(b) The employment agreement or collective agreement includes a detailed and orderly arrangement regarding the methods of handling gratuity income, such as transparency and documentation of the payments, the existence of a cash register and accounting of the income, the methods of distributing the amounts received, the dates of distribution, and more.
(c) The salary from both sources (the regular salary and the gratuity payments) will not fall below the minimum wage prescribed by law.
(d) The employee's social rights are based on the income from both sources and are guaranteed in their entirety.
(e) Ensuring the full tax payments required from the employee's salary."
- The issues of the payment of social rights, National Insurance contributions, and the employer's right to take part of the gratuity money as income did not arise in the Malka case and therefore were not regulated within the framework of it.
- 2. The Kiss Rule
- As we have noted, the guiding rule today for the issues before us is the Kiss Rule, which was given in this court, and dealt with the regulation of gratuity income and the calculation of social rights in respect of them. The following are the main rulings in the judgment that are relevant to our case:
- Gratuity income in the restaurant industry constitutes the income of the business and the employment income of the 'service chain workers' from the employer.
- The voluntary test (or "registration test") that was customary in the industry until the judgment was rendered should not be applied. In this determination, the court relied on two main reasons: first, that it is not possible to continue to treat the payment of the gratuity as an action that stems from the client's wishes, because it is an accepted practice that has taken root in today's social and cultural perception, which almost amounts to the norm. Second, there was no justification for leaving the payment of the tip in the hands of the waiter alone, since all the employees in the service chain have a responsibility to the degree of customer satisfaction.
- The judgment explicitly stated that in the absence of an explicit stipulation:
"The employer may use the gratuity money solely for the purpose of paying wages to the service chain workers, according to the arrangement agreed upon in the restaurant, which must be explicitly and preferably in writing; He is not allowed to use the gratuity money to make mandatory payments (the employer's share of National Insurance contributions and health tax), pension contributions (the employer's share) or other social rights. These payments must be transferred for the full salary paid to the employee, i.e., including the gratuity money. Needless to say, the above must find expression in the registration obligations to which the employer is liable under the Wages Protection Law." (emphasis added)