Class Action (Nazareth) 53201-10-20 Mary Nicole Meir – Clalit Health Services - part 2

Gallbladder      115 ₪    60 ₪        FESS                         90 ₪      60 ₪

Prostate              115 ₪    60 ₪        Orthoscopy              100 ₪    50 ₪

Hip Fixation Fracture   115 ₪      60 ₪                            Inguinal hernia        60 ₪   40 ₪

Heart Bypass   350 ₪    281 ₪      Caesarea                    80 ₪      30 ₪

Lung resection 225 ₪    80 ₪        Bariatrics                   150 ₪    70 ₪

Chest                  225 ₪    80 ₪        Family Appeal Reunification Links       150 ₪ 70 ₪

8. Due to these discrepancies in the rates set for the janitor and the auxiliary worker for the operations of the Supply Compensation Unit, the motion to certify the class action before us was filed.

The Sequence of Proceedings

9. The affair began with a motion to certify a class action filed with the Haifa Regional Court (class action 28675-01-18), where the plaintiff claimed that the auxiliary workers in the operating room in the emergency room in the Emergency Preparedness Shifts perform the same work as the nurses, and therefore they are entitled to equal compensation for the surgeries.

The request for approval was rejected on the grounds that it was not the same work.  The Applicant appealed the decision and as part of the appeal proceedings it was agreed that the motion to certify the class action was deleted and the Regional Judgment was cancelled (Labor Appeal 22481-01-20) [published in Nevo].

10. On October 26, 2020, the Applicant filed an additional motion to certify a class action, in parallel with the filing of a personal lawsuit, to this Court. In the application, it is claimed that auxiliary workers perform the same or equivalent work as the nursing staff.  In the framework of the application, the class class was defined as including all the employees in the auxiliary force group in the operating rooms who performed the operation after the regular work shift hours.
11. On January 13, 2021, the Respondent filed a motion for summary dismissal due to lack of local authority. The motion argues, inter alia, that according to the definition of the group, it does not include the auxiliary force employees at HaEmek Hospital (which is the only hospital in the jurisdiction of the court), who are not assigned to the operations of the Reserve Corps after the end of the shift, but rather perform the tasks relating to these surgeries as part of the regular shift.  The Respondent further argued that only eight hospitals conduct operations and that most of the auxiliary force workers who work in a format similar to that of the Applicant are employed in the central region, and therefore for this reason as well, the Tribunal did not have local jurisdiction.
12. On January 24, 2021, a decision was made according to which the Respondent will submit in relation to those eight hospitals the pay slips of the employees of the Auxiliary Power Group who receive compensation for the operation of the Reserve Corps, in relation to the last quarter of 2020. The coupons were submitted on February 8, 2021.
13. On February 11, 2021, a preliminary hearing was held, in which the Applicant confirmed that the procedure was taking place only in relation to hospitals with operating rooms. In the same hearing, the question of defining the group was discussed, inter alia, and the Applicant requested a stay in order to consider her steps.  On February 25, 2021, the Applicant requested that the application be amended, so that the definition of the group would include all the auxiliary force employees who performed the work of the Reserve Corps, whether the work was done during or after the shift.  After receiving the respondent's position, the application was granted.  On March 11, 2021, the Respondent submitted additional coupons that were omitted from its previous notice on the matter.  On March 24, 2021, an amended motion to certify a class action was filed.  On July 22, 2021, it was decided that the court had local jurisdiction to hear the claim and the motion for approval.
14. On September 27, 2021, the Respondent submitted a response to the motion for approval. On October 26, 2021, the Israel Women's Caucus submitted a request to submit a position on the case.  On October 28, 2021, another hearing was held, and in between, the parties submitted their position regarding the appointment of an occupational analysis expert already at the preliminary stage.  In light of the disputes between the parties regarding the appointment of the expert and in view of the factual disputes in the case, a decision was made to hear the evidence.  A decision was also issued allowing the Women's Caucus to submit its position, which was submitted on February 10, 2022.
15. Evidentiary hearings were held on March 10, 2022 and June 15, 2022. We heard the testimony of the Applicant, as well as Mr. Michel Kanbura, who worked as a janitor at Carmel Hospital, and Ms. Ella Marchenko, who worked as an auxiliary worker alongside the Applicant.  On behalf of the respondent, Mrs. Merav Finkelstein, the nurse in charge of the operating room at Carmel Hospital, testified; Mrs. Sigal Sommer, Administrative Director at Carmel Hospital; Mr. Ehud Feckler, Director of Human Resources at Carmel Hospital; Ms. Marina Gendelman, Team Leader in Charge of Urological Surgery at Carmel Hospital; and Dr.  Gil Hirshhorn, Deputy Director of the Emek Medical Center.  Subsequently, the parties tried to come to terms in order to agree on the appointment of an occupational analysis expert, but were unsuccessful.  The parties submitted summaries and the case moved to a decision.

The parties' arguments in summary

16. The Applicant's arguments are as follows:
17. Auxiliary workers and nurses are included together under a group of auxiliary workers in operating rooms, and although they perform different tasks, they receive exactly the same wages during the regular shift. Both positions require a similar level of education, both positions do not require prior experience, and there is no difference in skill and talent for both positions.  Therefore, it is an equivalent job.
18. Even during the Katzat shift, the nurses continue to perform the same duties and tasks that they performed during the regular shift. It has not been proven that there is any difference between the surgeries performed on the regular shift and the operations performed on the regular shift, so there is also no difference in the actions required of the senators and the employees on the regular shift.  The Respondent's argument that the Sanitary Workers are required to perform an additional role related to the operation of anesthesia equipment in the operations of the Emergency Preparedness Unit should not be accepted, a claim that was not proven and contradicted by the witnesses.

• The respondent's description of the actions performed by the sanitaries or the time required for those operations should not be accepted, in view of contradictions in the testimonies of the respondent's witnesses, and inter alia in view of the testimony of Ms. Finkelstein, which indicates that there is not always a clear division of duties between the two positions. Therefore, it has not been proven that there is any justification for paying excess compensation to men in comparison to women during the Katzat shift. Beyond that, no evidence was presented indicating the manner in which the remuneration for the analysis of the allowance was determined.

1. The Respondent did not provide all the information and data in its possession, including the pay slips of all the employees during the period relevant to the claim and documents defining the roles and the manner in which the payment was allocated for the cut-off analyses. The power disparities between the Applicant and the Respondent are clear and significant, as the Applicant is one of the weaker group in the hospitals that does not receive class protection with regard to the wage gaps relating to the payment of the allowance.  In this situation, the burden of proof rests on the Respondent's shoulders, and the conditions for the approval of the class action must be examined on the mitigating side and from an expansive interpretation.
2. There is a uniform factual and legal question for all auxiliary workers in hospitals where there are operating rooms, since the rate per operation is uniform for all hospitals, and auxiliary workers receive a lower rate in all hospitals than auxiliary workers who perform sanitary work. In view of the power disparities, as well as in view of the occupational segregation and wage gaps, the most efficient and fair way to resolve a dispute is by using the class action mechanism.
3. The respondent's arguments are as follows:
4. These are not jobs of equal value, since the role of the sentry is binding and includes many skills, skill, effort and responsibilities that are much more significant than the role of an auxiliary force in the operating room. This conclusion is evident, among other things, from the fact that the snitter is a professional in the operating room, serves as the right hand of the doctors and nurses, assists in complex processes vis-à-vis the patient, and plays an important role in the treatment of the patient and the operating room.  The role of the senator also requires training, among other things, by the anesthesiologists.
5. Auxiliary work in a special needs shift is limited compared to regular shift work, since the workers are not required to dismantle laundry carts, prepare disinfectants, dismantle sterile supplies, and check orders with a warehouseman. In fact, there is no need to employ an auxiliary worker as part of the Labor Compensation Allowance, and this work is intended to enable the workers to increase their earnings by performing additional work.  On the other hand, the satirist on the Katzat shift is required to do additional work than the regular shift, since he also performs the work of an anesthesia technician.

• The work hours and effort of the nurses in relation to each operation are greater than those of an auxiliary worker in the operating room, as is evident from the records of the attendance of the workers at HaEmek Hospital and as indicated by the observation conducted at Carmel Hospital. The workers are required to work 7-10 minutes to clean after each surgery, while the snitter performs work that lasts at least half an hour and can last even two hours.

1. A comparison of the time required to perform the work in the Katzat shift shows that there is no gap in wages and that the Applicant's salary is higher than the salary of the janitors, since the average wage per hour of work should be examined and not the wage for each surgery. Since auxiliary workers are required for about 10 minutes per operation, as opposed to half an hour to two hours for nursing work, the worker earns a higher wage per hour, or at least there are no wage gaps in the hourly calculation.
2. It is not possible to conduct a class action by virtue of equal law in the format claimed by the Applicant, since each hospital is geographically separate, and the remuneration policy for the work of the Allowance is different from one hospital to another and is determined in each hospital independently, and therefore the Applicant's place of work for the purpose of her class action is Carmel Hospital only. There is a great deal of variation between auxiliary workers in the various hospitals, also in terms of the content of the job and the format of the work.  Therefore, there are no common questions of fact or law.
3. The payment to the auxiliary staff at Carmel Hospital was determined with the involvement of the workers' committee. In HaEmek and Kaplan hospitals, too, the payments were determined in agreement with the committees.  The rule is that these collective agreements should not be interfered with, an intervention that would undermine the totality of the agreements on this issue.  Moreover, this is a public employer in the field of health, in which there are strong and active workers' committees that are aware of workers' rights, and there is no systematic violation of rights or a problem of enforcing rights.  This is also not a weak working population.

• A class action is not the most efficient and fair way to resolve a dispute, in view of the differences between the employees and the payment mechanism in the various hospitals, and in view of the individual and complex factual clarification that will be required in relation to each and every employee in each hospital separately.

18. The Women's Caucus supports the request and argues as follows:
19. There is a pattern of employment in hospitals whereby women are hired as auxiliary force while men are hired as janitors, while creating gender barriers that constitute discrimination in violation of the Equal Employment Opportunity Law, 5748-1988, since it has been proven that there is a clear reservation about employing women in the position of senator.
20. Consistently, in all hospitals, auxiliary workers earn less than the salaries of the nurses, even though it is an equivalent job and despite the fact that during regular work hours, their wages are the same. These wage gaps are the result of a uniform policy set by the Respondent, whether explicitly or implicitly, whether in deed or omission.  Even if each hospital independently determines a different pricing of the employees' wages in the analysis of the compensation, and even if the result of the "distribution of the pie" is done in cooperation with the local committee of the hospital, this is systematic discrimination that indicates the need to clarify the claim as a class action.

• Auxiliary work is essentially similar to sanitary work at Carmel Hospital, as appears from all the evidence, and thus the applicant met the prima facie burden of proof required at this stage of the proceeding. In addition, there is a similarity in the work of auxiliary force in all hospitals, just as the work of the satirist in the operating rooms is similar in all hospitals. This is sufficient to determine that the proceeding should be heard in the framework of a class action, in view of the consistent wage gaps in the remuneration of cut-off surgeries in the vast majority of hospitals where these surgeries take place.

Discussion and Decision

19. The class action is a unique arrangement that allows the personal claims of many plaintiffs, some of whom are unknown, to be joined together into a single collective action and managed by a representative plaintiff. Section 3 of the Class Actions Law, 5766-2006 (hereinafter: the Class Actions Law), states that it is possible to file a class action in the matters specified in the Second Addendum, and in our case, in accordance with Item 8(2) of the Supplement on Cause of Cause under the Equal Pay for Male and Female Employees Law, 5756-1996 (hereinafter: the Equal Pay Law), as well as in accordance with Item 8(1) of the Supplement on Cause of Action under the Equal Employment Opportunity Law, 5748-1988 (hereinafter: the Equal Opportunities Law).
20. Section 4(a) of the Class Actions Law states that the applicant for the court's approval to file a class action must have a personal cause of action "that raises substantive questions of fact or law that are common to all members of a group of persons - on behalf of that group." Section 8 further establishes conditions that must be met in order for the court to approve the class action:

“)1) The action raises substantive questions of fact or law that are common to all the members of the class, and there is a reasonable possibility that they will be decided in the action in favor of the class.