Labor Dispute (Nazareth) 27940-03-20 Dvir Cohen – Amud Farm Ltd. - part 11

The Honorable Judge:             Consent to Subtraction

A:       Yes" (S. 22-27, p. 18 of the protégé).

Dvir  later testified: "I have pay slips, which in the pay slips it is written that these sums are deducted in my favor and when I checked they were not deducted in my favor" (S. 11-12, p. 32 of the protégé).

202. Dvir's version is consistent with a breakdown of pension deposits (Appendix B to his affidavit), which shows that as of April 2014, the farm began transferring a sum of NIS 500 for an employee's part to the pension fund (for wages 02/2014), with the exception of a few months in which only NIS 200-300 was deposited, when other sums were previously transferred.
203. As for our decision, it appears from the evidence before us that upon Dvir's absorption into the defendant's job, it was agreed that the latter would bear the employee's share for the pension fund; this agreement was changed at the beginning of 2014, when the parties agreed that Dvir would bear the employee's share, in the sum of NIS 500, per month.  In these circumstances, we decided to charge the defendants the employee and employer portion for the period 03/2013-12/2013 only, while from 01/2014 until the end of employment,  we decided to charge the defendants the employer's portion only for pension contributions.  For the avoidance of doubt, as part of the calculations, we will examine whether the sum of NIS 500 was transferred in full to the health fund and whether or not it was transferred, and if it was not transferred in full, the defendants will be charged for the missing part that was not deposited, as will be detailed below.
204. As for the second question – whether, as of July 2016, the claimants are entitled, in accordance with the calculation they presented, to the rate of contributions in accordance with the Expansion Order (Consolidated Version) to a mandatory pension (hereinafter – the Mandatory Pension Expansion Order), and the  Expansion Order regarding the increase in pension insurance contributions in the economy from 2016 (hereinafter – the Expansion Order Regarding the Increase in Pension Contributions) [hereinafter collectively – the  Mandatory Pension Expansion Orders], since the rate of the deposits From that date, according to the aforementioned orders, was it higher than the expansion orders in the agricultural sector that apply to the employment of the plaintiffs?
205. We will preface the beginning and clarify that the plaintiffs are right, since the rate of pension contributions must be calculated in accordance with the beneficial arrangements in the pension expansion orders in the economy if they exceed the rate of deposits according to the expansion orders in the agricultural sector.  It appears that the defendants also agree with these arguments, as appears from the report on the dispersal of pension deposits, which were attached as Appendix 20 to the defendant's affidavit.
206. Moreover, in a labor appeal (national) 25181-03-19 Hachsharat HaYishuv Hotels Ltd. - Shani Ben Ami, dated 04/03/2021), the National Court clarified that the pension expansion orders in the economy constitute a "safety net" and therefore, "as a result, the employee is entitled to make deposits in respect of him every month according to the industry collective agreement or according to the pension expansion order – whichever is higher."
207. Based on the aforementioned determinations, we turn to examine the plaintiffs' claims for compensation due to the lack of a pension deposit, in accordance with the extension orders that apply to their employment and the extension orders for a mandatory pension.
208. Dvir's claim – In the statement of claim, Dvir petitioned to charge the defendants the sum of NIS 59,109 for compensation due to the lack of a  pension provision from March 2013 until the end of his employment.  In addition, Dvir petitioned for the sum of NIS 33,524.72, in respect of which it was claimed that his salary was deducted and not transferred to the pension fund  (sections 26-32).  In his affidavit, Dvir claimed that the defendants should have deposited  in the pension fund, in respect of an employer and an employee's share, the sum of NIS 76,879.61, in accordance with the salary stated in the pay slips, and that the defendants deposited only NIS 19,032, and  that he  was paid a sum of NIS 54,905 after the claim was filed.  Hence, Dvir petitioned to charge the defendants thesum of NIS 2,942.61 for part employer and part employee (paragraph 29 of the affidavit).  Dvir added that in accordance with his actual salary, which includes thesum of NIS 2,500 thatwas paid to him in cash, the  defendants should  have deposited a total of  NIS 92,599.61 for him, of which, as stated, a  sum of NIS 73,937 was paid/deposited, and therefore the defendants remained indebted to him the sum of NIS 18,662.61 for the absence of a pension provision for the part of an employee and an employer (section 30). to Dvir's affidavit).  In support of his claim, Dvir attached a calculation (Appendix E to the affidavit), and in his summaries he placed his claim for this component at the sum of NIS 37,728.72 (paragraph 46 of the summaries).
209. In their statement of defense, the defendants claimed that until 2015 they had deposited a pension into the Clal fund, and that the deposits were stopped inadvertently, but after the discovery, the defendants encountered a lack of cooperation on Dvir's part in providing details.  The defendants further claimed that an agreement was reached between the parties on the payment of net wages, and therefore the farm bore Dvir's share for pension deposits (paragraphs 64, 68, 73-75).  In his affidavit, the defendant added that until 2015, a sum of NIS 23,688 had been deposited in Clal's coffers.  According to the defendants, the termination of the deposits was made in accordance with Dvir's request and instructions, and that after the filing of the statement of defense they paid the sum of NIS 54,905 in respect of benefits (part of the employee and employer), and inbusiness restrictions of NIS 78,593, of which the sum of NIS 1,700 was in excess (paragraphs 78-86 of the defendant's affidavit).
210. As to our decision, after examining the arguments of the parties and all the evidence, including the calculation that Dvir placed before us, we reached the conclusion that Dvir's claim for compensation due to the lack of a pension provision should be dismissed, since we were persuaded that the amounts of deposits that the defendant should have deposited were deposited/paid in full, as will be detailed below.
211. The starting point is that in accordance with section 26 of the Administrative Extension Order that applies to Dvir's employment, the defendants were required to deposit 6% of his salary in respect of an employer's part and 5.5% in respect of an employee's share, until and including the month of June 2016.  As of July 2016, and in light of the beneficial arrangements and the provisions of the mandatory pension extension orders in relation to the rates of deposits, the employee's share is 5.75% and the employer's share is 6.25%, until and including December 2016.  As of January 2017, the employee's share is 6%, while  the employer's share is 6.5%, until the end of Dvir's employment.
212. For the avoidance of doubt, we note that we are aware that Dvir's fixed salary for the purpose of making the contributions was higher than the average wage in the economy (NIS 11,500), and that in accordance with the provisions of the Mandatory Pension Extension Order, the insurance obligation is up to the ceiling of the average wage in the economy [sections 6(b) and 6(c) of the said order], but since the deposits were claimed in accordance with the extension order regarding the increase in pension contributions, according to which the insured salary is "As defined in the agreement that applies to the employee, and no less than the insured salary required by the Compulsory Pension Extension Order" (section 2(a) of the aforementioned order), therefore, our calculations will be made in accordance with Dvir's salary, and not in accordance with the average wage in the economy.
213. The following is a breakdown of the calculation we made: