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Trends in Labour Law — Forty Years of Israeli Law
Published online by Cambridge University Press: 16 February 2016
Extract
Two contradictory trends can be discerned in the development of labour law in Israel. On the one hand, there is the socio-philosophical approach which guided those who fashioned labour law in its early stages of development. This ideological, even doctrinaire, approach lay behind a long series of laws, especially between the years 1948-1964, and guided the Labour Courts since their establishment in 1969. The second trend, and one that is becoming more marked, is pragmatism. Especially since the early 1970s, labour laws have been characterized by pragmatism and by a retreat from the ideology-doctrinaire approach. The pragmatic approach is characterized by legislative and executive intervention in autonomous labour relations, by ad hoc decisions, and by a desire to achieve short-term, immediate economic and political objectives, even at the cost of harming important long-term principles. In some cases, it would have been possible to achieve these same objectives by alternative methods that would not have undermined the impressive structure of Israeli labour law principles.
- Type
- Labour Law
- Information
- Israel Law Review , Volume 24 , Issue 3-4: Israel Law—Forty Years , Summer–Autumn 1990 , pp. 674 - 695
- Copyright
- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1990
References
1 See Maine, , Ancient Law (London, John Murray, 10thed., 1984) 172–174Google Scholar.
2 See Polayni, , The Great Transformation (Boston, Beacon Books, 1944) 71Google Scholar.
3 Hours of Work and Rest Law, 1951 (5 L.S.I. 125).
4 Annual Leave Law, 1951 (5 L.S.I. 155).
5 Youth Labour Law, 1953 (7 L.S.I. 94); Apprenticeship Law, 1953 (7 L.S.I. 86).
6 Night Baking (Prohibition) Law, 1951 (5 L.S.I. 53); Employment of Women Law, 1954 (8 L.S.I. 128); see also, secs. 21-22 of the Hours of Work and Rest Law, 1951.
7 Male and Female Workers (Equal Pay) Law, 1964 (18 L.S.I. 165).
8 12 L.S.I. 100.
9 See Netanya Municipality v. Berger (1971) 3 P.D.A. 177; Shemen Industries v. National Labour Court (1980) 34(ii) P.D. 75.
10 See sec. 3A of the Adjudication of Interest (Amendment No. 3) Law, 1978 (33 L.S.I. 31) and Pelner v. Koor Steel Co. (1982) 36(ii) P.D. 74.
11 17 L.S.I. 161.
12 Regarding severance pay as a means of deterring employers from frequent use of their power to dismiss, see Raday, F., “Changing Employment Conditions — By Unilateral Edict or Consensuality?” (1989) 19 Mishpatim 47Google Scholar.
13 Austria and Belgium have statutory provisions for severance pay in all cases of redundancy dismissals. In France, Norway, and Sweden, the provisions for severance pay in collective agreements differ in extent. In the U.S.A. some of the collective agreements have provisions for severance pay. In some of Canada's provinces there are statutory provisions for severance pay. See “Employment Terminations” in International Society for Labour Law and Social Security, Vol. 2(Washington, 1982) 176–178, 198–199, 222, 328–329, 501, 645–655, 667Google Scholar.
14 See secs. 14 and 15 of the Severance Pay Law, 1963 which allow a set off of the right to severance pay against payment to a provident fund, pension fund, etc.
15 11 L.S.I. 58.
16 The cogent element is one-way: in a case where the individual contract favours the employee more than the provisions of the collective agreement, and if the collective agreement does not determine otherwise, the individual contract is preferred (sec. 22 of the Law).
17 11 L.S.I. 51.
18 Collective Agreements Law, 1957, supra n. 15, at sec. 19.
19 Civil Wrongs Ordinance (New Version) (2 L.S.I. [N.V.] 5), sec. 62(b).
20 See El Al Air Crews Committee et al. v. Edna Hazin (1973) 4 P.D.A. 365, at 371-372, 377.
21 See Zori Pharmaceutical and Chemical Corp. v. Riks (1973) 4 P.D.A. 477, at 491.
22 See ILO Termination of Employment Recommendations 1963 and Termination of Employment Convention No. 158, 1980; the right to job security was, for instance, introduced by statute in Italy in 1966, in the U.K. in 1971, in France in 1973, and in Sweden in 1974; International Society for Labour Law and Social Security, Vol. 2, supra n. 13.
23 Israel Chamber Orchestra v. Shazar (1981) 12 P.D.A. 355; Salman Salman v. The Histadrut (1974) 5 P.D.A. 449.
24 25 L.S.I. 11. See Zori Pharmaceutical and Chemical Corp. v. National Labour Court et al. (1974) 28(i) P.D. 372; The Histadrut v. National Labour Court and Salman Salman (1978) 32(i) P.D. 819, at 825. And compare Salman Salman v. National Labour Court and the Histadrut (1976) 30(i) P.D. 495.
25 Sec. 2 of Civil Wrongs Ordinance (New Version), supra n. 19, the definition of “employer” and “employee”. For many years this was the central, or only, test of labour relations: Agoshavitz v. Futterman (1951) 5 P.D. 4; Yanai v. Mansfeld (1969) 23(i) P.D. 501, at 504; Sebag v. State of Israel (1970) 24(ii) P.D. 70, at 71.
26 Netanya Municipality v. Berger, supra n. 9. See also, Stevenson Gordon and Harrison Ltd. v. McDonald (1952) T.L.R. 101.
27 Harpaz v. Wage Commissioner et al. (1963) 17 P.D. 2581; Nimitz v. Meshulam Brothers (1970) 24(i) P.D. 107.
28 Chibutru v. Atelka (1973) 4 P.D.A. 173; Silashi v. Architect Aaron Doron et al. (1978) 10 P.D.A. 32.
29 Netanya Municipality v. Berger, supra n. 9.
30 Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention 1949 (No. 98). See also, Markovitch Leon et al. v. The Histadrut et al. (1975) 6 P.D.A. 197; The Histadrut v. Tel Aviv Municipality (1980) 12 P.D.A. 52.
31 See Markovitch Leon, supra n. 30, at 208; Reuven Geua v. Central Supervisory Committee of the Histadrut (1975) 7 P.D.A. 253, at 265; Raday, , “Trade Unions—Privileges and Restraints” (1983) 9 Iyunei Mishpat 543Google Scholar; Mironi, , “The Duty of Fair Representation — Court Protection of Individual Workers and Minority Groups against their Unions” (1981/1982) 8 Iyunei Mishpat 183Google Scholar; Raday, , “Administrative and Judicial Control of Trade Unions — Towards a Law of Trade Union Governance”, in Israeli Reports to the 11th International Congress of Comparative Law(Hebrew University, Jerusalem, 1982)Google Scholar.
32 It should be mentioned that the Court refused to adopt the American doctrine of the obligation of fair representation. However, the Court did impose this responsibility by alternative means — according to the principles of administrative law, and by interpreting the contracts of membership in the trade unions. See Guy Herut v. National Labour Court (1977) 31(iii) P.D. 124; see also, Raday, “Administrative and Judicial Control of Trade Unions — Towards a Law of Trade Union Governance”, supra n. 31.
33 Re the Hebrew University (1973) 5 P.D.A. 115Google Scholar.
34 See Electric Wire and Cable Company Ltd. Works Committee v. Israel Electric Wire and Cable Company Ltd. (1972) 4 P.D.A. 122, at 134; Reuven and Shimon v. State of Israel (1975) 7 P.D.A. 120; The Histadrut v. Farmers' Union 3 P.D.A. 253.
35 See The European Social Charter, Article 6, by Vaiticos, , “Droit International du Travail”, in Traite de Droit du Travail, Camerlynck, G.H., ed. (1970) 274Google Scholar.
36 For a strike whose motives were political and not economic, and so not a recognized act in collective bargaining and labour law, see Hativ v. National Labour Court (1986) 40(i) P.D. 673.
37 See Ginstler v. State of Israel (1976) 8 P.D.A. 3; Workers Council Ramat Gan v. Elko (1977) 9 P.D.A. 113. Compare Baruch Kozolovitz et al. v. Ordan Ltd. (1981) 12 P.D.A. 200; see also, Raday, , “Rights and Interests — A Troublesome Distinction Reviewed in the Context of Labour Arbitration and Industrial Action” (1980) 15 Is. L.R.496, at 520–524Google Scholar.
38 See Markovitch Leon, supra n. 30; Shitreet v. Masperot Israel (1973) 4 P.D.A. 337; El Al Maintenance Workers Committee v. El Al Ltd. (1972) 3 P.D.A. 393; Histadrut of Nurses v. State of Israel (1972) 4 P.D.A. 85; Ports Authority v. Executive Committee of the Histadrut (1978) 9 P.D.A. 281; and see, Raday, “Trade Unions — Privileges and Restraints”, supra n. 34.
39 Settlement of Labour Disputes (Amendment No. 2) Law, 1972 (26 L.S.I. 77).
40 See Raday, , “Adjudication of Interest Disputes—The Compulsory Arbitration Model” (Harry Sacher Institute for Legislative Research and Comparative Law, Faculty of Law, The Hebrew University of Jerusalem, 1983)Google Scholar.
41 Sec. 37A of the Law, supra n. 39.
42 See Raday, , “The Unprotected Strike” (1977) 12 Is.L.R. 86CrossRefGoogle Scholar.
43 1 L.S.I. 7.
44 See Mironi, , “Back-to-Work Emergency Orders: Government Intervention in Labour Disputes in Essential Services” (1986) 15 Mishpatim 350Google Scholar.
45 Limitations on the right to strike should be accompanied by imposing on the employer the obligation to refer disputes to arbitration. See Raday, supra n. 40.
46 For instance, in the postal and communication services (K.T. (1969) no. 2403, p. 1596), the geological institute (K.T. (1979) no. 3975, p. 1091), and the Ministry of Education (K.T. (1979) no. 4043, p. 146).
47 Mironi, supra n. 44, at 386.
48 29 L.S.I. 215.
49 See explanation in H.H. no. 1188, p. 324.
50 Miller v. Minister of Transport (1961) 15(iv) P.D. 1989; Laviv v. Minister of Finance (1970) 24(ii) P.D. 313; and see Shalev, , “Release of the State from Contracts”, in The Sussman Book: Essays in Memory of Justice Yoel Sussman (Jerusalem, 1984, in Hebrew) 159Google Scholar.
51 Tel Aviv Municipality v. Gafni, decision given on 16.5.88; the municipality was obligated by virtue of emergency orders to make cut backs to its budget by dismissing employees. The Court was of the opinion that the municipality was entitled, due to organizational restraints, to infringe workers' conditions, thus, according to the municipality, reducing the number of dismissals. See also State of Israel v. David Metzger (1987) 19 P.D.A. 237, at 241.
52 The Histadrut v. El Al (1982) 14 P.D.A. 128. Similar problems in the U.S.A. led to the passing of the New Bankruptcy Act in 1984. This law affords real protection to collective agreements during winding up proceedings.
53 S.H. no. 1134, p. 32.
54 K.T. (1985) no. 4830, p. 1612.
55 Supra n. 48.
56 Regulation No. 82.272 of the Takshir.
57 It should be pointed out that the provisions for dismissal in the Takshir cannot be enforced: Civil Service Employees Union and Workers' Council Nazareth Elite v. State of Israel (1981) 12 P.D.A. 182, at 191. Nonetheless, public employers should honour such arrangements contained in the Takshir since ignoring them involves an infringement of rules of the game in labour relations in the public sector.
58 S.H. no. 1139, p. 60.
59 S.H. no. 1245, p. 58.
60 S.H. no. 1208, p. 48.
61 S.H. no. 1211, p. 68.
62 S.H. no. 1240, p. 38.