The Counterplaintiff's Arguments
- Avi's employment agreement stipulates that he works in a position of trust and is therefore excluded from the Hours of Work and Rest Law, and therefore he is not entitled to payment for overtime pay. However, my father's role was not a position of trust, in view of his position in the company (salesman and later sales manager). His salary was the salary of a junior employee, and the fact is that he did not have the authority to 'close' transactions that required Tsafrir's approval. My father's exclusion from the Hours of Work and Rest Law was done in a manner inconsistent with the provisions of the law, and the company had to pay my father for the performance of overtime.
- As a sales manager, Avi worked "around the clock", but was not paid for it. My father made phone calls, was sent to surgery to teach about the accessories that were marketed, worked on the computer, and handled emails at all hours of the day and night, including weekends and holidays. In light of the aforesaid, and since my father did not sign an attendance clock and there were no hours reports at all in the company, according to Jewish law, my father is entitled to 60 additional hours per month. Avi petitions for payment for his last 7 years of work based on an average monthly salary of ILS 18,008 and a total of ILS 616,392.
The Counter-Defendants' Arguments
- My father's job was that of a manager, who sometimes started his work day late, sometimes traveled from his residence to customers, and there was no time tracking procedure that was irrelevant, since he was measured on performance and not on work time, whether he worked or not. Therefore, his demand to receive payment for working hours is to be rejected.
Discussion and Decision
- In accordance with case law, the burden of proof of the existence of the exception in the Hours of Work and Rest Law is on the employer. In addition, it was determined that the exceptions to the law should be interpreted narrowly, so that fewer workers will be excluded from its application, and more workers will benefit from the protection granted by the law Labor Appeal (National) 61148-08-16 S. Vehicle Operating Centers in Tax Appeals - Gabriel Attias (June 5, 2018); Labor Appeal (National) 26020-01-19 Bein Harim Tourism Services in Tax Appeal - Menachem Dagan (January 15, 2020).
- The main characteristics of management functions that will be excluded from the provisions of the law are those positions that relate to the senior management layer that is identified with the status of the "employer", i.e., it is not a junior or middle level in the hierarchy, but rather a senior manager whose role in the organization requires working long hours. In addition, an employee has the authority to set a policy, which has been given broad powers that show that his role is essentially a management role, as he is involved in the formulation of the company's policy while exercising independent judgment. In addition, employees in senior management positions are highly compensated and enjoy special and high accompanying conditions. Another characteristic of the position that should be recognized as a management position is the nature of the position and its status in the organization, which requires that the employer be available at unusual hours and work outside of a fixed working hours (see Criminal Appeal (National) 16/08 State of Israel - Ministry of Industry, Industry, and Industry, Best Buy Marketing Chains in a Tax Appeal (January 4, 2009)).
- There is no dispute that Avi began his career in the ranks of the counter-defendant as a salesman and then was promoted to the management of the sales department. We are also of the opinion that as part of the management of the department to which he was entrusted, he was dominant, and even during the Corona period, and at the request of Tsafrir, initiated the relationship with Iris Marketing for the purpose of executing sales transactions of Corona products. Amir testified in this matter that Avi was in a senior position, but that the transactions passed his approval and that of Tsafrir, i.e., he had no independent discretion in setting policy or closing deals without Tsafrir's approval (p. 6 of the minutes of July 11, 2024, paras. 32-37).
Later in his testimony, he reiterated that the idea to market Corona products was my father's, and his testimony revealed the following: