Labor Dispute (Nazareth) 27940-03-20 Dvir Cohen – Amud Farm Ltd. - part 18

(In October 2019, they only worked for two days) 6 onwards 31 (16 days annually) 378 11,718 Antitrust Comes       32,078 Antitrust Paid 09-10/2017       3,482 Antitrust for Payment       28,596

263. In general, Dvir's claim for convalescence pay is partially accepted, so that he is entitled to the sum of NIS 28,596.
264. Noam - An examination of Noam's calculation (Appendix 9 to his affidavit) shows that there was an error in calculating the number of days to which Noam is entitled. In accordance with Section 32 of the Expansion Order in the Agriculture Sector, Noam is entitled to 7 days of convalescence per year in years 1-7 of his employment.  And taking into account the periods of his employment, Noam is entitled to a sum of NIS 10,926 for 29 days of convalescence and not 35 days of convalescence according to Noam's calculation (which is calculated in full for 2019 when he is entitled to only the proportional portion) and we will detail the calculation below.

265. In general, Noam's claim for convalescence pay is partially accepted, so that he is entitled to the sum of NIS 10,962.

Eligibility for Rights Associated with Expansion Orders in the Agriculture Sector

266. As stated, on July 29, 2021, the defendants filed a notice in which they announced their agreement to the application of the expansion order in the agriculture sector to the parties' relationship. However, both in their statements of defense and in the affidavit on their behalf,  the defendants insisted on their denial of the plaintiffs' entitlement to the rights deriving from the expansion orders, and raised an argument that the plaintiffs received a higher wage than the tariff wage set out in the expansion orders in the agricultural industry, and therefore they are not entitled to additional payments by virtue of them (  paragraphs 66 and 67 of the statements of defense, paragraphs  87-89 of the defendant's affidavit in Dvir's lawsuit, paragraphs  74-76 of the defendant's affidavit in Noam's lawsuit).  In their summaries, the plaintiffs referred to the  aforementioned defendants' claim,  and claimed that their wages were not higher than the tariff wages, given the many hours of work in which they were employed; and that the defendants' denial of the applicability of the extension orders in the agriculture sector to the relations of the parties and the raising of the claim at a later stage constitutes an admission that they were not actually paid the rights to which they are entitled.  Moreover, in their summaries, the plaintiffs referred to the pay slips of other employees that were attached to their affidavits, from which it appears that they were paid a minimum wage without any increase in wages by virtue of the expansion  orders in the agricultural sector (paragraphs 70-73 of the Dvir summaries, paragraphs 65-69 of Noam's summaries).  The plaintiffs further referred to the extension orders in the agriculture sector, according to which a total wage was defined that also includes "any other consideration that will be agreed to be included" and therefore, according to the plaintiffs, the defendants' admission of paying net wages omits the ground under the claim that this wage includes all the additions, since the calculation of the plaintiffs' wages in accordance with 182 hours of work indicates that the payments  did not include additions in accordance with the extension orders (paragraph 74 of Dvir's summaries,  Section 71 of Noam's summaries).
267. It is basic that "payment of wages at a higher rate than the wage rate in accordance with the provisions of the collective agreement does not deprive the employee of his other rights under the provisions of the collective agreement" (the Bujo case above). Moreover, and as a matter of principle, there is no impediment to including cogent rights by virtue of collective agreements and extension orders in the total salary, subject to proof of the employee's explicit consent to include these sums in his salary [National Labor Court Hearing (National Labor) 3-63/98 Gali Bublil - A.A.Z.  Legal Services in Tax Appeal (1991) 91, Labor Appeal (National) 34111-07-15 Gennady Ukrainsky - Chess Transportation and Logistics Ltd., dated 07/02/2019].
268. However, the defendants did not claim that such consent was given, even if implicitly, and this omission is sufficient to reject their claim. Moreover, in the absence of a notice of working conditions, or an employment agreement, the  burden is on the defendants to prove
     "an explicit and unequivocal consent" according to which an employee's total wage was determined, and they must meet the high standard of proof set in case law, which requires the presentation of "clear and convincing evidence" in order to prove otherwise consenting" [Labor Appeal (National) 18496-12-20 Elma HaGos - Ad - Leon Engineering, Construction and Contracting Ltd., dated January 12, 2023]  a burden that the defendants did not meet.  Let us explain.
269. The defendants did not claim in their statements of defense or in their affidavit that it was agreed with the plaintiffs that their wages would include the accompanying rights under  the expansion order in the agricultural sector.  Second, the defendants denied in general the applicability of the extension orders in the agricultural sector to the plaintiffs, and an argument regarding the plaintiffs' agreement to include these increases in their wages arose for the first time in the framework of the plaintiffs' cross-examination, who categorically denied their consent or knowledge at all of the rights to which they are entitled in accordance with the extension orders in the agricultural industry.  The following are what Dvir said in his testimony before us:

"Q:     How could it be?  Look, when you agreed on the start of the work, you were told by defendant 2 and people heard it, that according to the extension orders or something, the salary that is supposed to be paid is the minimum, which is 4,600 shekels.  Does he pay you more to cover all the things you mentioned?