"This figure indicates that the appellants are discriminated against over other non-Jewish employees with regard to the amount of their remuneration for their work on the Sabbath. This is unacceptable discrimination between equals, between whom there is no relevant difference in the matter of entitlement to work remuneration during the weekly rest, it is unjustified, and it must be abolished."
Thus, unlike Kisselgoff in our case, the players parallel to Amos and Zubas are not paid for their work during the weekly rest, and in any case no claim of discrimination was raised by any of the players.
- However, even if we examine the agreement with the players as a "total salary" agreement, in our opinion there is an accumulation of unique circumstances that combine them cumulatively justifies not invoking section 5 of the Wages Protection Law in this exceptional and extreme case.
In the Shmueli case [18] , we discussed a case in which photographers and editors were employed for a longer working day than stipulated in the Hours of Work and Rest Law, in accordance with a collective agreement that later turned out to be the Minister's [19] approval given to him did not apply to the period preceding it (the period that is the subject of the lawsuit therein). Against this background, the lawsuit was filed, in which it was claimed that the plaintiffs were entitled to remuneration for overtime work. Their claim was rejected even though their claim was formally in line with the law, given that their working hours were regulated in a collective framework that did not materially harm their rights and the purposes of the law. President Steve Adler ruled:
"Since the purpose of the protective laws is to set minimum conditions in order to protect the employee, it does not seem to us that their purpose requires our intervention in favor of employees who have not been deprived of overtime pay."
- In our case, even if we look at the agreements with the players through the lens of "total wages" (as opposed to agreements that were aimed at compensation for the weekly rest work, as we proposed in the collective dispute A), there is a backlog of unique circumstances whose cumulative combination justifies, in this exceptional and extreme case, to give effect to the provision of the engagement agreements according to which the consideration paid includes: one, As stated in advance, the agreements were mainly intended to regulate the compensation for weekly rest work, in such a way that making a separation between the "regular wage" and the compensation for the weekly rest, even though it could have saved the claim, is artificial. Second, unlike the Kisselgoff case, Maccabi Netanya and Bnei Yehuda behave this way towards all their players (in fact, at least that's how all Premier League teams do), so that Amos and Zubas are not discriminated against or deprived; Third, there is no significance to the increase in the cost of work during the weekly rest whose purpose is to incentivize not working during the weekly rest. The contract is aimed at working on the weekly rest, the football team cannot decide that it does not play on the rest day. Moreover, presumably in the Premier League teams, as we are concerned, players of different religions usually play, and in any case the team cannot direct its games so that they do not take place on any of the Fridays and Sundays. Hence, accepting the claim will not serve the purpose of the Hours of Work and Rest Law to bring about the employee resting during the weekly rest, but will lead to a retroactive increase in the economic compensation only due to the strict implementation of the provisions of the legislation. As stated, we have not lost sight of the ruling in the Kisselgoff case, where the workers received wages that were lower than the wages of parallel workers; Fourth, the acceptance of the claim is also not required in view of the additional purpose of the law, which is a balance between work hours and leisure. In any case, the actors work for hours that are partial compared to the usual number of hours. In other words, the balance between leisure and work is achieved even without the economic mechanism of the law, and this is in view of the comprehensive regulation, both of the Association and of more general bodies within the framework of the Association's activities – both in Europe (UEFA) and in the world (FIFA), and which is directly involved, among other things, with the welfare of the players; Fifth, and although this is not a decisive reason, we are dealing with relatively strong employees who are generally accompanied by lawyers or agents who take care of maximizing the players' profits when drafting the agreements.
- For the avoidance of doubt, it should be clarified, as my colleague Justice Sigal Davidov-Motola ruled in the Kuta case[20], the ruling may allow "... The use of the principle of good faith in exceptional cases in relation to a claim for cogent rights by an employee who has already been defined as an 'employee' (...), but it is not for nothing that this case law emphasizes that it is intended for exceptional cases; This is how it was implemented in practice (...); And so it must be left to the ground, otherwise we are liable to drop the ground beneath key parts of labor law." It should be remembered that cogentism has purposes that go beyond the interests of the concrete parties[21], and therefore, as a rule, and with the exception of those most exceptional cases, the concrete parties do not have the power to deviate from it, and therefore a deviation from it can and will be done only in the most exceptional cases that do not contradict the purposes of the protective legislation in question. Recently, however, a soccer team's claim for a salary including severance pay was rejected, even though this was stipulated in the employment agreements, because the agreed total salary was not approved by the minister[22]. Yes, see the discussion below regarding salary that includes annual leave. On the issue of the alternative of payment for weekly rest work, we have reached the conclusion that the combination of the accumulation of unique circumstances characteristic of the sport of football leads to the fact that the cases before us fall within the scope of those very exceptional cases in which the cogentness of the law is withdrawn from anything that is contrary to the purposes of the law.
- 1.V. The Alternative of Rest - From the General to the Individual
- Despite the conclusion regarding the payment alternative, we will also examine the rest alternative. As stated, section 17(b) states that instead of the payment alternative set out in section 17(a)(1) of the Hours of Work and Rest Law, the employer is entitled to give the employee "at least an hour and a half of rest for each of the weekly rest hours in which he worked."
- Given that playing during the weekly rest can take several hours, the question arises whether and when the players receive that paid rest. Prima facie, it is difficult to accept the argument of the groups in this matter. For they have to point out the period of time during which the actors were given a "rest" under "work." At the same time, with glasses that are not rigid, and given that in any case the players' jobs are partial, and that they do not normally perform additional work, it follows that the same supplement to the weekly rest that was taken from them is given during the week.
- 1.VI. Weekly Rest Work Reward - Summary
- In light of the compilation, we have reached the conclusion that the teams' appeal against their obligation to pay the players – Amos and Zubas compensation for working on a weekly rest and their obligation in the regional rulings to pay such remuneration is cancelled.
- In the margins, we note that the association would do well to adjust the employment contract (the player form) in a way that also meets the formal requirements of the Hours of Work and Rest Law, in a way that will eliminate disagreements in other cases, especially in the lower leagues of the Premier League or in the case of players whose salaries are obviously lower than the wages of the players here.
- 2. Annual Vacation
- First, we note that the law rejected the argument that the payment of vacation was included in the players' salaries, in light of the provisions of section 5 of the Wage Protection Law, which stipulates the prohibition of payment of wages "that includes vacation pay, in exchange for vacation or vacation redemption, as stated in the Annual Leave Law, 5711-1951." Even if we accept that this is a unique industry, and even if we accept the argument that the teams are subject to the regulation of the association and international organizations, this does not justify a deviation from the provisions of the annual leave law, which is intended to ensure that the employee can go on vacation, "in order to accumulate strength, without losing his salary."[23] It seems that there is no dispute that these purposes apply to soccer players as well, and therefore there is no justification for deviating from the provisions of the law. Unlike the issue of weekly rest, where the application of the law will not guarantee that work will not be carried out during the weekly rest, in the case of the Annual Leave Law, the application of the law – i.e., rest against the payment of wages – will achieve the objectives of the law. It is not for nothing that the main argument of the teams was that in any case they fulfill their obligation to give the soccer players annual paid leave, and this is even beyond what is required by the annual leave law.
- As stated, the main argument made by the teams is that they fulfilled their obligation under the annual leave law, since the players actually used the paid vacation days to which they were entitled under that law.
- In the Kaplan & Levy case, [24] this court addressed the issue of the burden of proof in a claim by virtue of the Annual Leave Law, and held that in the absence of a record of the utilization of paid annual leave in accordance with the provisions of the law, the burden of proof to show that the employee was indeed paid his rights rests on the shoulders of the employer. In our case, the relevant registration obligation relates to the obligation to maintain a vacation days register in accordance with the provisions of section 26 of the Annual Leave Law. However, as was determined in the Kaplan Levy case, this is a burden of proof, and failure to maintain a vacation book does not establish an automatic relief for the employee. In other words, the employer has the option, even in the absence of proper registration, to prove that the employee was indeed paid his rights or that he took advantage of his entitlement to vacation days.
- In our case, there is no dispute that the teams did not meet the requirement of section 26 of the Annual Leave Law by not maintaining a vacation days book, so that the burden of proof rests on their shoulders to show that the players were paid the vacation pay to which they are entitled or that the players actually used their entitlement. In our opinion, the teams did indeed meet the burden of proof that rests on their shoulders, and we will clarify.
- 2.I. A busy matter
- An examination of Amos's arguments during the proceeding reveals that he made two alternative arguments that ostensibly contradict each other. The first is that his salary should be considered as seasonal wages that were technically paid over 10 months, as detailed below; The second is that the game season lasts 10 months, and therefore the utilization of vacation days should be examined over the months of August to May of the following year. It should be noted that according to these two alternatives, the result is identical, according to which during the course of his work he used all the vacation days to which he was entitled. Below we will refer to these two alternatives:
- Amos claimed that his work during the season actually began during the month of June, before the start of the season, and therefore even if he used his vacation days during the season, these days are "offset" with the days he worked but did not receive pay[25]. Insofar as we accept this argument of Amos that he did indeed work during the months of June-July, but did not claim his salary for this period, he himself recognizes that the distribution of his salary for 10 months is a technical division and his employment must be examined in the light of 12 months.
The case law has already recognized the possibility of distinguishing between payment dates that for these and other reasons have been set for certain dates, and the dates for the actual performance of the work, which is spread over a period that exceeds the period listed in the employment contract[26]. Although this is not a desirable phenomenon in light of the ambiguity it creates, it is possible.