Labor Dispute (Nazareth) 27940-03-20 Dvir Cohen – Amud Farm Ltd. - part 19

A:       Not explained to me

Q:       What?

A:       Not explained to me

Q:       Didn't you be told?

A:       Anonymous

Q:       Didn't they talk about it there?

A:       No, no, just not

Q:       Good

A:       No" (S. 6-18, p. 27 of the protégé).

Noam also testified that:

"As for the rights, I inquired about what my rights were in 2019 that we understood, we began to understand where it was going and what the direction was going... I didn't know my rights what was called on the edge of iodine, OK? I didn't check overtime, I didn't check what I deserve..." (Q. 20-27, p. 44 of the prot.), and later  denied that it had been agreed with him that his salary would include the rights to which he was entitled in accordance with the extension order, and thus testified:

"The Honorable Judge:          No, no, has it been agreed? That's the question, was it agreed?

A:       What was agreed upon is the amount I received in my salary, I can say that it is very low for the field in the industry, even for a junior morning."

(S. 18-20,  p. 47 of the prot.)

270. In his testimony before us, the defendant admitted that the claim that the salary actually paid exceeded the tariff wage was a statement by virtue of legal advice he received; an admission that undermines the argument raised by the defendants' counsel and for the first time in the plaintiffs' cross-examination according to which "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?" (S. 6-9, p. 27 of the Prut).  Due to the importance of the defendant's testimony, we will bring the following as it was given before us:

"No.  It is written here, as if according to my affidavit and according to the legal advice I received, that, I am reading section 78, that the salary, the tariff wage is according to the minimum wage and I paid him much more than the minimum wage.  Apparently, this is the legal advice I received from the attorney" (paras. 4-6, p. 10 of the prot., and paragraph88 of the defendant's affidavit in Dvir's lawsuit and paragraph 75 of the defendant's affidavit in Noam's lawsuit).

271. We are aware that in his affidavit in Noam's lawsuit, the defendant claimed that the total rights to which Noam is entitled by virtue of the expansion order in the agricultural sector ranges  between NIS 117-152, with his wages much higher than the tariff wage to which he was entitled.  However, we are not convinced of the correctness of this calculation, which was not detailed or proven.  In any event, andas detailed above, in the absence of the plaintiffs' agreement to include the rights to which they are entitled by virtue of the expansion orders in the agricultural sector in their total wages, there  is no relevance to such claims.
272. In summary: the defendants did not prove that it was agreed with the plaintiffs that their wages would include ancillary rights under the expansion orders in the agricultural industry. Therefore, we will turn below to examine the rights claimed by the plaintiffs by virtue of them.

Economy fees

273. Dvir's claim – in his statement of claim, affidavit and summaries, Dvir petitioned to charge the defendants the sum of NIS 18,396 for economic fees, in accordance with the administrative expansion order, and alternatively for the sum of NIS 7,900 in accordance with section 37 of the expansion order in the agricultural sector (paragraph 54 of his claim, paragraph 60 of the affidavit, paragraph  82 of his summaries).  In his summary,  Dvir claimed that the defendants did not present a shred of evidence and did not prove that he was given a credit card, in which he was paid a sum of NIS 700 for economics.  Moreover, even if the farm purchased cookies and milk for the employees every month, it is a personal right that the farm must pay Dvir.   Dvir further claimed that  in any case the defendants did not prove that the monthly amount was paid to all the employees throughout the period of employment.
274. Noam's claim – in his statement of claim, affidavit and summaries, Noam petitioned to charge the defendants the sum of NIS 5,500 in accordance with section 37 of the Expansion Order in the Agriculture Sector (paragraph 43 of his claim, paragraph  52 of his affidavit, paragraph  78 of his summaries).  In his affidavit, Noam denied that he had received a sum of NIS 700 per month for economic allowances (section 76), and attached a calculation (Appendix 11 to the calculation).  In paragraph 77 of his summaries,  Noam reiterated the same arguments of Dvir regarding the failure to prove the defendants' claims of payment of the sum of NIS 700 per month in respect of economic allowances.
275. In their statements of defense, the defendants denied the plaintiffs' entitlement to economic allowances in the absence of the application of the expansion orders in the agricultural sector to the relationship between the parties.  The defendants further argued that to the extent that it is determined that the extension orders apply, the defendant paid the plaintiffs a sum of NIS 700 per month for economic allowances, in addition to the expenses for housing and its maintenance, with the sum paid to Dvir via the farm's credit card (paragraph 89 of the statement of defense in Dvir's lawsuit, paragraph 85 of the statement of defense in Noam's lawsuit, paragraph  21 of the defendant's affidavit  in Dvir's lawsuit, and  paragraph 23 of the defendant's affidavit  in Noam's lawsuit).  Apart from a general denial in paragraph 25 of their summaries, the defendants did not claim anything.
276. As for our decision – in light of the parties' agreement on the applicability of the extension order in the agricultural sector, as a result, the parties do not disagree with respect to the plaintiffs' entitlement to economic allowances. The parties disagree on the question of whether the economic allowance was actually paid, despite the failure to report his payment in the pay slips.  In fact, the question that was placed before us and which we must decide is whether the defendants proved payment in kind for economic allowances, and whether or not they did not.  And to the extent that the answer is yes, does the payment in kind exempt the defendants from monetary payment as required by the extension orders?
277. After examining the arguments of the parties, the testimonies and all the material in the file, we reached the conclusion that the defendants did not meet the burden and did not prove the payment of economic allowances to the plaintiffs. The following are the main reasons for this.
278. In his testimony before us, the defendant reiterated the claim that all the employees, including the plaintiffs, were paid the sum of NIS 700 for economic allowances, while Dvir was paid the sum through the farm's credit card; This is in addition to the fact that the plaintiffs lived on the farm and did not bear the payment of rent and the maintenance of a section, including water and electricity (paras. 23-29, pp. 21, paras. 8-12, paras. 14-15, paras. 21-24, p. 23 of the protégé). It should be noted that in the affidavit of the defendant in Noam's lawsuit, it was claimed that an economic allowance of NIS 750 per month was paid to Noam and Dvir (section 75), a contradiction that is intended to damage the credibility of the defendant's version.  Despite this, the defendant did not know  whether this payment was reflected in pay slips (S. 31, p. 21 of the prot.), and later in his interrogation, for the first time, he  claimed that Dvir purchased food for all the employees using the credit card, with each employee being provided with a sum of NIS 700, and in the words of the defendant "he had, according to the agreement, he could buy food for each employee for NIS 700, if there were two employees.  1,400, 3 employees, 2,100.  He went, bought, now, sometimes... Sometimes he bought for 2,000, sometimes he bought for 1,500.  But there was, the agreement said that up to 700 shekels per worker he could.  In addition to that, we talked about this guy, his wife lived on the farm but she didn't work on the farm.  He was given a residence and she lived on the farm" (S. 4-9, 2, p. 22, S.  32-39, p. 21, S. 1, p. 22).
279. The defendant's version in his interrogation raises a number of questions. First, for the first time, the defendant claimed that Noam and the other employees were also paid economic allowances through the farm's credit card, a suppressed claim that was not proven at all and that the defendants could have easily proved by presenting the credit card payment details, and since they did not do so,  we conclude that the details, if presented, would have worked against them.
280. Moreover, the defendant refers in his testimony to agreements between the parties, when these agreements have not been proven at all. As stated, the defendants did not give the plaintiffs notice of the working conditions or the employment agreement, and did not prove, through any testimonies or evidence,  that the payment of economic fees was agreed upon by credit card, and certainly  did not prove in practice that they did so, as stated above.
281. We are aware that in his affidavit Dvir did not refer to the defendants' claim that he was paid the sum of NIS 700 for economic allowances every month, and did not positively deny the defendants' version (paragraph 60 of Dvir's affidavit), as was done in Noam's affidavit in which Noam positively denied receiving the said sum in respect of economic allowances (paragraph 76 of Noam's affidavit). Despite this, we preferred Dvir's version that he did not receive economic allowances, both because the defendants did not prove their claim by means of objective evidence in their possession, and because Dvir was not questioned about the economic allowances in the course of his cross-examination.  We are also aware that Noam informed us that in the first years of his employment, the farm provided a sum of several hundred shekels per week for the purchase of cookies and a cash register for all the employees (s. 14-20, p. 45 of the proclamation);  A sum that he estimated later in his interrogation to be about NIS 700 and which was paid by credit card (paras. 18-19, p. 45, paras. 38-39, p. 45 of the protégé).  Noam also testified that the farm then stopped transferring money for food to all the workers, and therefore Dvir paid, out of his own pocket, for these groceries after he felt obligated to the workers (paras. 31-34, p. 45, paras. 5-6, p.  46 of the prot.  In this context, we accept the plaintiffs' arguments in their summaries that providing cookies and coffee to all employees is not sufficient in order to fulfill their obligation to pay economic allowances in accordance with the expansion orders.    As stated, the defendants did not present evidence, including credit card details along with a detailed calculation as to the number of employees during the period relevant to the claim, and  this is sufficient to bring about the rejection of their claims.  More than necessary, we will clarify that the expansion orders in the agricultural sector or their appendices do not contain any provision that exempts the farm from paying the economic fees by providing an economy in kind, such as the cookies and coffee that the workers received, as claimed, in the first years of the plaintiffs' employment, and therefore the defendants' claims are also rejected for this reason.

From here, we turn to examine the amount due to each plaintiff for economic allowances.

282. As for Dvir , Appendix A to the Administrative Extension Order subordinates the employee's entitlement to economic allowances to his rank; Thus, an employee in grades 3-4 will receive a total of NIS 103 and an employee in grades 5-6 will receive a total of NIS 170, and a worker in grades 7 onwards is entitled to a sum of NIS 219, all monthly. It was also determined: "Employees of the 7th grade and above whose job involves mobility will receive an economy allowance of NIS 357 per month.  The aforementioned economic allowance includes the allowance to which the employee is entitled when he travels to a place outside the workplace in accordance with the per diem rules."
283. Dvir did not present a calculation and did not clarify how the sum claimed by him is consistent with the provisions of the administrative extension order that apply to his employment. Moreover, Dvir did not relate at all to the rank and did not claim anything in this context, and thus did not meet the burden of proving the amount claimed by him.  It has not escaped our notice that as part of his claim to the study fund, Dvir made a calculation according to level 7.  Despite this, we do not accept his argument that has not been proven as required and we will clarify.
284. In accordance with Section 9(a) of the Administrative Extension Order, a permanent employee "who has passed the probationary period will be determined and will be entitled from the date he enters the job to a rank in accordance with the rating table in his position at work. He will also be entitled to full social rights, whether provided by the insurance fund or the pension fund or both, and whether granted directly by the employer." 
285. Appendix D to the Administrative Expansion Order relates to the levels of the standard and their determination. We were persuaded that Dvir does not meet the definition of foreman in accordance with the Administrative Extension Order, since "a foreman is an employee with professional training, who has been given administrative and instructional positions under the guise of a supervisor of workers."  It has not been claimed or proven that Dvir has any professional training, and therefore his rank  is supposed to be derived by virtue of being an agricultural farm manager and not a foreman.  Therefore, "standard grades for foremen and supervisors in orchards" are not relevant to Dvir's case, and  this is sufficient to reject his claim of entitlement to standard 7.
286. Therefore, and in circumstances in which Dvir's standard grade has not been proven, we set the standard level at the lowest level of 3-4. Hence, Dvir's  entitlement to economic allowances in accordance with these levels is  NIS 103 per month, and in antitrust measures NIS 8,137 (79 months – from 03/2013-09/2019).
287. In general, Dvir's claim for economic allowances is partially accepted, so we determine that he is entitled to the sum of NIS 8,137 in respect of economic allowances.
288. As for Noam, Section 37 of the Expansion Order in the Agriculture Sector states: "An employee with a daily wage and a permanent employee with a monthly salary will receive economic allowances as stated in Appendix B."  Appendix B states: "A monthly employee will receive NIS 100.00" for economic allowances.  Taking into account the period of Noam's actual employment, 44 months (not taking into account the month of 03/2019 in which he did not work and the month of October 2019 during which he worked only two days), Noam is entitled to the sum of NIS 4,400 in respect of economic allowances.
289. In general, Noam's claim for economic allowances is partially accepted, so we determine that he is entitled to a sum of NIS 4,400 in respect of economic allowances.

Addition and seniority

290. Dvir's claim – in his statement of claim, Dvir filed his claim for an additional seniority in the amount of NIS 39,685.6, in  accordance with section 21 of the administrative extension order (section 41).  In his affidavit,  Dvir placed his claim at NIS 43,701.6, or  alternatively in the amount of NIS 32,439 (paragraphs 45-47 of the statement of claim).  Dvir supported his arguments with a calculation that was attached as Appendix H to his affidavit.  In his summaries,  he petitioned to charge the defendants the sum of NIS 39,685.6, or alternatively in the sum of NIS 32,439, in the absence of the presentation  of a counter-calculation on behalf of the defendants (paragraphs 77-78 of the summaries).
291. Noam's claim – In his statement of claim, affidavit and summaries, Noam filed his claim for an additional seniority of NIS 1,890, in accordance with section 21 of the Agriculture Extension Order (paragraph 38 of his claim, paragraph  46 of his affidavit, paragraph  75 of his summaries).  Noam supported his claim with a calculation that he made and attached as Appendix H to his affidavit.
292. In their statements of defense, affidavits and summaries, the defendants denied the plaintiffs' entitlement to a seniority supplement on the grounds that the plaintiffs received a salary higher than the tariff wage that includes the seniority supplement (paragraph 82 of the defense class in the Dvir lawsuit, paragraph 80 of the statement of defense in Noam's lawsuit, paragraph 88 of the defendant's affidavit in Dvir's lawsuit, paragraphs  76-77 of the defendant's affidavit  in Noam's lawsuit,  paragraph 25 of the summaries).
293. As to our decision – taking into account our above determination that the plaintiffs are entitled to rights by virtue of the extension orders in the agricultural sector in addition to the wages paid to them, and in circumstances in which the defendants do not have a claim on the merits of entitlement to a seniority increase, we have decided to accept the plaintiffs' claim for a seniority increase.
294. Dvir - According to Appendix A to the Administrative Extension Order, Dvir's entitlement to a seniority supplement from the first year of his employment, when it comes to a percentage increase varies according to seniority. In circumstances in which Dvir's calculation was made in accordance with the provisions of the Administrative Extension Order and in accordance with his determining salary (in the years 2013-2015 in accordance with pay slips and in 2016-2019 in accordance with a determining salary of NIS 11,500), and in the absence of a counter-calculation on behalf of the defendants who did not even refer to or pointed out an error in Dvir's calculation,  we accept the calculation, sothat we award Dvir the sum of NIS 39,685 for additional seniority.  As claimed in the statement of claim.
295. Noam - Section 21(a) of the Expansion Order in the Agriculture Sector states that "every permanent and seasonal employee will receive a seniority supplement to his total salary in accordance with Appendix B."  In accordance with Appendix B, Noam is entitled to a sum of NIS 17.5 per month from the second year of his employment, a sum of NIS 35 per month from the third year, and a sum of NIS 52 per month from the fourth year.  After reviewing Noam's calculation, and taking into account his first period of employment, and in the absence of a counter-calculation, the calculation is accepted, so that we determine that Noam is entitled to the sum of NIS 1,890 for additional seniority.
296. In summary, the plaintiffs' claim for additional seniority is accepted, so we determine that Dvir is entitled to the sum of NIS 39,685, and Noam is entitled to the sum of NIS 1,890.

Annual Grant

297. This is a component that was claimed by Noam alone.  In his statement of claim, affidavit and summaries, Noam filed his claim for an annual grant of NIS 16,540, in accordance with section 36 of   the Agriculture Expansion Order (paragraph 42 of the statement of claim, paragraph  51 of the affidavit, paragraph  76 of its summaries).  To his affidavit, Noam attached a calculation (Appendix J).
298. In the statement of defense, the defendants claimed that Noam was not entitled to an annual grant since he received a higher salary than the tariff salary, which included an increase in respect of an annual grant (section 84).  In the defendant's affidavit, it was claimed for the first time that from April 2013 until the end of his employment, the defendant paid Noam the sum of NIS 30,195 for convalescence pay and an annual grant in the amount of half of his salary, in addition to the  sum of NIS 6,000 paid to him on November 14, 2019 (and the sum of NIS 7,000 paid to Dvir) after the termination of their employment, so that business restrictions were paid to Noam for convalescence and an annual grant of NIS 36,195 (sections 79-83).  In their summaries,  the defendants argued that if the court determines that the expansion orders in the agricultural sector apply, they are repeating  what was stated in their statements of defense (section 20) and not their affidavits.  If so, it is implied that the defendants abandoned the claim regarding payments to Noam for convalescence and an annual grant.  The defendants further claim that Noam is not entitled to an annual grant for 2019 because he did not work for a full year.
299. As for our decision, after reviewing the parties' arguments, the testimonies and all the evidence, we decided to accept Noam's claim. As detailed below: The defendants' claim that they paid the sum of NIS 36,195 for convalescence pay and an annual grant to Noam was not proven at all.  The defendants also did not present any reference to the alleged payment on November 14, 2019, and hence the claim is rejected  .  We also saw the rejection of the defendants' claim that Noam is not entitled to an annual grant for 2019 at all since he did not work all year, since the language of the extension order does not condition the entitlement on the completion of the employment year.
300. Section 36 of the Expansion Order in the Agriculture Sector states: "A monthly permanent employee shall receive an annual grant as stated in Appendix B", in accordance with Appendix B, "A monthly permanent employee shall receive an annual grant at the rate of half of the salary that will be paid to him in two equal parts, during the year". After reviewing Noam's calculation, we decided not to adopt it.  First, Noam made the calculation for an annual grant for the years 2016-2019 in accordance with a salary of NIS 6,900, a calculation that is inconsistent with our determination that his salary should be made in accordance with the increase from the pay slips throughout the period of his employment.  In addition, the calculation for 2019 does not reflect the relative share to which he is entitled, taking into account the date of termination of his employment.  Therefore, and according to the calculation we made below, Noam is entitled to a sum of NIS 12,100 for an annual grant.