The Hours of Work and Rest Law 1951 is one of several protective social employment laws enacted shortly after the founding of the state of Israel. The law delineates the timeframe for the working day, the working week and weekly rest days. It contains a basic prohibition on working overtime and working on weekly rest days, subject to limited permits and exclusions. Certain categories of employee are excluded from the law, such as employees in managerial positions, positions requiring a special degree of trust or positions in which the employer cannot supervise the hours of work and rest. These exclusions have been narrowly construed.
Overtime hours and hours worked on weekly rest days entail a premium payment that must be paid separately. Payment is made at:
- 125% for the first two hours of overtime each day or week;
- 150% for each additional hour of overtime; and
- 150% for hours worked on weekly rest days.
In addition, hours of rest may be given in lieu. The regular wage cannot be used to cover the premium at higher rates than the regular rates. The law imposes clear limits on working time - even with premium pay - and recognises the need for hours of rest during each working day and working week. Compliance with the law is essential for the dignity and freedom of workers.
The law assumes that the hours of work and rest can be delineated and balanced according to the provisions of the law. However, this is not always the case, as demonstrated in an extraordinary ruling of the Supreme Court of Justice regarding the claim of a live-in caregiver in respect of the premium payable for overtime hours and hours worked on weekly rest days.
In Israel, many families who wish their elderly loved ones to remain at home in a familiar habitat hire live-in caregivers who literally live in the home and take care of the elderly family member 24 hours a day. As there are not enough Israeli candidates for these positions, foreign employees are often employed and special permits can be obtained to employ a foreign employee as a caregiver.
Claims are often submitted by foreign employees requesting the premium payment for overtime hours and for hours worked on weekly rest days in such positions. For many years the Israeli labour courts have deliberated such claims. Conflicting considerations include the following:
- Such caregivers occupy a position of special trust - one of the categories excluded from the applicability of the law.
- The employer is often the care recipient and therefore cannot supervise the caregiver's hours of work and rest.
- Caregivers are a weak segment of the population from an educational, social and economic perspective. In addition, their situation is often exacerbated as they are foreign employees who are far from home, do not speak the local language and are unfamiliar with local customs, remaining dependent on their local employer or the recruitment agency through which they arrived.
- It is extremely difficult (if not impossible) to delineate, supervise and calculate separately the hours of work and rest of live-in caregivers.
- It is difficult to categorise hours spent sleeping, watching television or reading as working hours.
- Due to the unique nature of the work of a live-in caregiver, he or she cannot abide by the restrictions in the law.
- Elderly care recipients are typically a weak segment of the population and unable to afford to pay for each overtime hour and hour of work on weekly rest days.
- Caregivers enjoy lodging and food benefits, thus enabling them to save much of their earnings.
When confronted with caregivers' claims for premiums for overtime hours and hours worked on weekly rest days, the National Labour Court ruled that in view of the difficulties in applying the law on the one hand and the need to afford protection to caregivers on the other, the solution was to award live-in caregivers an increment over and above the minimum wage, which should be determined according to judicial assessment upon receipt of proof of the pattern of employment.
The ruling dealt with the claim of a foreign caregiver employed by an elderly care recipient who was connected to a respiratory device. The caregiver lived in the home and performed household tasks in addition to providing care. This ruling was overturned by the Supreme Court of Justice.(1)
The Supreme Court emphasised the protective and mandatory nature of the law and its aim to ensure that a "balance is maintained in the person's life between hours dedicated to work and hours dedicated to leisure". The purpose of the law is to prevent employees from working extra-long hours and thus to protect their dignity. Nonetheless, the law itself recognises that there are cases in which its application is impossible or where it should be applied with adaptations. Interpretations of the law must take into account its purpose and the rationale behind its exclusions.
In the course of its decision the court investigated whether such exclusions to the law applied to live-in caregivers of wholly dependent care recipients. The court ruled that the special trust exception is intended for employees who hold a position that enables them to control the balance between hours of work and leisure. It usually refers to 'strengthened' employees who require less protection from the law and whose working conditions are above average. The live-in caregivers of wholly dependent care recipients do not control the balance between their hours of work and leisure, and therefore need the protection of the law. However, these caregivers are employees in whom employers place their ultimate personal trust. Additionally, such caregivers give care to wholly dependent recipients who are themselves part of a weakened population that needs constant supervision.
The relationship of trust between caregiver and recipient grows over the years - thus, insofar as possible, care should be provided by the same caregiver throughout. However, this means that the caregiver must remain in the company of the recipient for long hours, often exceeding those provided for by law. This necessity arguably creates a justification for applying the exclusion to the law to live-in caregivers.
The Supreme Court ruled that the impossiblility of an employer being able to supervise the caregiver's hours of work and rest is irrelevant, since the working hours of such caregivers are largely spent in the home of the recipient, with no flexibility. The employer - either himself or herself or through family members - can therefore supervise the hours of work and rest.
The court did not accept that it should award an increment to the minimum wage, since there was no legal basis for doing so. Additionally, the court did not accept that hours spent in the home of the care recipient, but not taking direct care of the care recipient, should be excluded from working hours, since the main duty of the caregiver is to supervise the recipient and this duty is spread over the whole day.
The court concluded that the general pattern of work of live-in caregivers falls outside the scope of the arrangements of the law. The unique nature of such work - which requires the caregivers to supervise their charges 24 hours a day - does not enable them to maintain the balance between hours of work and rest, and therefore does not enable them to abide by the law. This unique nature is essential and serves both care recipients and caregivers, the great majority of whom are foreign workers who come to Israel for a fixed period during which they expect to earn as large a sum as possible in order to improve their economic conditions, save money and return to their home country. The court stated that "this form of employment which combines living premises, work and leisure in many cases is preferred, since the caregiver can save the majority of lodging and food expenses". Overtime is payable in order to achieve the aforesaid purpose of maintaining a balance, but the unique nature of the employment of live-in caregivers makes obtaining this balance unfeasible.
The court ruled that it was not possible to examine the issue of the entitlement to overtime separately from the nature of employment of live-in caregivers, or to apply the law piecemeal. Additionally, imposing a duty to pay overtime on those who need the services of the caregiver - mostly elderly and disabled people - would directly affect the capability of care recipients to afford such services. This would result in the prevention of employment in Israel of such foreign employees. The court emphasised that excluding live-in caretakers from the law - which is a protective law - is the necessary outcome of "a complex and imperfect reality", driven by the interests of both caregivers and care recipients. The court emphasised that the ruling should not be interpreted as legitimising oppressive contracts, even if the conditions of employment in Israel are better than those in the home country.
The court concluded that the legislature must tackle the issue by way of a comprehensive, coherent arrangement that:
- protects the interests of both caregivers and care recipients;
- takes into account the unique nature of the work of caregivers and their invaluable contribution to the care of elderly and disabled persons; and
- considers the financial benefit involved in the provision of lodging and food to the caregiver.
The attorney general announced that the Ministry of Industry, Commerce and Employment is preparing a bill on the subject.
The petition of the caregiver to receive overtime was ultimately denied, as the court found that it was unable to assist the caregiver through the available judicial means.
Due to the importance of the issues arising from this case, the president of the Supreme Court has decided that the issues should be reconsidered by a court comprised of nine justices. The case is scheduled for November 2011.
For further information on this topic please contact Shoshana Gavish at S Horowitz & Co by telephone (+972 3 567 0700), fax (+972 3 566 0974) or email ([email protected]).