Class Action (Nazareth) 53201-10-20 Mary Nicole Meir – Clalit Health Services - part 5

Q:         So you do it already in the morning shift?

A:         I'm doing it...  I order in the morning shift and the equipment usually arrives after 3, so I disassemble what I got from the sterile supplies, which can be pad equipment, pads, foot socks and bowl equipment, shower trays, there are all kinds of magnets...  I need to...

Q:         When you start your shift, everything is ready.

A:         When I start my shift, sometimes they ask me for something else I need...

Q:         It's unusual if after the shift starts they ask for something more, right?

A:         Is this unusual if...?

Q:         If after the start of the Ketch shift there is something else missing, right?

A:         No, this is not unusual.

58. Marchenko's testimony was consistent and orderly, and we found it credible. On the other hand, Ms. Finkelstein confirmed that she was not present in the operating rooms at all of the Katzet shifts, and therefore it was not possible to rely on her testimony that auxiliary workers did not perform any action other than cleaning the operating rooms.  Moreover, although at the beginning of her testimony Ms. Finkelstein claimed that auxiliary workers do not perform any action other than cleaning during the Katzat shift, later in the interrogation she clearly confirmed that even if the definition of the role of an auxiliary force in the Katzat shift does not include tasks other than cleaning (a definition that is written in the procedures but was not presented to us), in practice the work performed by them on the Katzat shift can also include dismantling carts of equipment for the rooms: "We're a team, when people work together, it lends a hand to each other and it lends a hand to each other, as a job definition it doesn't have to do, but we're friends and we help each other."[43] Later on, the witness also confirmed that the division of roles in the field is not clear and that the workers in the operating rooms also help each other with tasks that do not belong to them formally, and that "what is written in the job description is not always what happens in the field."[44] It should be noted that Ms. Finkelstein's testimony on this matter was inconsistent.  For example, in the framework of the re-interrogation, she claimed that "no one does other people's work, when it is defined as their job," a [45] statement that clearly contradicts her words quoted above, and even when asked about her claim that the sentry is also responsible for putting a tourniquet on the patient's arm or leg in the operating room, she confirmed that this role can also be performed by a nurse or a doctor.[46] In other words, workers on the operating room staff do perform tasks that are included in the job descriptions of other employees, including sanitaries and auxiliary workers who sometimes share in organizing equipment and supporting patients who wake up from anesthesia.  This is true in relation to the regular shift as well as in relation to the Katzat shift.
59. The Respondent's argument in its summaries that there is no real need to employ an auxiliary worker within the framework of the Reserve Allowance Allowance should not be accepted, since an auxiliary worker who performs the regular shift can clean the equipment for the operation of the Reserve Force. This argument was argued without support, such as the presentation of data regarding the workload of the workers in the regular shift and whether it is possible to combine the work of the Allowance during their work, and the argument is also inconsistent with the logic of the matter, since insofar as auxiliary work is not required in the Allowance, the cost of the wages could have been used to reward other employees or other costs of the Allowance Analysis.  In the testimony of Mr. Feckler and Dr.  Hirshhorn, it was not at all claimed that the employment of auxiliary workers was unnecessary in the operations of the Treasury Department, but we were under the impression from their statements that the distribution of the budget was made in accordance with the manpower actually required for these analyses.  Moreover, the respondent's argument that it is not possible to perform surgery without a sanitizer is also unacceptable to us.  From the observation that was presented, we learned that in one of the surgeries an instrumentation technician worked as a sanitizer, and it was not claimed that there was another technician at the time of that operation, so that in practice, when an instrumentation technician is found in the operating room, he can ostensibly perform the role of a sanitizer.  In other words, the role of the sentry is not unique in a way that another employee from the operating room staff cannot perform his duties.

Interim Summary I

60. From all that has been said so far, we have found that these are two positions that do not require prior skills and prior education, in both positions there is a central characteristic of physical effort, and both are performed in an intensive and stressful work environment. The subject of the training was not sufficiently clarified, and even if the work of the sniper requires more complex skills, it became clear from the evidence that in practice he is not required to use them frequently, and that the main work is to safely transfer patients to and from the operating room.  Both positions are also subordinate to the nurse in charge of the operating rooms and are located at the bottom of the professional hierarchy in the department.  In view of all the aforementioned characteristics, we are persuaded that there is a reasonable possibility that at the end of the hearing of the claim, it was determined that the auxiliary and sanitary works are equivalent works.
61. To all this must be added the fact that the two positions are formally classified identically as auxiliary work in the hospital's salary scale, so that sanitary workers receive the same salary for their different work during the regular shift hours. From Mr. Fickler's testimony it emerged that Carmel Hospital had allocated standards for auxiliary workers in order to fill the two positions, despite the differences between them, and that the hospital did not seek to establish a separate standard for sanitary workers.[47] In other words, the hospital decided to classify the two positions under the same standard and the same salary, even though they are positions with different characteristics, so that both positions receive the same basic salary and even the same salary increases.  This matter is important since we have found, as stated, that the work of auxiliary force workers and saneers is not substantially different in the analyses of the Reserve Corps, in terms of software.
62. The Respondent argues that the fact that nursing home workers earn the same salary cannot establish the conclusion that these are jobs of equal value. Indeed, it was held in Labor Appeal (National) 114-09 Comverse in Tax Appeal - Ben Moshe [published in Nevo] (January 27, 2010), "...It is not from the amount of salary paid to the workers that the question of whether it is "work of equal value" will be deduced.  The question of whether these are equivalent jobs for the purposes of the Equal Pay Law will be examined according to a substantive and in-depth analysis of the nature of the work." In other words, equal pay for two groups does not necessarily mean that employees are doing equal work.  However, this determination must be understood in the context of the same case, where the employer sought to expand the equality group while including managers who were paid a salary similar to the employee's salary, in order to show that within the expanded group there is justification for the gap in the allocation of options.  In that case, the National Court ruled that "a business analysis based on a comparison of employees' wage data is an analysis that does not substantially examine the question of whether it is the same job or equivalent work.  Such an analysis does not take into account the skills, effort, skill and responsibility required in each of the positions." We are also of the opinion that the analysis of occupations cannot rely solely on the manner of payment of wages or on the very fact of payment of identical wages.  As we have shown at length, we have found with the necessary probability that the two positions are equivalent work in the consideration of all the indicators mentioned in the Comverse case as well as in section 3 of the Law, and this is reinforced by the fact that the hospital also believed, in real time, that the two positions should be ranked identically in the salary rankings.  If the hospital were of the opinion that there is such a significant gap between the two occupations, as it claims today, we would expect to find expression in wages or other benefits, or at least a dialogue on the matter with the local committees or with the representative workers' union.
63. It should be remembered that at the end of the day, this is a matter of "distributing the pie," that is, the surgical budget that the hospitals receive from the Ministry of Health, and the question of whether gender considerations have seeped into the economic decisions, consciously or unconsciously. As the lobby points out in its arguments, and as emerges from the testimony of Dr.  Hirshhorn and Mr. Peckler, auxiliary workers and janitors are paid equally within the regular working hours, when the work is regulated by collective agreements.  At the end of the regular shift, when the salary is not anchored in collective agreements but rather in internal decisions of the hospitals, the work of the nurses is more economically worthwhile than the work of auxiliary workers, according to the relevant authorities in the hospitals, even though we have found that even in the analysis of the health care system, it is worth the work.  It should also be noted in this context that at Beilinson Hospital, sanitaries and auxiliary workers earn the same or similar salary for cut-off surgeries.  According to Mr. Peckler, these rates were "historically determined" and only now has the illogic and reasonableness of this become apparent.[48] We believe otherwise, and we can actually assume, as long as it is not proven otherwise later, that "historically" the hospital believed that this was a similar contribution to the course of the surgery and therefore chose to reward the two groups in a similar manner.  At this stage, the respondent chose not to present evidence or to summon witnesses regarding this hospital.
64. Some of the questions that arise regarding the determination of the value of these roles do not have a complete and definitive answer at this stage, in view of the complexity of the analysis of the occupations required with regard to the weight of the various characteristics of the roles. The parties have so far chosen not to present an opinion on their behalf in order to present a full analysis of their claims in support of their claims.  It can be assumed that if an occupational analysis expert is appointed in the advanced stages of the proceeding, it will be possible to sharpen the factual basis and the conclusions required from all the data.  We have considered whether an occupational analysis expert should be appointed at this stage, but for the purpose of such an appointment, the various disputes must be decided, such as the length of time it takes for the janitor to perform his work versus the time required to clean operating rooms, whether training is required as claimed by the respondent, whether anesthesiologists perform the work of anesthesia technicians on the shift and how often, etc.  At this preliminary stage, the determinations are only prima facie, and it is also not possible to rely on the collection of data and observations made by the expert at this stage in view of the disputes between the parties in relation to the questions detailed above.  Therefore, the appointment of an expert on the basis of prima facie determinations alone complicates the process and contradicts its essence.  We will be required to determine the factual basis on the basis of the evidence that will be presented to us in the framework of the main proceeding, and then we will consider appointing an expert in order to analyze the weight of the various elements in both positions.

Wage gaps

65. From the moment we find that senators and auxiliary workers are ostensibly performing equivalent work, the question of wage gaps must be examined. According to the Applicant, these gaps are rooted in the low remuneration determined for the auxiliary workers for each operation of the Allowance Allowance compared to the remuneration paid to the Sanitary Workers.  As was presented at the beginning of the decision, there is no dispute that the rate of a sanitary worker is higher than the rate of auxiliary force, and therefore when an auxiliary worker and a sniper are assigned to the allowance shift for the same surgery, the salary of the sanitar will necessarily be higher than the salary of the female worker.
66. The Respondent argues that even if it is determined that these are equivalent positions, there are no wage gaps, since the remuneration should not be compared on the basis of the type of surgery, but rather according to the length of time it took for the senator to work in each surgery compared to the employee. In other words, the Respondent argues that the average hourly or shift wage should be compared and not the rate for each action ("per analysis") in view of the different work format.  We are unable to accept this argument, and we will explain:
67. The respondent chose to pay the employees in the calculations of the allowance not on an hourly basis, but according to the type of surgery. The considerations underlying this decision have not been fully clarified at this stage, but we have the impression that the determination of the remuneration was made on the basis of the bargaining power of each group of employees.  The question of the duration of the work, on the face of it, was not on the agenda at the decision-making stage.  Whereas in the regular shift, the reward is determined on a unit of time (hour) basis, in the analysis of the allowance, the reward is determined by output (type of surgery).  In order to deviate from the mechanism of determining the remuneration as created by the respondent itself, weighty considerations are required that point to a clear gap in the periods of time required for the senator and an auxiliary worker for each surgery, when we recall that at this stage we found to the required degree of probability that these are ostensibly equivalent jobs and we were not persuaded that the role of the janitor requires a significantly greater investment of time than the time investment of the auxiliary worker.
68. The Respondent's argument at this stage is based mainly on the time differences claimed by it. These discrepancies have not yet been proven, and on the other hand, we have learned that during Snitter's work in each and every surgery, there are not negligible periods of time in which he is not required to perform every task.  In this sense, the 'work time' index is not necessarily the right metric for evaluating roles or wage gaps.  Moreover, on the face of it, the situation is that women are assigned to the role of auxiliary workers while men are assigned to the role of sentinel, and it cannot be ignored that it is claimed regarding the "female" role that it takes only 15 minutes per operation, while the "male" role requires a longer time of up to an hour and a half to two hours.  This means that if a shift performs a number of surgeries, the worker must perform all the tasks required for several operating rooms in order to compare her salary to the salary of a sanitary who is assigned to only one operation, and it can be assumed that the same sanitizer is on hold or a break for at least part of the time of the operation, while the worker will clean several rooms in a row.
69. To all this must be added the fact that in practice there are quite a few shifts in which only one surgery takes place. In this situation, even though the two employees are in the hospital for a similar period of time and are waiting for the end of the surgery in order to transfer the patient to recovery (Sanitary) or to clean the operating room (auxiliary worker), the worker will inevitably earn a salary significantly lower than the salary of the sanitizer for that operation.
70. The Respondent compiled a table of the data of the employees in the work shifts in the months 1-4/2021 in order to show the composition of the workers (the number of nurses and auxiliary workers), the types of surgeries, the time the patient was dropped off from the operating room, and the rate for each operation. According to the respondent, the data show that in an hourly or shift calculation, an auxiliary worker earns more than a sanitary.  The Respondent did not attach evidence indicating the correctness of the data (such as in relation to the date of completion of surgeries or full attendance records), and we found that the data is missing, especially since the table does not specify the times of the start and end of the shift, but only the time when the surgeries ended.  Even if we had accepted the respondent's assessment regarding the time periods necessary for the employees to finish the tasks after the end of each surgery, we do not have any data regarding the date of the start of work in the Katzat shift, whether at the end of the morning shift or perhaps until the beginning of the first surgery the employees were available for rest or a break.  For example, according to the table, on January 24, 2021, there were 5 operations on the Reserve Corps, to which three senators were assigned.  The senior Z.A.T.  was assigned to only one operation, which ended at 18:01 according to the table.  The Respondent does not specify when that surgery began, and therefore it cannot be assumed that the Katz shift for that sanitary officer began at 15:00 precisely.  It should be noted that the respondent's choice to present only the time of the end of the surgeries and not their beginning is puzzling, since on the face of it, she has all the data in her possession and it could have been used to understand the nature of the various roles.
71. In addition, an examination of the data raises questions about its veracity, and we will present a few examples:
72. On January 3, 2021, it was recorded in the table that three gallbladder surgeries were performed, to which Senator M.G. and Auxiliary Force Worker C.Y.  It was also recorded that the disembarkation times of the patients from the operating rooms (i.e., the date on which the surgeries ended) were 16:22, 17:42 and 18:49.  According to the respondent, it follows from these data that the snitter and the employee finished working for about 20 minutes and about 15 minutes, respectively, after the last surgery, which ended at 18:49.[49] However, from the data of the end hours of the Respondent's shift in another table, it appears that the senator and the employee signed a departure at 18:29 and 17:25, respectively.[50] These figures are clearly inconsistent, since the attendance records appear to indicate that the two employees left work even before the last analysis indicated in the table conducted by the respondent.
73. On January 10, 2021, it was recorded in the table prepared by the Respondent that the Sanitar L.N. He was assigned to two gallbladder surgeries, the first completed at 16:20 and the second at 17:49, and for these two surgeries, an MKA auxiliary worker was assigned.  On the other hand, a review of the attendance records shows that the senator signed an exit ticket at 7:11 p.m., while the employee at 4:39 p.m.  If the second surgery ended at 5:49 p.m., how did the employee finish her work about an hour earlier, when there is only one auxiliary worker assigned to each shift? Moreover, if the second surgery ended at 17:49, what were the duties of the snitter until 19:11, when according to the respondent, the snitter's work on the work shift should be assessed about 20 minutes after the end of the last surgery?

• As far as January 11, 2021, the table states that Senator M.G. was assigned to two gallbladder surgeries and that the time of the patient's last discharge was at 17:27. On the other hand, in the records of attendance hours, it is recorded that the senator signed an exit at 17:02.  Moreover, during the same shift, a heart surgery was also performed, to which the sentry was assigned and the operation ended at 20:49.  In the attendance records there is no documentation regarding this employee (although according to the respondent the records show the snitter who left the shift last), whereas in the case of the auxiliary force worker G.A., it is recorded in the table that she was assigned to all three surgeries and in the attendance records it was recorded that a ticket was stamped at the exit at 16:47.

47. In his affidavit, Mr. Feckler referred to January 24, 2021, in order to show that the salary of a K.Y. auxiliary worker was higher than the salary of the janitors in relation to that shift, according to an hourly calculation.  According to Mr. Feckler, the employee finished work at 6:16 p.m., fifteen minutes after the last surgery, which ended at 6:01 p.m.  However, according to the attendance records, the employee signed a ticket that day at 5:06 p.m.  In addition, on the same shift, three sanitators were assigned according to the table, but attendance records were presented in relation to only one of them, B.M., who signed a ticket at 18:22, even though according to the respondent, the last surgery in which he was assigned ended at 17:47.
48. These examples show a clear discrepancy between the data presented in the table prepared by the Respondent regarding the times of the analyses and the attendance records of the employees, and therefore it is not possible to rely on the data or the conclusions drawn by the Respondent from them. Many similar examples can be found and we will suffice with the following dates: February 14, 2021; 28.2.21; 22.3.21; 19 April 2021.  The Respondent argued in its summaries that the incompatibility shows that the Applicant was assigned to the surgeries for which she was paid but was not actually present, but that this conclusion was also supposed to apply to sanitizers who were allegedly assigned to the surgeries but were not present at the hospital according to the same logic, when it is not explained who fulfilled their duties.  For example, on March 31, 2021, Senator M.G.  He allegedly signed a departure at 17:47 but was scheduled for the operation, which according to the respondent ended at 19:20.
49. Moreover, the calculation of the average salary made by the respondent cannot be accepted, since it emerges from Mr. Peckler's affidavit that the calculation is based on the assumption that the full hours of the shift, from 15:00 until after the last surgery, should be calculated. This assumption is not necessarily correct, since, as stated, no data was presented to show that the CAPT surgeries began at 15:00 or that all the workers on that shift were assigned to the surgeries that began at 3:00 PM, especially in light of the fact that there are usually a number of Sanitary Workers in the Katzat shift.  In other words, since the cumulative time of all the CAPT analyses is not necessarily the actual working time of each sanitar, Mr. Feckler's calculation cannot be accepted.  We will illustrate the difficulty in the calculation made by the Respondent by using the following example: Mr. Fickler claims that on March 14, 2021, the Applicant completed her shift at 20:58 after she was assigned to nine different surgeries.  It was claimed that the Applicant was on the 5:58 hour shift, earned a total of ILS 661 and therefore her average hourly wage was ILS 110.5.  On the other hand, it was claimed that the senator Z.A.T.  finished his shift at 21:03 and therefore was on the 6:03 minute shift and received a total payment of ILS 465, i.e., ILS 76.6 per hour on average.  However, there is no data to show that the first operation in which Z.A.T.  participated on the same day began at 3:00 p.m., but only that the first operation ended at 5:09 p.m.  (the snitter participated in two surgeries on the same shift).  In view of the significant gap in the number of surgeries performed by the two employees, and in the absence of data regarding the date of the start of each operation, the respondent's calculation for that date cannot be accepted.  It should also be noted that in the table that summarizes the departure hours from the Katzat shifts, the name of Z.A.T.  does not appear at all - when the Respondent claims that the table reflects the date on which the last Snitter left the shift, and it mentions only the Snitter B.M., who according to it finished at 18:55.
50. Moreover, the respondent claims that most of the janitors end up working after auxiliary workers. For this purpose, the Respondent prepared a table that summarizes the time of signing a ticket at departure for the months 1-4/2021.  However, a random examination shows that there were errors in this table as well.  Thus, for example, on 24 February 2021, it was recorded that the employee finished at 19:02 compared to the senior who finished at 20:56 (i.e., 114 minutes later),[51] but the analysis table shows that on the same day the employee was assigned to surgeries that ended at 20:21, 20:44, and 20:29.[52]
51. On the basis of all of the above, the Respondent's calculations and the estimate made by it for the average hourly wage or shift cannot be accepted at this stage. Beyond that, we note that from the respondent's own arguments it emerges that the attempt to estimate the time required for a sniper in any type of surgery is not necessarily applicable, in view of complications that sometimes occur during surgery (as is evident from the second observation described above) or in view of the natural difference in the pace of surgeries.  Therefore, at the stage we are at now, we have been persuaded that there are gaps in the remuneration paid for the operations of auxiliary workers and senators.  This does not rule out the possibility that in the continuation of the proceedings and after clarifying the factual disputes regarding the time worked, it will be possible to determine a common denominator and examine the average wage per unit of time.  However, the Respondent did not prove its claims in this context at the level of proof required at the present stage, nor were we persuaded that the method of remuneration should be converted from a calculation based on output ("per operation") to an hourly calculation, since the evidence shows that even the hospitals themselves were of the opinion that the remuneration should be determined on the basis of the type of surgery and not on the basis of the duration of the operation.

The Existence of Justifications for Wage Gaps

75. Once we have determined that these are prima facie equivalent works and that there are gaps in remuneration, the burden shifts to the respondent to convince, even prima facie, that the provision of section 6 of the Equal Pay Law, which deals with circumstances in which it is justified to pay different wages for work of equivalent value: “)a) The provisions of section 2 do not prevent a difference in wages or other remuneration necessitated by the nature or essence of the work in question, including the output of the work. The quality of the work, the seniority in the work, the training or education, or the geographical location of the workplace, all when this does not constitute discrimination on the basis of sex."
76. With regard to this provision, the Respondent argues that the nature of the work of the Sanitaries, including the manner in which the work is performed and the difference between the hours of work performed by the Sanitaries, justify the higher payment of the salary for each allocation analysis. As detailed in detail above, we are unable to accept these arguments at this stage.  Moreover, in the case of the Jerusalem Municipality, it was held that the employer must show not only that there is a legitimate consideration, but also that the wage gap is "committed" in light of it, i.e., that it has significance relevant to the justification of the wage gap and that there is proportionality between the wage gap and that consideration (regarding the reasonableness of the wage gap, see also Election Appeal (Be'er Sheva) 1576-99 Simi Nidam - Electricity and Electronics Rally in a Tax Appeal [published in Nevo] (5 November 2003)).  In light of these determinations, we note that even if it were proven that there was a gap in the work time required to perform the two positions, or if we were convinced that the effort and skill required for the position of a sanitary worker was greater than that of an auxiliary worker, the gap in remuneration on the face of it is disproportionate.  As the remuneration table shows, a sanitary receives in certain surgeries twice or even three times the remuneration paid to an auxiliary worker.  The evidence brought before us does not show that this gap is reasonable or proportionate, even given the difference in effort and skill that the respondent claims.

Cause of action under the Equal Employment Opportunity Law

77. Section 2(a) of the Equal Opportunities Law prohibits an employer from discriminating against its employees because of their gender, in relation to determining their working conditions. The Respondent's argument that this Law can establish a cause of action only when it is a matter of equal work and not when it is a matter of equal value, is not required by the language of the section.  Section 2(c) of the law adds that "there is no discrimination under this section when it requires the characteristics or the essence of the position or" In the Ashdod Port case, the National Court discussed the burden of proof in relation to the Equal Opportunities Law as opposed to the Equal Pay Law: "In certain cases, the proof of the cause of action under the Equal Pay Law meets the evidentiary threshold required for the purpose of transferring the burden of proof in a claim under the Equal Opportunities Law to the employer's shoulders.  This applies where an employee proves that an employee works in the same job for the same employer and in the same workplace receives a higher salary than hers, and since the employer has not been able to point to a substantive justification for this gap, which is necessitated by the nature or nature of the work (in accordance with section 6 of the Equal Pay Law), then prima facie the assumption that the source of this gap is the employee's gender is an obvious conclusion.  This determination means that in certain circumstances, it will be sufficient to prove the existence of a significant wage gap between an employee and an employee, in order to shift the burden of proof in a claim under the Equal Opportunities Law to the employer.  In such a case, the employer will have to prove that it did not take into account the sex of the employee, among other considerations that led to the creation of the wage gaps, or that the distinction he made is necessitated by the nature and essence of the position in accordance with section 2(c) of the Equal Opportunities Law."
78. In the present case, the Respondent argues that the remuneration format is necessitated by the nature and essence of the work in the Compensation Allowance and due to the relevant difference between the two positions. As we explained above, the Respondent's arguments regarding material differences between the two positions should not be accepted at this stage, and certainly not those that justify paying the workers half of the remuneration paid to the senator in certain surgeries as stated above.  Moreover, as the evidence shows, it cannot be ruled out that the manner in which the remuneration was determined was rooted, inter alia, in the identity of the group with which the hospital negotiated, first with the nurses (the men) and then with the auxiliary staff (the women).  The burden of persuading that the payment is different from the nature of the functions rests, as stated, on the respondent, and at this preliminary stage of the proceeding, it did not meet it sufficiently to exclude the cause of action from the class action.

Interim Summary II

79. In accordance with the level of proof required to certify a motion to file a class action alleging discrimination in employment relations, we are persuaded that there is a reasonable possibility that the Applicant will prove that the work of the cleaners is equivalent work and that there is a gap in the remuneration paid to the female workers compared to the cleaners, which cannot be justified at this stage from a substantive point of view. Therefore, it was proven that the Applicant has a personal cause of action both in relation to the Equal Pay Law and in relation to the Equal Opportunities Law.
80. The Applicant stated in the application three additional general causes of action: breach of statutory duty, breach of contract, and unjust enrichment. Apart from mentioning these causes of action in the application, the Applicant's summaries do not contain any discussion of the grounds or an explanation of why their components exist.  The Applicant also does not state that the remedies are claimed by virtue of these grounds, as opposed to the relief sought under the Equal Pay Law and the Equal Opportunities Law.  Therefore, we have not found that there is room to approve the class action with respect to these general grounds.  In the margins, we should also note that with respect to enrichment and not in law, the Respondent did not pocket any funds at the expense of the Applicant or the group companies, since on the face of it, the entire budget of the Compensation Allowance was distributed among the Respondent's various employees.
81. We will now proceed to examine the other conditions required for the certification of the class action.

Substantive questions of fact or law that are common to all members of the class

82. The discussion in the previous section shows that within Carmel Hospital itself there is a group cause, since all the employees in the two positions discussed at the hospital perform their work in a similar format. It was not argued by the Respondent that there is a difference in the definition and performance of the job among a group of auxiliary workers and among the group of nurses within Carmel Hospital (apart from the claim that the duration of the operation varies according to the type of surgery), and therefore there is a group cause of action in relation to all the nurses and all the auxiliary workers at Carmel Hospital.  Similarly, it has not been claimed or proven that there is a difference among the group in another hospital, and therefore in any hospital where there is a wage gap in the remuneration of auxiliary surgeries between auxiliary workers and sanitary workers, there is a common fundamental question as to whether these gaps constitute wage discrimination between equivalent jobs.
83. According to the Respondent, there are no substantive questions common to all the members of the group in a broad manner, i.e., to all the auxiliary workers in the hospitals that perform cut-off surgeries, in view of the great variation between the employees in the various hospitals in terms of the content of the work, the scope of the work and the remuneration paid. This argument should not be accepted for two reasons:
84. First, with regard to the linguistic difference in the format and content of the work, sufficient evidence has not yet been presented regarding all the hospitals that conduct the Ketat surgery. All the information in this context is in the hands of the Respondent, but it chose not to present, even partially, detailed documents regarding what is happening in other hospitals, with the exception of Carmel and HaEmek Hospitals.  The claims made in this context in Mr. Fixler's affidavit are general and are not supported by any evidence.  Moreover, according to the data presented by the Respondent at this stage, in most hospitals that perform additional surgeries, auxiliary workers receive a significantly lower amount for each type of surgery than the sanitary workers.  In other words, the choice to allocate fewer resources to this group is uniform in most hospitals, so that it is not a matter of specific conduct in one hospital or another.  Moreover, the duties themselves are similar in all hospitals, in terms of most of the tasks performed by the nurses and auxiliary staff.
85. Second, as the testimonies indicate, each hospital indeed operates as an independent unit for the purpose of distributing the budget relating to the analysis of the Budget Allowance. At the same time, there are clear similarities in the conduct of the hospitals.    Hirshhorn confirmed in his testimony that hospitals receive a uniform budget for each type of surgery,[53] which must be divided among the staff members participating in the surgery: surgeons, anesthesiologists, nurses, technicians, sanitary workers and auxiliary workers.  Part of the budget is also earmarked for additional expenses, but Dr.  Hirshhorn confirmed that within the general budget given for each and every surgery, the portion designated for salaries is uniform in all hospitals.[54] In other words, all hospitals are required to deal with the decision of what part of the budget should be allocated to auxiliary workers in comparison to other workers.  Indeed, at the end of the day, the decision is not the same, and there is no dispute that the rate paid to auxiliary workers differs between hospitals, but a similar decision-making process is still taking place in all hospitals.
86. The Respondent further argues that there are no common substantive questions, since the rights claimed are not fundamental rights. This argument should not be accepted.  The right to wages that are not affected by gender discrimination is a basic right rooted in the principle of equality, which is firmly rooted in our legal system and about which many worthy words have been written.  It certainly cannot be said that the right to equality is not a fundamental right, as a right to a pension, as the Respondent formulates it in its summaries.
87. The Respondent further argues that the cause of action under the Equal Pay Law arises in relation to wage gaps in the same employer in the same workplace, as defined in section 2 of the Law. On the basis of what was stated in the Home Center case , the Respondent argues that since Carmel Hospital is geographically separate from the other hospitals and maintains a separate and different remuneration policy, the place of work for the purpose of the Applicant's claim is Carmel Hospital only, and it is not possible to conduct a class action by virtue of the Equal Pay Law in relation to other hospitals.  We are unable to accept this argument.  Indeed, in the Home Center case, it was determined that the dispute should be examined within the boundaries of the branch in which the employee was employed, since the wage terms were subject to the policy of the local branch manager.  However, even if the wage gaps are examined separately within the boundaries of each hospital (since the Applicant does not claim to be equal in wages with employees at another hospital), this does not indicate that it is not possible to conduct a class action in relation to similar (even if not identical) wage mechanisms on different websites of the same employer, especially when, as stated, there are similarities as to the manner in which the discretion between the hospitals is exercised allegedly.  In the Home Center case, Judge Wirth Livneh ruled that the term "same workplace" can be interpreted, in appropriate cases, in an industrial-factory context, including an examination across a number of different sites, and that "this interpretation will be possible in accordance with the circumstances of each matter and taking into account the reality in which an employer conducts his business.  In this context, we will also note the words of Justice (retired) Tzur in the same compromise, which were made in a side note but reflect a broad perception regarding the understanding of the scope of the group and the scope of an employer's responsibility for wage policy in all areas of its activity: "The tendency should be, in appropriate cases, to expand the concept of 'workplace' for that employer even beyond a specific work site.  The principle of equality and the first concepts in labor relations require the determination of equal pay for equal work for the same employer and allow deviation from this rule only where there is a substantive justification for it.  An organized, intelligent and enlightened employer would do well to set for himself in advance standards for the wages and working conditions of his employees in all areas of his activity.  Relevant and reasonable standards set on the basis of principles of equality - as well as ensuring appropriate proportionality between different wage levels - are the key to fair labor relations and industrial quiet in the workplace."

Is the class action the most efficient and fair way to decide disputes?

88. The Respondent makes five arguments regarding the manner in which the procedure is conducted: the differences between the hospitals and between the types of surgeries in each hospital will require a complex examination; Approval of the application may harm the members of the class; The lawsuit is substantial, and it is a very small and defined group; There are collective agreements on the subject of the Zoning Ordinance; and the lack of an early application. We will discuss the arguments according to their order.

Complexity of the procedure

89. The Respondent argues that the group of auxiliary workers is not homogeneous between the hospitals and that the clarification of the claim will require an individual, complex and lengthy factual examination, in relation to each employee separately and in relation to each hospital separately, including clarification of the scope of work hours and the nature of the work in relation to each type of surgery and surgery, both with regard to auxiliary workers and with regard to sanitary workers. According to the Respondent, this complex examination is required not only with regard to determining the remedy, but also with regard to determining whether it is equivalent work - while examining various types of surgery, calculating the work time, examining the nature of the work and the wage gaps.
90. Indeed, it is possible that at the end of the day it will be determined that there are types of surgeries that require special skill or additional time investment on the part of the nurses, which indicate work that is not of equivalent work, or that there is justification for the wage gap paid for that surgery. However, these determinations will not necessarily apply to all types of surgeries in a sweeping way.  It can also be assumed that the investigation of the claim will be complicated and will involve the investment of quite a few resources.  However, this does not negate the approval of the application.  As recently ruled in the Castro High Court case, "The degree of homogeneity of the class members may be a relevant consideration when the court comes to examine whether a particular proceeding is appropriate to be turned out as a class action.  However, the emphasis in this matter is on differences between the members of the class that have implications for the existence of a cause of action and on the very right of each member to receive relief.  This is in contrast to the oddity, which focuses on denying the possibility of assessing the individual damage caused to each member of the group or awarding compensation for it." In the present case, as explained above, there are similarities between the manner in which auxiliary workers are employed in hospitals, and even if it is not a homogeneous group, the difference does not indicate that the cause of action does not exist in relation to all of those workers.  Nor is it possible to accept the Respondent's argument at this stage that there is a material difference in relation to the work of the Sanitary Workers in all types of surgery, and it is not impossible that it will be determined that the difference in the nature of the work in relation to this or that surgery does not change the weight of the job as a whole or in relation to a particular surgery.  We will also mention the Bag case, where the employees were employed in different positions and in different job scopes, and there were also different characteristics between the employer's branches, and the National Court did not find that this would negate the certification of the class action.  Indeed, the case law has so far discussed situations in which there is a difference between the employees in terms of the scope of the job, the period of work and the rate of salary (for example, in the Labor Appeal (National) 246-09 Turgeman v.  Shahak Security and Office Services Ltd., [published in Nevo], December 27, 2009), but in our opinion there is no material difference between these matters and the difference between the different types of analyses performed in the Katz shifts at the procedural stage in which we find ourselves.
91. Moreover, against the complexity of the unique proceeding before us is the precedent-setting importance of clarifying the claim of wage discrimination in a broad manner that cuts across the bargaining groups. In the Keidar case, the following was written: "The Equal Pay Law was enacted with the aim of eradicating the structural and historical discrimination of women as recognized by the legislature, by equating their wages with those of a man who performs essentially equal or equal work.  The concept of equality that underlies the law is an advanced concept that is not satisfied with correcting individual discrimination, but is intended to carry out a deeper correction that goes to the root of discriminatory patterns in the world of employment.  The spirit of the law and the depth of its purpose illuminate its provisions as part of a broader vision of equality between men and women - which examines not only the details at the "micro" level, but also the women's group and its situation compared to the men's group, at the "macro" level.  The law is intended to try to overcome discrimination between men and women in the labor market even when it is done in a covert, covert, and indirect manner, and even when it is based on deep-rooted and accepted practices, patterns, and thought patterns." In this sense, the class action, despite its shortcomings, allows for a lateral examination of practices and thought patterns regarding salary ratings, especially when it comes to the public sector and a workplace that dominates a number of employment units.  In our view, this consideration prevails over the complexity of the fundamental issue underlying this case, as well as the complexity of the procedural aspect described by the Respondent (see also Labor Appeal (National) 16621-02-17 Saperansky - Natan - The Israeli Center for Nursing Medicine in a Tax Appeal [published in Nevo] (February 12, 2019)).  It should also be noted that in its current wording, the Equal Pay Law does not include an explicit mechanism for equalizing wage gaps between groups of workers.  The law speaks in the language of an individual claim for a wage gap between a certain employee and another specific employee.  This model has clear disadvantages, including the difficulty faced by the employee in proving patterns of discrimination and the narrowing of the perspective to the personal conflict rather than an in-depth examination of patterns of discrimination in the labor market.  In this sense, a class action can realize the basic principles underlying the two laws - the Class Actions Law and the Equal Pay Law - by taking a broad view of the wage policy in hospitals, in order to eradicate, to the extent that the lawsuit proves, a pattern of discrimination that is hidden from view.  The legislature also expressed its opinion, by the very inclusion of the Equal Pay Law in the addendum to the Class Actions Law, that there is room in appropriate cases to approve class actions under this law, in order to realize the purpose of the law, which is to improve the protection of rights - and in this case the protection of the right not to be discriminated against in wages.
92. Moreover, even if an examination of the class action on its merits means a separate examination for each hospital that conducts CAT surgeries, it is possible that the analysis of the occupations will be performed by an expert in this matter. In this respect, there is a clear efficiency in having one party with expertise in the field be in charge of examining the various roles and will concentrate its findings and conclusions individually, but also if necessary, broadly.  Such an expert will be able to use the data collected from the various hospitals to analyze the issues.  This situation is more efficient and correct than managing individual claims in each court separately, according to the jurisdiction in which the hospitals are located, and appointing a number of different experts if necessary, a situation that can lead to conflicting decisions and protracted proceedings.

Is the approval of the request liable to harm the members of the group?

93. According to the Respondent, the conduct of the Applicant's claim as a class action will harm the claims of Auxiliary Workers for two reasons: first, the Applicant did not perform the Employment Allowance from 2/2017 to 1/2018, she cannot claim wage differentials for this period, and therefore she is liable to harm the claims of other employees who performed the Allowance work during this period and can raise claims with respect to this period as well; and second, the Applicant cannot claim compensation for non-pecuniary damage in the framework of the class action, and the conduct of the class proceeding will deprive the other facts of the possibility of claiming this relief.
94. These arguments should not be accepted. With regard to the alleged period, the evidence does not show that the Applicant did not perform the work of the Allowance at all, but that in respect of her participation in the Allowance Analysis, she allegedly received payment for a regular shift in lieu of the Allowance rates.  Moreover, the law does not require that the personal claim encompass the entirety of the period relevant to the definition of the class class, and it is possible to clarify the class action in accordance with the period defined in sections 10 and 26 of the law.  With regard to compensation for non-pecuniary damage, section 20(e) of the Class Actions Law states that "the court shall not award exemplary damages in a class action, nor shall it award damages without proof of damage, except in a claim as detailed in Item 9 of the Second Addendum, but the aforesaid shall not prevent the award of compensation for damage that is not pecuniary damage." However, this is a case of damage that requires proof.

The amount of the claim and the size of the group

95. Indeed, the case law held that the class action is a tool intended for claims whose sum is negligible compared to the causes of action and therefore there is no economic feasibility in managing an individual's claim (High Court of Justice 1893/11 The National Organization of Guard and Security Enterprises in Israel v. The National Labor Court [published in Nevo] (August 30, 2015)).  However, it was also determined that a high amount of the claim does not necessarily justify the dismissal of the class action (Labor Appeal (National) 20957-05-11 Sharabi - Security Net Ltd., [published in Nevo], November 21, 2017).  In the present case, the Applicant estimates the wage differentials for the Allowance surgeries in the sum of approximately ILS 8,400 per year (in relation to the regular days of the week without Friday shifts).  This is not a particularly high sum compared to the single employee.  Moreover, in view of the complexity of the procedure and the difficulty in proving the cause of action and collecting the data, it can be assumed that many employees will not file personal claims in order to clarify the existence of discrimination in every hospital in which they are employed, even if the amount of the personal claim is not negligible.  In other words, a single employee will not have an economic incentive to clarify the complex issue, while on the other hand, the proceeding will be able to result in a low financial compensation compared to the expenses required for this type of proceeding (see also Class Action (Center) 14144-05-09 Apex Underwriting and Issuance Management in a Tax Appeal v.  Harel Funds Management Ltd., [published in Nevo], October 3, 2010).
96. With regard to the Respondent's claim that the group of employees who can be part of the representative group is small and defined, in the framework of the local authority inquiry, the Respondent claimed that the group of auxiliary force workers who perform operations consisted of about 40 female employees in six hospitals as of that date (7/2021). The Applicant does not present other data regarding the size of the group, but it should also be noted that the Respondent did not present data regarding previous years.  Even if we assume that the size of the group is about 40 employees, it is indeed a relatively small group, and on the face of it, there is no real difficulty in locating the members of the group.  However, this reason is not sufficient to justify the rejection of the application, when on the other hand, as stated, there are clear difficulties in conducting a claim concerning wage discrimination.  In this context, we note the words of the scholar Alon Clement in the article "Guidelines for the Interpretation of the Class Actions Law, 5766-2006" Hapraklit 49 131, 146 (2007): "Even when the class appoints a small number of plaintiffs, it is nevertheless possible that the proper and fair way to discuss the divisions between them and the defendant is the class action, whether because there is difficulty in locating the plaintiffs, or because the plaintiffs are afraid to approve the action filed on behalf of each of them.  In other words, the consideration of conducting a class action on behalf of a small group must be considered the difficulty of each individual employee in managing the proceeding, certainly when she is still employed by the hospital and does not wish to undermine the employment relationship between her and the employer, and even after the termination of the employment relationship, since at this stage it is increasingly difficult to determine the extent of the wage gaps in light of the information gaps.

Kibbutz Series

97. The Respondent's claim that it is an organized workplace and therefore it is not possible to conduct a class action against it must be rejected. Item 10(3) of the Second Addendum to the Class Actions Law states that "a claim by an employee to whom a collective agreement regulates his working conditions, and whose employer or employer's organization of which he is a member is a party to the collective agreement, does not fall within the scope of claims that can be approved as class actions.  However, this provision does not apply to class actions that are filed on a cause of action under the Equal Pay Law, which is detailed in Item 8(2) of the Second Addendum.  In this context, in the Labor Appeal (National) 629-07 and Yaron v.  Tevel Security, Cleaning and Services in a Tax Appeal [published in Nevo] (January 3, 2011), it was ruled that "causes of action relating to discrimination and violation of the right to equal opportunities are not subject to the qualification set forth in section 10(3) above, and thus the legislature has chosen to allow the filing of a class action even when it comes to an employee who is subject to a collective agreement regulating his working conditions, and it is even possible that these conditions are the source of his claim of discrimination."
98. Beyond what is required, we should mention that the collective agreements that apply to the Respondent do not regulate the payment to employees in the Compensation Allowance shifts. The Respondent argues that in some of the hospitals the allowance payments were determined in agreement with the local committees, but no evidence was presented to this effect.    Hirshhorn claimed in his testimony that a discussion was held with the local committee of auxiliary workers at HaEmek Hospital regarding the determination of wage rates for the surgery (after negotiations with the committees relating to doctors and nurses), and even claimed that there was a written and signed summary by the committee and the hospital management.[55] Such a document was not presented to us, the representative of the Histadrut claimed at the hearing that he was not familiar with the document,[56] and the respondent did not explain why she chose not to present it.  Mr. Feckler testified in relation to Carmel Hospital that the determination of the rates for the analysis of the allowance was done before he took office and that "there are no written summaries" and that this is not an issue that was included in the collective agreements.Ms [57] .  Sommer also did not know how to point to any written document, nor did she know how to elaborate on the content of the conversations with the various committees, but explained in her testimony that her role is mainly to ensure that the guidelines regarding the various rates are actually implemented.  We also learned from her testimony that in the past, Ms. Sommer took part in discussions about setting rates for the surgery, when according to her, a team convened to determine the manner of distributing the budget, which included "doctors, the nurse in charge of the operating room, the head nurse, everyone who ends up managing the work in the operating room,"[58] and the team's decision comes down "from the director of the operating room and the relevant staff to actually update the employees and this works for the personnel to perform."[59] In other words, there was no dialogue with the auxiliary workers or the relevant committee, but rather the decision was made by a management team regarding the operating rooms.  This statement contradicts Ms. Sommer's claim in the affidavit that the distribution of the budget for the analysis of the allowance was made by the hospital management,[60] and also contrary to Mr. Feckler's claim that there were contacts with auxiliary workers or the committee regarding the rates to be paid to them.[61] It should also be noted that Ms. Sommer confirmed in her testimony that she does not participate in the CAFT's analyses,[62] so that most of the issues detailed in the affidavit are not at all known to her from personal knowledge, but apparently from things that were given to her by others.
99. In fact, the testimony of Dr. Hirshhorn and Mr. Feckler showed that the distribution of the budget was done in a gradual manner, with first negotiations with the doctors and the rate to be paid to them, then negotiations were conducted with the nurses and the rate they would receive, then negotiations were conducted with other professional workers, and so on, until a dialogue was held with the nurses and their rate was determined.  In the end, according to the claim, the rates for auxiliary workers were determined, which, as stated, are at the bottom of the hierarchy.  However, at that stage, the tariffs for each other group had already been determined, and therefore it is doubtful whether there were real negotiations regarding the amount of the tariffs with the facts, or whether there was only talk of dividing the remaining budget among different types of analyses and nothing more.  It is difficult to view this situation as collective agreements that block the possibility of conducting a class action.  Moreover, the Histadrut representative stated at the hearing that at this stage the workers' organization does not take any position on the disputes between the parties, given the complexity of the issue, and that "there is no nationwide collective agreement" regarding the determination of the rates of the Histadrut and that "there are local agreements here and there and they are also not in a collective agreement, so it is difficult to say that the Histadrut agrees, it is done by the management..."The [63] representative of the organization also noted that at this stage there is no intention of any activity at the collective level with regard to the analysis of the Applicant's claims of discrimination, and added that the activity of this or that local committee is carried out if necessary in order to try to increase the remuneration and not necessarily to make a comparison between the various positions or to check whether there are gender wage gaps.[64] Since the workers' organization at this stage does not operate at the collective level (national or local) in order to examine the issue, it should not be determined that the respondent's fact that an organized workplace prevents the approval of the application (compare, for example, Class Action Appeal (National) 58437-01-22 Tegen - Operational Security - Global Security D.W.  Ltd., [published in Nevo] on November 29, 2022; Labor Appeal (National) 28085-10-18 Saulov - Kleinor Services for Israel Ltd., [published in Nevo] of January 12, 2020).

Lack of Early Application

100. The Respondent argues that the Applicant did not act as required of her and did not contact her with any prior application prior to the filing of the class action, and therefore the motion should be dismissed. We are unable to accept this argument.  We should first note that there is a dispute in case law regarding the nature of the obligation to apply to the employer or the workers' union in advance, and whether the absence of a prior application is sufficient to reject a motion to certify a class action (High Court of Justice 1893/11 The National Organization of Guard and Security Enterprises in Israel v.  The National Labor Court [published in Nevo] (August 30, 2015), Labor Appeal (National) 48523-10-12 Blue - Aviv Yael South in a Tax Appeal [Published in Nevo] (May 7, 2017)).  Moreover, in the present case, a previous proceeding was conducted for a motion to certify a class action between the parties, on the subject of wage disparities, and in the hearing of the appeal it was said that the Applicant was entitled to resubmit her application.  The Applicant also contacted the Respondent on August 5, 2020, in order to obtain the information she needed for the purpose of preparing the application, and also on September 22, 2020, a letter was sent to the Respondent in which the Applicant stated that she had not yet received a response and that she would be forced to submit the application for approval again without the requested data.[65] Regarding the application to the workers' union, as stated, item 10(3) of the addendum to the law does not apply in our case, and it is not a situation in which the existence of a workers' organization in the workplace constitutes an obstacle to the investigation of a class action.  Moreover, the Applicant consistently claimed throughout the proceedings that there were contacts between her and the workers' organization in order to obtain its support, but to no avail.[66] We should also note that throughout the course of the proceedings before us, the Histadrut did not claim that it wished to act on the collective level, and in any case it was not prevented from acting in a collective manner or in any other manner with respect to the claim.  Therefore, the application should not be rejected on the grounds of lack of contact with the Histadrut (see also Labor Appeal (National) 19275-10-12 Kalinor Services to Israel in Tax Appeal v.  Salove, [published in Nevo] of December 6, 2016).

Representation in an appropriate manner and in good faith

101. There is no dispute that the conduct of the representative plaintiff and the representative counsel, both from the professional perspective and from the aspect of the nature of the conduct, must be in good faith and fairness (for a broad discussion on this issue, see Class Action Appeal (National) 2421-03-19 Svetlana Nuta - Matav - Association for Treatment and Welfare Services [published in Nevo] (September 14, 2022)). The Respondent argues that the Applicant's claim is tainted by bad faith in light of misleading factual claims presented in the proceeding, such as regarding the format of work on Fridays, the dates of the end of shifts, the types of surgeries and their rates.  We do not accept this argument, since the factual disputes have not yet been resolved, and as explained above, contradictions were also discovered in the respondent's claims regarding the format of work and the hours of end of the shift, and they were not supported by convincing evidence.  Moreover, we were not persuaded that the Applicant's claims were made with the intention of misleading or misrepresenting, and the Applicant's answers in the cross-examination could clearly be attributed to the anger and tension she felt during the proceeding towards the Respondent, and not to an attempt to evade providing substantive answers.  We will also note that we have been under the impression that the Applicant and her counsel wish to bring the disputes as they exist before the various courts, and even the full information available to them, while on the other hand, the Respondent refrained, as stated, at this stage, from presenting all the data that could shed light on the issues before us.  Not only that, but the Applicant contacted the Respondent prior to filing the application in this proceeding, and asked for various data, but was not answered.  In this state of affairs, we do not accept the Respondent's claim of bad faith on the part of the Applicant in presenting inaccurate data, and we are under the impression that the representation will be proper and in an appropriate manner on the part of both the Applicant and her counsel.

Does the Respondent have a defense against a class action?

102. In its response, the respondent refers to the defense set forth in section 8(b)(2) of the Class Actions Law: "A motion for certification was filed against an entity that provides an essential service to the public, ... And if the court is convinced that the very conduct of the proceeding as a class action is expected to cause serious damage to the public in need of the defendant's services or to the public at large, as a result of damage to the defendant's economic stability, as opposed to the expected benefit from conducting it in this way to the members of the class and the public, and the damage cannot be prevented by way of approval of the changes as stated in section 13, the court may take this into account when deciding whether to approve a class action." According to the Respondent, Managing a claim on a huge financial scale will significantly harm its ability to provide beneficial services to its policyholders and the general public.
103. This argument should not be accepted, not only because no evidence was presented as to the extent of the damage that may be allegedly caused to the respondent's services, but even if the claim will have a significant financial result, on the other hand, the class has a benefit from the approval of the claim, and it is not a negligible benefit. Moreover, we found it difficult to accept the argument that the eradication of gender wage gaps, to the extent that these are proven, entails serious damage to the insured public or to the public as a whole.  It should also be recalled that the relief that will be granted, if and when the class action is accepted at the end of the proceeding, is subject to section 20 of the Class Actions Law, which includes a series of mechanisms that allow the court to award remedies in a manner that does not burden the parties unduly.  Therefore, even if the respondent proves that the economic implications of accepting the claim, including full compensation for all the group companies, are excessively burdensome, it will be possible to take this into account in shaping the correct remedy in the proceeding; The scope of the remedy, insofar as it is proven, does not constitute a consideration for not approving the class action.

Set up the group

104. The Respondent argues that the auxiliary workers at HaEmek and Kaplan Hospitals do not perform the work of the Reserve Officer as defined in the application, since they do not perform additional work after the end of the regular shift, but are assigned to the evening shift as part of their regular job. On the other hand, the nurses in these two hospitals are assigned to the emergency department after the end of the regular shift, and therefore this is a different equality group in these hospitals.  It was also claimed that at Schneider Hospital there are no sanitizers employed in operating rooms and at Meir Hospital there are no auxiliary workers employed in the work of the Labor Department.  Therefore, in its summaries, the Respondent argues that at most, within the definition of the group, it is possible to include only the auxiliary force employees in the following hospitals: Carmel, Hasharon, Beilinson and Soroka.
105. According to case law, although the tribunal was required in accordance with the provision of section 10(a) to define the class already at the stage of the application for approval, the Civil Appeal Authority recently ruled in Civil Appeal 8205-21 Ofakim Travel and Tourism (1979) in the Tax Appeal v. Greenwald [published in Nevo] (December 28, 2022), that it is possible to approve a class action even if the size and scope of the class have not yet been clarified, and there is no impediment to clarifying and determining the exact class definition at the stage of the hearing of the claim itself.  After examining the evidence presented at this stage, we were not persuaded that the auxiliary force workers at HaEmek and Kaplan hospitals should be left out of the group's boundaries, since in these hospitals as well the remuneration for participation in the operations was determined on the basis of the type of surgery and at a lower rate for a female auxiliary worker than for the nursing home.  Even if, according to the Respondent, participation in the Katz surgeries is done during the regular shift of the employees (evening shift), in practice they are compensated separately for the surgeries that take place at the same hours, according to a mechanism that is similar in essence to the other hospitals (payment according to the rate of surgery that is lower than the rate of the sanitary).  Even taking into account the Respondent's claim that they have recently begun to deduct 15 minutes from the shift time for each surgery, in order not to create a double payment (shift payment as well as allowance payment), the mechanism of payment for the cut-off surgeries themselves has not changed.  It should also be noted that in relation to the other hospitals (except Carmel Hospital), the data relating to the work format were presented in general and without support in documents and evidence.
106. On the basis of the aforesaid, we determine that the definition of the group will include all auxiliary force workers in hospitals where operating rooms operate, who have performed cut-off surgeries for which they were paid a lower rate than the rate paid to sanitizers for these surgeries.
107. According to Section 10 of the Class Actions Law, the relevant period for clarifying the claim is from October 2015 until the date of this decision, in relation to the Equal Pay Law, since the statute of limitations under this Law is five years, and from October 2017 until the date of this decision, in relation to the cause of action by virtue of the Equal Employment Opportunity Law, since the limitation period under this Law is three years. The Applicant's argument that the relevant period is seven years prior to the filing of the application in the framework of the case that was conducted in the Haifa Tribunal should not be accepted, since there was a different cause of action concerning the performance of similar work, whereas in this case the cause of action concerned the performance of work of equivalent value.

Conclusion

108. In light of all of the above, it is appropriate to approve the management of the class action, as follows:
109. The class plaintiff will be the applicant.
110. The group's attorney will be Adv. Shakib Kubati.

• The group companies will be all the auxiliary workers in the Respondent's hospitals where operating rooms operate, who have performed CPA surgeries for which they were paid a lower rate than the rate paid to the sanitary workers for these surgeries.

1. The grounds of action are discrimination in violation of the Equal Pay for Male and Female Employee Law, 5756-1996, from October 2015 until the date of approval of the application, and discrimination in wages in violation of the Equal Employment Opportunity Law, 5748-1988, from October 2017 until the date of approval of the application.
2. The remedies claimed are monetary compensation for the wage differentials between the remuneration paid to auxiliary workers and the remuneration paid to sanitary workers, non-pecuniary compensation for discrimination, and a permanent injunction ordering the payment of similar salaries to auxiliary workers and sanitary workers who perform cut-off surgeries.
3. Any company in the class that wishes not to be included in the class shall submit a notice to the court within 45 days from the day on which the applicant publishes the confirmation of the claim, as detailed below.
4. The Applicant will publish in three daily newspapers, one of which is in Arabic, an advertisement detailing the following details: a summary of the Tribunal's decision to certify the class action; details listed in section 14(a) of the Class Actions Law; and the possibility of giving notice of withdrawal from the class within 45 days.
5. At this stage, the Respondent will bear attorney's fees in the amount of ILS 10,000 plus a lawful tax appeal. The sum will be paid by the respondent within 30 days.  This amount will be taken into account as part of the fee ruling in the final judgment.
6. A statement of defense will be filed within 30 days of this decision.

Granted today, January 22, 2023, in the absence of the parties and will be sent to them.