From the general to the individual
- We will conclude by saying that after examining the arguments of the parties, we are of the opinion that the arbitration award should be upheld, and the motion to annul it should be rejected.
- In the matter at hand, the arbitrator was faced with the question of payment of the applicant's salary in accordance with his employment contract, which he claimed was not paid to him, while the group's argument on the other hand was that part of the salary was paid in cash and part was not paid due to receipt of injury pay from the National Insurance Institute.
- The applicant's entitlement to the salary, which was agreed upon in the employment agreement, was not in dispute, but rather its actual payment. This matter is a right in civil law and therefore is not in an area that cannot be agreed upon between the parties or submitted to arbitration.
In the High Court of Justice Dayan, to which the group referred, it was held as a declarant (emphases are not in the original - H.T.):
Can the employee's right to wages serve as the subject of an agreement between the employer and the employee, and can the dispute be referred to arbitration? In this regard, the National Court held in its decision that is the subject of this petition that "there is no doubt that the right to wages itself is a right in civil law, and as such it is subject to arbitration" (see also 32/3-36 "Hasna" Israeli Insurance Company in a Tax Appeal v. Avraham Peltzner, PDA 4 267).
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We therefore assume, following the National Labor Court, that the dispute in itself regarding the entitlement to wages may serve as the subject of an agreement between the parties and even an arbitration between them. However, the question of entitlement to wages is a prerequisite for the employee's right to wage withholding compensation. Doesn't this fact change the conclusion of the National Labor Court?
As we have seen, in order to answer this question, it is necessary to examine whether an agreement between the employee and the employer regarding the employee's right to wages is capable of failing the legislative trend underlying the Wages Protection Law, it seems to me that the answer to this last question is in the negative. The law is intended to ensure timely payment of wages due to the employee. The law does not take any position on the question of whether the employee is entitled to wages or not, and there is nothing to prevent the parties from agreeing on this matter. Just as the right to remuneration itself is in the contract between the parties, so there is nothing to prevent the parties from reaching another agreement on this matter. The purpose of the Wage Protection Law is to enforce the employee's right to wages in such a way that wages will be paid on time. The main thing is the right to remuneration, whereas Helena is only a means to achieve this goal. The laws of withholding wages begin only where the laws of entitlement to wages itself end. In these circumstances, I see no reason why the parties cannot reach an agreement between them regarding the right to remuneration, and what may serve as the subject of an agreement between the parties may even serve as a subject of arbitration between them.