It was further ruled that "section 30(a)(6) is concerned with occupational characteristics that create a constraint that does not allow the delineation of the work hours framework, and not where it is possible to define the work hours framework, but the parties preferred not to be precise in its definition and not to supervise its implementation" [Labor Appeal (National) 43343-02-19 Mordechai Chen - Alonei Habashan Torah Center - Northern Golan Heights, dated December 16, 2019].
Therefore, the question that we must decide is : whether the plaintiffs' work does not allow for the delineation of a work framework, as the defendants claim, and whether or not it is held, when it was held that "the question is not whether a certain employer actually had supervision over the working hours and rest of a plumonic employee; The question is whether the conditions and circumstances of the work allowed for such supervision" [Labor Appeal (National) 15546-05-11 Shimon Buskila - Maayan Aviv Highway Ltd., dated 24/02/2015 (hereinafter – the Buskila case), see also Discussion (National Labor) 2-4/Lag Avraham Ron v. Mitzpe Ramon Local Council D(1) 386 (1973)].
- As to the object of the employer's supervision, it was ruled that "...It refers to "working hours" within the meaning of the law, i.e., the hours during which the employee is available to work, including short, agreed-upon breaks given to the employee for a change of power and air and for the use of the restroom; The supervision is not concerned with the hours in which the employee actually worked" (Buskila case above).
- It was further ruled that "in general, it has been ruled that the employee's stay at home or at work is not decisive for the purpose of determining whether it is a matter of working hours. It is possible that the hours that the employee stays at his home will be considered working hours, and on the other hand, the hours that the employee stays at his place of work will not be recognized as working hours. Each case according to its circumstances. The main question is whether the employee is at the disposal of the work or at his own disposal (National Labor Court Hearing (National) 34/3-4 Yakoel-Peled, PDA 5 328 (1974) (hereinafter: the Jakoel case))" (Additional Hearing of the High Court of Justice 10007/09 Yolanda Gluten v. National Labor Court, 66(1) 518 (2013) (hereinafter – Additional Discussion Gluten).
- In the case of the High Court of Justice 1678/07 Yolanda Gluten v. Formali National Labor Court 66(3) 209 (2009), the High Court of Justice clarified that "like the exception of personal trust, the supervision exception must also be interpreted while maintaining a direct connection to the purpose of identifying certain types of work in which it is not possible or proper to fulfill the obligation to pay overtime. The lack of the possibility of supervising work usually exists in a place where the flexibility of the job and the employer's inability to monitor the hours in which work is performed create a situation in which the application of the law is impossible."
- In another hearing in Glutan, the High Court of Justice addressed the difficulty that arises when dealing with "an employee who stays at his place of work and performs various activities, and is even required to spend the night there, but is not required to carry out a wave of activity at night, except in exceptional cases, the hours of sleep will not be recognized as work hours and overtime pay will not be paid for them... However, in certain circumstances, it is possible to recognize sleep hours as working hours according to what is required of the employee during these hours, the level of alertness required of him, the frequency of sleep disturbances, etc. As for the hours of the day when the employee is completely free for his work, even if he is required to remain in the work area, it appears that these hours will not be considered work hours, but in the event that the employee can be summoned to activity during these hours, there is no unequivocal ruling."
- As for our decision, after considering the arguments of the parties, re-examining the testimonies and all the evidence in the case, and despite the difficult result that emerges from the application of the provisions of the law applicable to the plaintiffs, we have reached the conclusion that the nature of their work did not allow for supervision of their working hours, and that it was not possible to separate their actual working hours from their private time, in view of their living with their families on the farm. Our impression is that this is a dynamic work arrangement that changes according to the needs of the work, which did not allow for supervision of work hours, even by means of technologists [Labor Appeal (National) 4033-04-21 K.A. Cleanliness and an Idea in a Tax Appeal - Vitaly Yakushenko, dated 08/02/2022 (hereinafter - Cleanliness and Idea)].
- We are aware that the defendant did not record the working hours of all employees, including the plaintiffs, did not maintain an attendance clock and the attendance reports or diaries included only a record of working days and vacations (paragraph 10 of the defendants' summaries, the defendant's testimony: s. 14-18, p. 46 of the prot., testimony of Dvir: s. 25-28, p. 32, s. 11-14, p. 33 of the prot.), and that no employment agreements were presented in the framework of which it is possible to trace the parties' agreements, including the definition of their position and working hours. We are also aware that the defendants refrained from presenting a version in their pleadings and affidavits regarding the plaintiffs' working hours. Even in his testimony before us, the defendant evaded giving a clear answer as to the nature of the plaintiffs' employment, but confirmed that the work day begins at 06:00 in the summer and a little later in the winter (S. 24, p. 45 of the protégé). However, the defendant refrained from giving a clear and unequivocal answer as to the time of termination of work or the length of the work day, and his testimony in this matter was evasive and naïve, and did not leave a credible impression on us.
- Moreover, it was proven that the plaintiffs worked overtime with the knowledge and approval of the defendant, who was in constant contact with Dvir throughout the day, including Fridays and Saturdays, and that the plaintiffs' version of the matter was not undermined, taking into account that it was not investigated. The plaintiffs' version was also supported by the testimony of the defendant, who testified, "Perhaps, there were some guards..." (S. 24, p. 47 of Prut), in addition to his admission that the plaintiffs also worked on Saturdays and holidays (S. 3-5, S. 12, p. 48 of Prut).
- Notwithstanding all of the above, the question before us is whether the defendants have proven the applicability of the exception set out in section 30(a)(6) of the Hours of Work and Rest Law, and after examining, as aforesaid, the fabric of evidence in the case, and the applicable counsel, we are persuaded that the nature of their work, their working hours, their residence on the farm with their families, the determination of the framework and work arrangements that change by them, all of these lead to to the conclusion that it is not possible to separate the hours in which the plaintiffs were at the disposal of work and the private hours, and the impression is that "and these were intertwined" [the matter of cleanliness and the above idea, and also the Labor Appeal (National) 56292-10-17 Aryeh Shachar - State of Israel - Military Routine Security Coordinators, dated 25/08/2020, hereinafter - the Aryeh Shachar case].
- The difficulty in supervising the plaintiffs' work hours can be learned from the statements of Dvir and the defendant in the preliminary hearing on June 10, 2021, in which they stated the following:
"The defendant: To the court's question whether there is work in the residential area, I answer, most of the work is observation and control around the area, morning patrol along the fence, evening patrol, caring for cows that are in the area all day and scattered in another area, they need to see that everything is fine, arrange and do it, most of the time it's supervision.