It is not possible to give additional hours of readiness for hazardous materials to those who do not have the necessary education and experience. In 2014, the plaintiff underwent "environmental drives" training, which is different from the complex and professional hazardous materials training.
The plaintiff's claims of on-call attest to her basic lack of understanding, and in the worst case - to her lack of good faith. Preparedness is not a "means to improve wages," but rather to deal with risk events.
The association does not "distribute" alert hours "to everyone", but only in accordance with the needs and resources at its disposal, and in accordance with the necessary approvals. Each employee receives a type of standby that is appropriate to the nature of his work, responsibilities and education, and the plaintiff is not entitled to different types of standby. 38]
The Normative Framework
- The starting point for examining eligibility for payment for standby is that standby is not part of the cogent arrangements of the protective labor law, and is not in itself equivalent to overtime or excess work hours under the Hours of Work and Rest Law, 5711-1951. In the ruling of the National Court, it was clarified that standby hours are "a contractual arrangement - which can take the form of a collective agreement, a collective arrangement, a provision of a recognized procedure or practice in the workplace." The purpose of on-call is to compensate the employee for his very availability beyond his regular working hours. In a certain case , it was emphasized that the on-call expresses the employee's readiness and availability beyond regular working hours, for the purpose of performing tasks such as answering the phone or physically presenting, and that the source of the right to additional standby is derived from the arrangement that applies to the employee. This principle was also reiterated in the Arbel case,[40] where it was held that this was an arrangement intended to provide compensation for the availability itself, where the realization of the availability entitles to an additional and separate payment for the work performed.
- As for employees of local authorities, the relevant source of entitlement is found in section 27.8 of the Labor Law for employees of local authorities. In the Rosenblum case,[41] the provision of the section was brought, stating that employees in local authorities, in all ranks, for whom no other special provisions on the subject of alertness have been established in national agreements, and who are "required to be on standby at home for work needs, after work hours, will receive payment for the alertness."[42] In the same section, a gradual payment mechanism was also established according to the duration of the standby, and a component of a "surprise call" for an employee who returned home after work hours and was called to return to work was separately arranged.
- The National Labor Court clarified the language of section 27.8 of the Labor Law, which indicates that compensation for standby is paid to someone who is required to be on call at home for work needs, while the Labor Law does not include an independent definition of the term "standby."
- The Rosenblum case also indicates that weight should be given to the manner in which the alert mechanism actually operated. In the same case, in which the issue of hazardous materials alert was discussed, it was noted that the hazardous materials alert was not reported to the Human Resources Department, that the municipal hotline did not register the employee and his employees as alerts for hazardous materials incidents, and that the call center's manager was not aware of the existence of such a alert. Subsequently, it was determined that the standby of the hazardous materials carried out by the employee in that case did not constitute "standby" that entitles him to "on-call compensation" under the Labor Constitution, and that his entitlement was limited to the supplement paid to him by virtue of the specific arrangement.
- With regard to the question of the allocation of standby positions, this is within the scope of the employer's managerial discretion, but this discretion is subject to the principles of reasonableness, matter-of-factness, good faith and sufficient administrative transparency. In the Arbel case, the National Court distinguished between contractual alerts and planned alerts, which stem from the prerogative given to the state as an employer. As for the planned on-call days, it was determined that they were distributed among the employees by the institution's management and in accordance with its discretion. However, the tribunal found a flaw in the decision-making process where the division was not sufficiently transparent and orderly, and the considerations were presented in a general manner, without concrete reference to the relevant officials. The court emphasized that such a defect does not necessarily lead to a determination of discrimination, but it may justify returning the matter to reconsideration.
- As for the comparison between employees, the case law indicates that entitlement to standby should not be derived solely by virtue of a general comparison. Thus, for example, in the Simhi case,[45] the plaintiff's argument that since the employees of the parking department subordinate to him received compensation for on-call work, he was also entitled to a similar entitlement. The eligibility was examined according to the arrangement that applied to him, according to the question of whether he had been approved for a quota of alerts, and according to the question of whether he was required to perform and report on alerts. Similarly, in the Arbel case, it was clarified that for the purpose of examining a claim of discrimination, it is necessary to examine whether employees in a similar situation have received the same treatment. When it comes to employees who have a relevant difference, it is necessary to examine whether the difference in the ratio given to them is justified by the degree of difference between them.
From the general to the individual
- In our case, neither the plaintiff nor the defendant referred to the source that anchors the plaintiff's entitlement to receive compensation for standby (of any kind) and/or to the source according to which the defendant paid the standby pay to the plaintiff and his employees at the relevant time.
- However, the totality of the evidence, including the minutes of the management meeting of September 26, 2017,[47] shows that even though there was no explicit normative source that regulated the payment of standby in the Association, there was a practice of adopting some of the instructions and procedures that apply to local authorities. Thus, the plaintiff argued at the meeting: "We are following the Ashdod Municipality's bylaws." The director-general, Dr. Anat Rosen, confirmed that "the association adopts the appropriate procedures of the Ashdod municipality in order not to reinvent the wheel," but emphasized that "the association does not 'copy and paste' everything that is done in Ashdod" as it is "a small body with other needs."
- It should be noted that the expert opinion on behalf of the defendant, CPA Michal Levi Yashuvioff (hereinafter: "the expert on behalf of the defendant"), who prepared the calculation of the plaintiff's salary (Appendix 28 to the affidavit of Dr. Rosen's main testimony), indicates that the standby hours in the plaintiff's case were paid in accordance with the "Register of Terms of Service". The opinion reads:
"The employee received 40 hours of on-call in each of the months of the inspection.