In addition, Section 28 of the Labor Court Law states that:
"Nothing in this law shall be construed as if it is intended to prevent the submission of a certain matter to arbitration; However, if the sole subject matter of the arbitration was a matter in which the court has exclusive jurisdiction, the court will have the powers of the court in arbitration and the court will have exclusive jurisdiction to hear the claim that arose in such an arbitration award."
- Based on these provisions, and in accordance with section 24(a)(1) of the Labor Court Law, the Labor Court ruled that when a dispute relates to cogent rights in the field of labor law, the Labor Court has the exclusive authority to hear them. Therefore, cogent rights that the parties may not condition or waive are matters that cannot be submitted to arbitration:
"The rule is that a dispute concerning an employee's rights under the protective laws cannot be referred to an arbitrator's decision. Section 3 of the Arbitration Law states that "an arbitration agreement is invalid in a matter that cannot serve as the subject of an agreement between the parties." The protective rights have been cogently protected by the legislature on the basis of a social policy aimed at protecting the worker, and it is clear that they should not be agreed to and granted, otherwise the employee will not be protected from pressure and exploitation, and his protection will be thwarted. Accordingly, it was ruled that disputes relating to an employee's cogent rights or even the prerequisites for entitlement to them should not be submitted to an arbitrator."
[High Court of Justice 2852/16 Children's Centers in Israel - Kiryat HaHiled Registered Association - National Labor Court [published in Nevo] (May 11, 2016); see also Sapir and High Court of Justice Dayan]
- However, it is clear that not every right that originates in the very existence of an employment relationship constitutes a cogent right that the parties are not entitled to stipulate, and in accordance with the rule in the preamble to section 28 of the Labor Court Law, we are of the opinion that Bachar should have an interpretation that gives validity to a reasoned ruling given by an arbitrator with the consent of the parties.
In particular, in our case, we accept the approach that an expansive interpretation should be adopted that gives maximum possible validity to an arbitral award given by the arbitration institutions of the sports associations, which have the required knowledge and expertise in this field [Civil Appeal Authority 2186/12 Moshe Amar vs. Maor Malikson [published in Nevo] (May 20, 2013)]. Regarding the uniqueness of the field of sports and the status of the arbitration institution in this field, see also the comprehensive judgment of the Honorable Judge (retired) Yafit Zalmanovich-Gissin in a labor dispute (Tel Aviv) 70645-11-16 Itay Greenbaum - Bnei Ramat Gan, Basketball Department [published in Nevo] (January 29, 2017)].