sector to the Defendant's Occupation".  However, the defendants did not specify which expansion orders in the agriculture sector applied to the employment of any of the plaintiffs.
192. The claim that the Extension Order in the Agriculture Sector applies to employees in the monthly-administrative rank (hereinafter – the Administrative Extension Order) applies to the employment of Dvir – the Administrative Expansion Order applies to "all employees in the monthly-administrative rank in the agricultural industries and their employers".  In accordance with Section 2 of the Administrative Expansion Order: "A division of monthly-administrative workers includes foremen of work in orchards and in the agricultural branches... Agricultural Farm Workers...", whereas a farm is defined in section 2 above as follows: "Any farm or place of work, in the branches of agriculture of all kinds, including working the land, livestock farm of all kinds...".  Moreover, in accordance with Section 2 of the Administrative Extension Order, "Employee and Monthly Administrative Clerk" includes "Holders of responsible positions appointed by the employer to the position as detailed below;" where the relevant position in Dvir's case is "the manager of an agricultural farm" – the person in charge of all the activities of the farm.
193. The parties do not disagree with regard to Dvir's status as the manager of the farm and in charge of the workers and all the activities of the farm, when according to the defendant's version Dvir was a manager and served as a "CEO" (paragraphs 7 and 18 of the defendant's affidavit).
194. In general, we determine that the administrative extension order applies to Dvir's employment,  and therefore the rights claimed by Dvir will be examined in accordance with the said order.
195. The claim that the extension order in the agriculture industry applies to Noam's employment – the extension  order in the agriculture industry  applies to "all workers in Israel in the agriculture and packaging industries, deciduous citrus and flowers, ornamental horticulturists and nurseries and their employers."  In accordance with Section 2 of this Order, a farm is defined as "any farm or place of work in the branches of agriculture of any kind, including working the land, animals of all kinds, horticulture of all kinds...".  Hence, and since we are dealing with a farm where animals are raised, the extension order in the agricultural sector applies to the relationship between the parties, even given the defendants' admission as detailed above.
196. In general, we determine that Noam's employment is subject to the extension  order in the agricultural sector, and therefore the rights claimed by Noam will be examined in accordance with the said order.

The claim for compensation for the lack  of a pension provision

197. First of all, we would like to clarify that "a claim filed in net values encapsulates a potential dispute regarding the amount of the monthly salary in gross terms. When the wages are claimed in net terms, this dispute is pushed to the cornerstone, and remains hidden in the judicial proceeding, and therefore the clarity and scope of the relief awarded is impaired" [Labor Appeal (National) 3393-02-17 Yonatan Gav - G.M.  Maayan Alfayim (07) Ltd., dated 24/06/2018 (hereinafter – the Gav case)].  Therefore, the examination  of the plaintiffs' claim will be done in accordance with the gross salary.

It was further ruled in the Gav case above that "the question of whether an agreement for the payment of net wages means that the employer will also be liable to pay the employee's share for the accompanying rights is a question of the interpretation of the parties' consent." If so, we have before us a number of questions regarding the plaintiffs, and we must first decide them, as follows.

198. The first question is whether the defendants should be obligated to make pension contributions  for the employer's share and the employee's part, taking into account the  claimants' agreement with respect to the payment of net wages? After considering and examining the arguments of the parties, the testimonies and all the material in the file, we reached the conclusion that the agreements with the plaintiffs regarding net salary were not uniform.  Let us clarify.
199. As for Noam – in our opinion, it was proven that it was agreed with Noam that the defendant would bear the share of the employee and the employer. Inhis affidavit, the defendant stated as follows: "I will further claim that no salary was deducted from the plaintiff at all, 'which was not transferred to his destination,' since the plaintiff did not contribute to the pension fund from his salary, but the company undertook and transferred the plaintiff's share from his pocket since his salary was agreed upon as a net salary, which he received in full" (paragraph 71 of the defendant's affidavit and Appendix 20 attached to it).  This admission is sufficient in order to obligate the defendant to  pay the employee's and employer's share in Noam's claim.  We are of the opinion that the main dispute and difference between the defendants' calculation and Naum's calculation  does not lie in the question of who will bear the employee's share,  but rather what  was  the gross determining salary; A dispute decided above.
200. As for Dvir, our determination is different. We are aware that in the case of Dvir as well, the defendants admitted that the farm undertook to bear the employee's share (paragraph 84 of the defendant's affidavit).  However, notwithstanding the aforesaid, we have reached the conclusion that this arrangement was changed, with the consent of the parties, during the employment period, in 2014 or at a nearby date; As Dvir admitted in his pleadings and testimony.  Let us elaborate.
201. In paragraph 8 of the statement of claim, Dvir argued, "In addition, in 2014, the defendant claimed that he had to deduct the sum of NIS 500 from the plaintiff's salary in light of pension provisions, in accordance with the aforesaid, for most of the period of his employment, the plaintiff's salary was NIS 9,500 net" (see also paragraph 18 of the affidavit). In his testimony before us, Dvir confirmed that he received his net salary as agreed, and that he agreed to deduct the sum of NIS 500 per month from his salary for the purpose of making deposits to the pension fund, and the following are the things he stated in his testimony:

"A:     The net, the net...  He deducted another 500 shekels from my net in addition to my slips that deduct money from here for social and pension, he deducted another 500 shekels from the net, he said that there is some extra that needs to be paid and he has to deduct another 500 shekels from the net.  Blind faith, you said, I don't at all, that's not the point.