Salary, vacation, holidays and convalescence pay (8.33%) -
(ILS 2,467 (convalescence) * 8.33%) + (ILS 3,029 (vacation) * 8.33%) + (ILS 466 (holidays) * 8.33%) + (ILS 48,984.21 (basic salary) * 8.33%) = ILS 4,577.
Overtime work and weekly rest (6%) -
8,156.87 ₪ * 6% = 489.41 ₪.
Rewards component -
Salary, vacation, holidays and convalescence pay (7.5%) -
(ILS 2,467 (convalescence) * 7.5%) + (ILS 3,029 (vacation) * 7.5%) + (ILS 466 (holidays) * 7.5%) + (ILS 48,984.21 (basic salary) * 7.5%) = ILS 4,121.
Overtime work and weekly rest (7.5%) -
8,156.87 ₪ * 7.5% = 611.76 ₪.
Travel Fee (5%) -
2,162 ₪ * 5% = 108.1 ₪.
- In accordance with the aforesaid, the plaintiff was entitled to the sum of ILS 9,907.27 in respect of the compensation component and the compensation component, but in the pay slips ILS 8,000 was paid in lieu of compensation and benefits, so that a difference to be paid in the sum of ILS 1,907.27 remained.
- It should be noted that it has not escaped our notice that it was the defendant's duty to deposit some of these funds in an infiltrators' deposit. However, since we have determined that the coupons are correct, there is no reason to charge the defendant with double payment, and the amounts paid in the slip must be credited at the expense of this component. Moreover, this is an employee in the cleaning industry, so there should not have been a gap between the deposits in accordance with the expansion order in the cleaning industry and the provision requiring a deposit of 16%.
- For the avoidance of doubt, there is no entitlement to severance pay and therefore the claim for this is dismissed.
Claim for Compensation for Registration Violations
- Since we have determined that the pay slips were in order, then, the claim for compensation, for example, for the provision of fictitious pay slips, is liable to be rejected.
- As to the claim for failure to give notice to the employee - since we have determined that it has not been proven that the plaintiff received notice to the employee but we are of the opinion that it has been proven that the salary was as stated in the pay slips, we obligate the defendant to compensate the plaintiff in the sum of ILS 500 in respect of this.
Identity of the Employer and Liability of Defendant 2
- There is no dispute that the defendant is a company that provides cleaning and manpower services and that it was the plaintiffs' employer during the relevant periods, including paying them their wages and producing them pay slips.
- Moreover, there is no dispute that the defendant employed the plaintiffs with defendant 2 in cleaning as part of an engagement for the provision of outsourced cleaning services.
- With regard to defendant 2, the plaintiffs claimed in the statement of claim that she should be regarded as an employer or as a joint employer, in light of the supervision by defendant 2's managers and the use of her tools and the uniforms provided by her. Alternatively, the plaintiffs claimed that defendant 2 has responsibility as a service provider under sections 25, 26 and 28 of the Law for Increasing Enforcement of Labor Laws, 5772-2011.
- In all of the cases, with the exception of Mehri's lawsuit, certificates were submitted regarding the delivery of the statement of claim to defendant 2 (in the lawsuit of Goitum and Ayoub - a certificate of delivery was filed on November 22, 2022, and on January 22, 2023, a motion for a judgment was filed in the absence of a defense. On March 26, 2023, defendant 2 filed a motion to delete from the claim; In the claim of the Helizge, a certificate of delivery was submitted to the file dated November 22, 2022; in the claim of Habatum, a certificate of delivery was submitted on May 9, 2023).
- Defendant 2 did not file a statement of defense in any of the aforementioned cases, except for a motion to dismiss the claim against her, which she filed in the lawsuit of Ayoub and Guytom (labor dispute 4528-09-22), after a motion was filed against her for a judgment in the absence of a defense - a request in which she denied that she was the employer of Ayoub and Gautom. In the deletion application, it was claimed that they were employed through a contractor; The association took care to ensure that the contractor has a valid license to employ workers and that he pays adequate wages that include profit and full coverage of the contract workers' rights (including the special increments according to collective agreements); The association received coupons for review and examined them from time to time to ensure that wages were indeed paid lawfully; The employees had the opportunity to contact the person in charge on behalf of the association if they had complaints. Except for the aforesaid, defendant 2 did not file a statement of defense and did not appear for hearings in any of the cases or submitted summaries on its behalf.
- In their summaries, the plaintiffs argued that since defendant 2 received the statement of claim in the lawsuit of Gautom and Ayoub, but did not appear for the hearings, a judgment should be ordered against her jointly and severally with the defendant.
After considering the above, we have reached the following conclusion:
- With regard to Mehri's claim - in the absence of confirmation of delivery of the statement of claim, there is no reason to bind defendant 2 jointly and severally with the defendant, and this claim against defendant 2 - is dismissed, if only for this reason.
- With regard to the claim of Hilizaga and Battum - despite the existence of delivery certificates, no request was filed in these cases for a judgment in the absence of a defense, and even in the plaintiffs' summaries no argument was raised that a judgment should be given in the absence of a defense (but only in relation to Guittum and Ayoub). Therefore, Hilizga and Batum should be seen as having abandoned their claim against defendant 2.
- With regard to the claim of Ayoub and Giotom, who filed a motion for a judgment in the absence of a defense, and defendant 2 subsequently sought to delete it from the proceeding (but due to a fault it was not decided), we were of the opinion that the claim against defendant 2 should be accepted in part. In cases of lack of defense or appearance, the court is entitled to award relief on the basis of the law and the facts that have been proven, and it is not obligated to issue a judgment on the basis of the statement of claim alone, in accordance with the provision of section 43(a) of the Labor Court Regulations (Procedures), 5752-1991. In the present case, no sufficient factual basis was laid for the determination that defendant 2 was a direct employer or joint employer with the defendant.
- It was not proven that the engagement between her and the defendant to receive cleaning services was an inauthentic and legitimate engagement. Most (if not all) of the evidence presented to the court relates to the relationship between the plaintiffs and the defendant (the contractor) and not to the relationship between Ayoub and Gitom and defendant 2. It has not been proven that apart from supervision on the part of defendant 2, there are characteristics that indicate that she is the employer of the plaintiffs. Among other things, it was not proven that it recruited the employees, determined the wages and employment conditions and paid them wages, or gave them uniforms and work tools, or approved days of absence or arranged for a replacement in the event of an absence, nor was it proven that it decided to dismiss any of the plaintiffs as opposed to the termination of its placement, etc. Even if defendant 2 gave professional instructions of one kind or another, this is not sufficient to indicate the existence of an employment relationship. Therefore, there is no reason to obligate her as an employer or as a joint employer, even for the reasons stated above.
- However, we are of the opinion that in the absence of protection, it is liable by virtue of the law to increase enforcement of labor laws. According to Section 25(a) of this Law, the service provider is liable to the service provider for the period of time that the employee was employed to provide the service for him, if the service was provided by at least four employees, during a period of at least six months, on a regular and continuous basis. As stated in Section 26(b) of the Law, if the Client of the Service has not determined a way to deliver a notice of infringement of rights by the Contractor (the Service Provider) as stated in Section 26(a) of the Law, or does not inform the Contractor's employees in this way, he will be subject to civil liability towards the Contractor employee employed by him, even if he has not been notified of the Contractor's lawful non-payment of rights.
- In the present case, it was proven that defendant 2 employed at least four contract workers of the defendant for a period of six months, on a regular and continuous basis. It has not been proven that notice was given to defendant 2 by Ayoub or Gautom regarding the defendant's failure to pay rights lawfully. However, in the absence of evidence that defendant 2 established an effective way of delivering notices of the infringement of rights as stated in section 26(a) of the Law, then as aforesaid, it is liable by virtue of section 26(b) of the Law, even if the condition in section 25(a)(3) of the Law is not met , i.e., even in the absence of providing notice to the service provider of the violation of the plaintiffs' rights.
- There is also no evidence that defendant 2 conducted an ongoing audit to monitor the payment of the plaintiffs' rights - i.e., periodic checks by means of a payroll checker, and therefore it cannot be protected by section 27 of the Law, and in this regard the burden is placed on the shoulders of the service provider.
- Therefore, defendant 2 should be held liable by virtue of the law to increase the enforcement of labor laws in respect of the rights enumerated in the third appendix to this law and in accordance with the provisions of the extension orders as stated in sections 25(a) and 25(b) of the law in the lawsuit of Ayoub and Gutom.
- It has not escaped our notice that defendant 2 filed a motion to remove her from the proceeding in the claims of Ayoub and Gaitom and that no decision was made on those motions. However, she should have appealed the court's decision and not turned a blind eye.
- Therefore, we determine that defendant 2 will bear the defendant's liability, jointly and severally, towards the plaintiffs Ayoub and Guitom, for the following components: redemption of annual leave, overtime pay and weekly rest pay, holiday pay, in lieu of pension deposits in accordance with the expansion order in the cleaning industry (see in this regard the aforementioned in paragraphs 130-138 of the judgment in the matter of labor appeal (national) 46450-01-21 Shufersal in a tax appeal - ASMERET TEKABO BEYENE (16.1.2023) (hereinafter - the judgment in the Asmeret case); and also what was stated in the judgment regarding the Labor Appeal (National) 37690-03-22 Center for Education and Sport in Ramat Hasharon - FREWYNI TSAGU (March 16, 2023).
- As for convalescence pay - according to the ruling of the National Court, a customer may not be liable to pay convalescence pay under the Branch Extension Order (which exceeds the liability by virtue of the General Order), as long as specific regulations have not been enacted under Section 28(b) of the Law that extend this liability to industry wage components (Labor Appeal (National) 31618-12-20 Shufersal in Tax Appeal - Abraha Iamlam tesfagaber (October 18, 2023), paragraph 59 of the judgment; and as stated in paragraphs 139-141 of the judgment in the Asmeret case).
- The regulations that were enacted in the matter are in effect only as of January 1, 2024 (Section 13 of the Regulations for Increasing the Enforcement of Labor Laws (Wage Components Comprising the Value of a Work Hour and the Value of a Work Hour for a Contract Worker), 5783-2023), therefore, with regard to the convalescence pay of defendant 2, the liability of defendant 2 is only in accordance with the General Order applicable to the economy. As will be detailed below, according to this order, there are no differences for payment of convalescence pay:
With respect to Ayoub - since he has not completed a year of work - he is not entitled to convalescence pay under the general extension order - and therefore, defendant 2 is not liable to pay any difference in respect of this.