On the basis of this provision, the Labor Courts ruled that 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 Daycare in Israel - Kiryat HaKid Registered Association v. National Labor Court (published in Nevo, May 11, 2016); see also Labor Appeal (National Labor) 791/05 Doron Katz v. Roy Sapir (published in Nevo, May 4, 2006); High Court of Justice 289/79 Dr. Lily Dayan v. National Labor Court, 34(3) 820 (1979)]
- However, 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 (as is implied by the Applicant's arguments). As detailed at the outset, the court will prefer an interpretation that gives maximum validity to the arbitrator's ruling. Accordingly, the applicant's arguments must be carefully examined, and a distinction must be made between distinct cogent rights as interpreted by law, and other rights that did not receive the same status, even though they derive from the very employment relationship between the parties.
In our case, the appendix - even though it was born out of and for the purpose of the employment relationship between the Applicant and the Respondent - is a clear contractual matter, which is closely related to the unique nature of the world of sports. The payments deriving from it do not constitute rights under a protective law, but rather contractual rights. The right body with the appropriate expertise to examine the question of the validity of the appendix and the applicant's entitlement to the payments prescribed therein is the arbitration institution of the Association. The same applies to the applicant's eligibility for a stay grant and payment for league points.
- We are therefore left with the Applicant's arguments regarding unmade deposits to the pension fund, and withholding of wages due to a disciplinary fine imposed on him, when both the right to pension deposits and the right to wages are cogent rights by virtue of the protective labor law, and are prima facie outside the scope of the arbitrator's authority.
However, even with regard to these arguments, we found that the arbitrator's decision should not be interfered with.
- The rule is that in special circumstances, the court may rule that the arbitration award should be left in place, even though the arbitrator ruled in the absence of authority. As held in Civil Appeal 4710/00 Herzl Goshen v. Givat Haviva Seminary, 55 (2) 426 (2001):
"The principle that arbitration is not a recognized framework for discussing rights derived from 'protective laws' is not a rigid rule, and special circumstances justify deviating from it. First, a party's failure to claim the lack of arbitrator's jurisdiction during the arbitration and the raising of the claim of lack of jurisdiction only after an arbitral award has been rendered will usually be detrimental to him and thwart his attempt to annul the award (Civil Appeal 816/88 Ma'ale Yosef Regional Council v. Tisra Ltd., at p. Civil Appeal Authority 300/89 and Kav Building and Earthworks Company in Tax Appeal v. Eilat Beach Development Company Ltd., at p. 516). Second, in arbitration matters, the argument of lack of authority of the arbitrator that arises in the framework of a motion to annul a judgment will be examined against the background of the question of whether leaving the award in place, despite the lack of authority, is liable to cause a miscarriage of justice to any of the parties. In this spirit, section 26(a) of the Arbitration Law states: "The court may reject a request for annulment notwithstanding the existence of one of the grounds stated in section 24, if it is of the opinion that no miscarriage of justice has been caused."