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Rights and Interests — A Troublesome Distinction Reviewed in the Context of Labour Arbitration and Industrial Action
Published online by Cambridge University Press: 12 February 2016
Extract
It would seem particularly appropriate following the tribute which appeared in the previous issue of the Israel Law Review, to commence our excursion into Israeli labour law with one of Otto Kahn-Freund's thought-provoking observations.
“Over a large area of British industrial relations, the rule-making and the decision-making processes, the, as it were, ‘legislative’ and ‘judicial’ functions are as indistinguishable as they were in the Constitution of medieval England. … And just as in the common law the judge is rule-maker and decision-maker all at once, so in the dynamic system of collective bargaining the parties ignore the difference between interpreting an old rule and making a new one.” Thus, in England, as Professor Kahn-Freund points out, the almost universally accepted distinction between disputes of rights and disputes of interests is not considered relevant.
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References
1 Kahn-Freund, , Labour and the Law (2nd. ed., 1977) 54–55.Google Scholar
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8 Kahn-Freund, op. cit. at 54 note 13.
9 See, for instance, Russell on Arbitration (18th ed., 1970) 23. Wedderburn, , “Conflicts of ‘Rights’ and Conflicts of ‘Interests’ in Labour Disputes”, in Aaron, , ed., Dispute Settlement Procedure in Five Western European Countries (1969) 65.Google Scholar
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11 No position is taken in the context of this paper as to the advantages or disadvantages of entrusting collective disputes to the judicial instance. See Schmidt, “Decision-Making in Labour Disputes” at p. 60; and Ramm, Thilo, “Labour Courts” at p. 23 in Aaron, , ed., Dispute Settlement Procedure in Five Western European Countries (1969).Google Scholar
12 Thilo Ramm, “Labour Courts”, op. cit., supra n. 11 at 15.
13 Collective Agreements Law, 1957, 11 L.S.I. 58, sees. 15, 16, 19. Labour Courts Law, 1969, 23 L.S.I. 76.
14 Electric Wire and Cable Co. Works Committee v. Israeli Electric Wire and Cable Co. (1972/73) 4 P.D.A. 122, at 134; Hebrew University Jerusalem v. Union of Lecturers, Instructors, Assistants of the Hebrew University, Jerusalem (1973/74) 5P.D.A. 115 at 131.
15 Thilo Ramm, “Labour Courts and Grievance Arbitration in West Germany”, op. cit., at 138; Guigni, , “The Peace Obligation”, in Aaron, & Wedderburn, , eds., Industrial Conflict — A Comparative Legal Survey, (1972) 135Google Scholar; Schmidt, , Law and Industrial Relations in Sweden (1977) 24.Google Scholar
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17 Wedderburn, ibid. at 88–89.
18 1957.
19 See below text at notes 84–85.
20 Bernini, , “Les techniques permettant de résoudre les problèmes qui surgissent lors de la formation et de l'exécution des contrats à long terme” (1975) Revue de l'Arbitrage 18.Google Scholar
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22 Durand writes that, in France, the courts have developed a liberal doctrine of force majeure in order to release collective agreement parties from obligations which have become unduly arduous: “En droit commun, la force majeure suppose une impossibilité absolue d'exécution, et les difficultés, même graves, rencontrées dans l'exécution d'un contrat, ne motivent pas l'application des règles sur la force majeure. La rigueur du principe a été atténuée dans le droit des conventions collectives”: Traité de Droit du Travail (Dalloz, 1956) 504. Neumann writes of a right of dénonciation extraordinaire which, though controversial, is accepted by the weight of opinion in Germany, “en cas de rupture de la convention, de changement de situation ou de disparition de la base de la convention”: “Allemagne”, in Droit du Travail, Jura Europae (Beck Thurich, Editions Techniques Juris-Classeurs, Paris 1974) Vol. 1,10. 50–32, para. 95.
23 See Despax, Conventions Collectives, in Camerlyneck, , ed., Traité de Droit du Travail (Dalloz, 1966) 198–201Google Scholar; Bernini, op. cit. at 18 ff.
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25 General (Basic) Collective Agreement signed 21 Aug. 1975 (Registered no. 7030/75); General Collective Agreements have since been signed (Registered no. 7008/76) at approximately six month intervals implementing the level of indexation and the salary ceiling to which they apply. The latest of these agreements was signed on 19 March 1980. A new General (Basic) Collective Agreement was signed on 19 March 1980, setting out principles for determination of the cost-of-living increments 1980–1982.
26 1976, 2208 Official Gazette 1518; 1978, 2419 Official Gazette 1328; 1976, 1292 Official Gazette 2027.
27 Hebrew University Jerusalem v. Union of Lecturers, Instructors, Assistants of the Hebrew University Jerusalem (1973/74) 5 P.D.A. 115.
28 At 132–133.
29 See also the policy of the Voluntary Arbitration Commission text below at notes 51–52.
30 Thus State of Israel et al. v. Histadrut of Teachers in Israel et al. (1979/80) 11 P.D.A. i.
31 United States: Morris, op. cit., at 340–341; NLRB v. Jacobs Mfg. Co. 196 F. 2d. 680, 684; Germany: Guigni, , “The Peace Obligation” in Aaron, and Wedderburn, , eds., Industrial Conflict — A Comparative Legal Survey (1972) 131–133.Google Scholar
32 Hebrew University Jerusalem v. Union of Lecturers, Instructors, Assistants of the Hebrew University, Jerusalem (1973/74) 5 P.D.A. 115 at 131. Italics by author.
33 The Settlement of Labour Disputes Law, 1957 (11 L.S.I. 51) sec. 22 also apparently contemplates the possibility of disputes of interests arising during the course of a collective agreement where the agreement “provides no solution to the issue.” See below text at notes 49–50.
34 See The Histadrut, Histadrut of Academics in the Arts and Social Sciences v. State of Israel et al. (1977/78) 9 P.D.A. 425, 438.
35 State of Israel v. The Histadrut and Histadrut of Engineers (1976/77) 8 P.D.A. 225, 233. The recommendations of the Barkai Committee on the right of engineers to academic increments, accepted in advance by the collective bargaining parties as binding on them, left open several alternative ways of awarding increments. Upon a request for interpretation by the State, as employer, the National Labour Court interpreted the recommendations as imposing a duty to bargain in good faith with regard to the proper method of awarding increments. See also The Histadrut et al. v. Bank of Israel (1973/74) 5 P.D.A. 493, 499, Bank Hapoalim Inc. v. David Ben Zion (1975/76) 7 P.D.A. 197, 203–205; National Works Committee of the Health Ministry v. State of Israel (1975/76) 7 P.D.A. 281, 290–292; The Histadrut and Defence Ministry Employees’ Union v. State of Israel (1977/78) 9 P.D.A. 41, 51–52.
36 Histadrut of Engineers v. State of Israel (1977/78) 9 P.D.A. 323. The engineers (see n. 35) returned to the Court claiming that the State had not conducted good faith negotiations. The Court held that good faith negotiations precluded adoption at their commencement of a non-negotiable stance. However in the case on hand there had been good faith negotiations and subsequent agreement by the State to bestow the same increments on employees other than the engineers did not detract from their quality as such.
37 The Histadrut v. Bank of Israel (1976/77) 8 P.D.A. 271, 278. The parties had in their collective agreement of 1957 agreed to make a further agreement establishing a pension-fund and they failed to do so. The question arose as an incidental question in The Histadrut et al. v. Bank of Israel (1973/74) 5 P.D.A. 493, 499 and the Court suggested that the parties collective bargain in good faith to establish the pension scheme. In the later case, in 1976, the Court held that the parties had indeed bargained in good faith and having failed to agree on the kind of pension scheme which should be established there was now an economic dispute between them on that question.
38 This approach could possibly explain the decision in Reuven and Shimeon v. State of Israel (1975/76) 7 P.D.A. 120. The National Labour Court found that the dispute between the collective bargaining parties as to rights to sabbatical, to which the employees claimed they were entitled under the 1964–1966 collective agreements was an economic dispute. The dispute arose in the context of negotiations towards renewal of the 1964–1966 agreements. On the face of it, it could be argued that this was a legal dispute, either as to the interpretation of the 1964–1966 agreements or as to the duty to collective bargain in good faith on the inchoate provisions of those agreements. However, alternatively, the decision that the dispute was an economic dispute could perhaps be explained on the basis that the employees' claims for sabbatical rights could no longer be regarded as legally enforceable rights where they were derived from a defunct collective agreement which may create a historically but not a legally significant source of rights and duties.
39 Collective Agreements Law, 1957, secs. 13, 14.
40 Russell on Arbitration, op. cit., supra n. 9 at 23; Bernini, op. cit., supra n. 20 at 25.
41 Arbitration Law, 1968 (22 L.S.I. 210) sec. 1; Settlement of Labour Disputes Law, 1957, sec. 15.
42 In England, France, West Germany and Italy it is unknown: see Aaron, , ed., Labour Courts and Grievance Settlement in Western Europe, op. cit., at 8–11Google Scholar, 45, 72, 76, 78, 94, 138, 287–288. In Sweden, the Association of Newspaper Employees and the Printers' Union have made a collective agreement whereby they undertake to refer unsettled interest disputes to arbitration for a ten year period: Schmidt, “The Settlement of Employment Grievances in Sweden”, in Aaron, ed. (above), at 236–238. In the United States in 1966 fewer than 2% of major collective agreements provided for interest arbitration of new contract terms but there is a growing interest in voluntary interest arbitration as a method of settling interest disputes: “Interest Arbitration and the NLRB: A Case for the Self-Terminating Interest Arbitration Clauses” (1977) 86 Yale Law Journal 715, 716 note 3, 717 note 6. The outstanding example of voluntary interest arbitration is the Experimental Negotiating Agreement Between the United Steelworkers of America and the Coordinating Committee Steel Companies 1974 and 1977: Morris, , “The Role of Interest Arbitration in a Collective Bargaining System” (1976) 1 Industrial Rel. L.J. 427.Google Scholar
43 Memorandum — General Collective Agreement, signed 13 Feb. 1976, registered no. 7002/76, clause 17.
44 Collective agreement concerning the establishment of a Voluntary Arbitration Commission, signed on 7 Feb. 1977, registered no. 107/77. Extended by collective agreement on 20 July 1978, registered no. 491/78.
45 Article 4 of the collective agreement of 20 July 1978, registered no. 491/78.
46 Article 4 (a); in the case of disputes of rights referral to arbitration must be by mutual consent.
47 See, re the problem in the U.S.: “Interest Arbitration and the NLRB: A Case for the Self-Terminating Interest Arbitration Clause” (1977) 86 Yale L.J. 716.
48 Loewenberg, “Compulsory Arbitration in the United States”, in Loewenberg, et al. ,Compulsory Arbitration (1976) at 161.Google Scholar
49 The word “shall” is translated in the Laws of the State of Israel as “may”; however that translation is clearly incorrect.
50 It has been suggested in legal circles that only where there is no collective agreement, can the Board decide in accordance with “justice and fairness”; this interpretation would in effect exclude the jurisdiction of the Board to arbitrate upon interests disputes during the currency of a collective agreement, since the Board can de termine only disputes of rights by reference to legal sources. This interpretation seems to be incorrect since (a) the language of sec. 22 does not justify it and (b) the legislature contemplates the occurrence of economic disputes during the currency of a collective agreement and hence would not negate jurisdiction to arbitrate such disputes. (See further below text at notes 84–85.)
51 Berenson, , “The Voluntary Arbitration Commission and its Operation” (1977) Labour and National Insurance Review 80 (in Hebrew).Google Scholar
52 Ibid., at 81.
53 11 L.S.I. 57, sec. 15.
54 22 L.S.I. 210.
55 The Histadrut et al. v. The Farmers' Association (1971/72) 3 P.D.A. 253; Works Council of Kiryat Shmona v. Hula Development Authority Incorp. (1972/73) 4 P.D.A. 330; Orlovsky v. State of Israel (1977/78) 9 P.D.A. 148.
56 (1956) 256 H.H. 58, 62; 19 Divrei HaKnesset 906–907. The Histadrut et al. v. The Farmers’ Association (1971/72) 3 P.D.A. 253, 267.
57 Ibid., at 268.
58 See above text at notes 49–50.
59 Reuven and Shimeon v. State of Israel (1975/76) 7 P.D.A. 120.
60 Ibid., at 135.
61 Ibid., at 135, 139–141.
62 Plonim v. The National Labour Court (1975) (III) 29 P.D. 382; the decision was made in the context of an application to Bagatz against the decision of the National Labour Court in the Reuven and Shimeon Case, supra n. 38. While the High Court of Justice did not reverse the decision of the National Labour Court, it rejected the reasoning given by the National Labour Court for its decision. Ottolangi, , Arbitration: Law and Practice (1973, in Hebrew) 25Google Scholar: the author interprets sec. 3 as signifying that “any dispute which can be a subject for agreement between the parties may be referred to arbitration under the Law”.
63 At 388.
64 The Histadrut v. The Bank of Israel (1976/77) 8 P.D.A. 271; see above text at note 19. See also, Orlovsky v. State of Israel (1977/78) 9 P.D.A. 148, 152, 153.
65 At 279.
66 The Histadrut v. State Attorneys Association (1979/80) 11 P.D.A. 157, 164, 165, 167: “…the word ‘arbitration’ should be given its proper legal meaning, that is arbitration under the Arbitration Law, and not arbitration in an economic dispute” (at 165).
67 ibid., at 165, 167.
68 Collective Agreement Covering the Establishment of a Voluntary Arbitration Commission signed on 7 Feb. 1977. (Registered no. 107/77), 20 July 1978 (Registered no. 491/78) Clause 9 (2).
69 In this case there was an application by the Histadrut to cancel an arbitral award given by the Voluntary Arbitration Commission in an economic dispute. The Court's remarks were obiter since the application was summarily dismissed for lack of jurisdiction under sec. 28 of the Labour Courts Law.
70 Sec. 31(c) of the Law provides: “An arbitration award shall have the effect of a contract or of a collective agreement, as the case may be, between the parties to the arbitration …”.
71 Collective Agreements Law, 1957, sec. 1; see, Israel, Ben, The Collective Agreement (1977) 98.Google Scholar
72 Sussmann, , Arbitration Law (2nd ed., 1962, in Hebrew) sec. 149Google Scholar: “A heavy burden is imposed on the party who requests the cancellation of an arbitration award; the court will always favour the enforcement of the award …”.
73 Freedom to Organise and Collective Bargain Convention (No. 98) 1949, sec. 4.
74 Ibid., Valticos, , “Droit International du Travail,” in Camerlyneck, , ed., Traité de Droit du Travail (1970) 269Google Scholar, Bar Niv, International Labour Law (1969, in Hebrew) 115.
75 Sykes, and Glasbeck, , Labour Law in Australia, op. cit., supra n. 3 at 609–614.Google Scholar
76 Isaac, Deputy President of the Australian Conciliation and Arbitration Commission, “Industrial Conflict and Resolution: the Australian Experience”, unpublished articleGoogle Scholar; Seidman, , “New Zealand's Industrial Relations Act, 1973” (1974) 110 International Labour Review, 515, 521Google Scholar; Loewenberg, “Compulsory Arbitration in the United States”, op. cit., at 161. Glasbeck, , “Compulsory Arbitration in Canada”, in Loewenberg, et al. , Compulsory Arbitration (1976) 62.Google Scholar
77 E.g., Australian Commonwealth Conciliation and Arbitration Act, 1906, sec. 28.
78 E.g. United States FSLMERL 5 USC 7119 (b) (5) (c).
79 Kahn-Freund, op. cit., supra n. 1 at 115.
80 30 Divrei HaKnesset 461; 33 Divrei HaKnesset 1304; 41 Divrei HaKnesset 249; 45 Divrei HaKnesset 1335; 46 Divrei HaKnesset 2241; 57 Divrei HaKnesset 1947; 60 Divrei HaKnesset 2269; 61 Divrei HaKnesset 2839; 61 Divrei HaKnesset 3481; 61 Divrei HaKnesset 3032; 67 Divrei HaKnesset 3561; 75 Divrei HaKnesset 148; 76 Divrei HaKnesset 1681; 78 Divrei HaKnesset 894; 78 Divrei HaKnesset 916; 78 Divrei HaKnesset 917. The most recent Compulsory Arbitration Bill, now lying before the Knesset, is that of M.K. Sharir: Essential Services Labour Relations Bill, 1977.
81 See particularly for ideological arguments: 34 Divrei HaKnesset 2889, 2944; 35 Divrei HaKnesset 144; 46 Divrei HaKnesset 2243; for discussion of the failure of compulsory arbitration in “curing” strikes, see 67 Divrei HaKnesset 3566.
82 Australia: see Walker, , “Compulsory Arbitration in Australia” in Loewenberg, et al. , Compulsory Arbitration (1976) at 1Google Scholar and cf. New Zealand: Smith, , “Developments in Worker's Participation in New Zealand” (1979) 21 Journal of Industrial Relations 35, 37, 38.CrossRefGoogle Scholar United States: See Wasserman, “Collective Bargaining Services of American Fed. of State County and Municipal Employees”, lecture delivered at Tel Aviv Conference on Settlement of Labour Disputes in the Public Sector, not yet published; United Kingdom: see Kahn-Freund, , Labour and the Law, op. cit., supra n. 1 at 119–120Google Scholar; France: see Blanc-Jouvan, , “Settlement of Labour Disputes in France” in Aaron, , ed., Labour Courts and Grievance Settlement in Western Europe (1971) 60.Google Scholar
83 Ofek et al. v. Min. of Interior et al. (1978) (III) 33 P.D. 480.
84 Sec. 37 E of the Settlement of Labour Disputes Law provides: “A collective agree ment applying to a public service shall be deemed to contain the provisions set out in the Schedule in respect of any dispute for the decision of which it does not otherwise provide.” The Schedule to sec. 37 E provides for the convening of a parity committee to decide upon the dispute at the request of one of the parties to it; on the failure of the parity committee either to convene or to reach a decision, the dispute will be subject to compulsory arbitration at the request of either party.”
85 See Skoritz, Insurance Co., Inc. et al. v. Kaplan (1975/76) 7 P.D.A. 13, 22. The Explanatory Note on the Bill (1972) 23 H.H. 63, 66, purports to extend existing “accepted” disputes settlement procedures in collective agreements to agreements which do not contain such provisions. Since the term used at that stage was “labour dispute” it seems that the intention was to extend “accepted” interests disputes settlements procedures. Since there may be some argument as to whether such procedures were “accepted” in collective agreements at that time, in 1972, the Explanatory Note reveals a failure to analyse fully the two different kinds of disputes with regard to which they were imposing compulsory arbitration.
86 Collective Agreements Law, 1957, sec. 13.
87 See above text at n. 39 ff.
88 Thus under the ILO Conventions No. 87 of 1948, and No. 98 of 1949, the right to organise and collective bargain has been taken to imply a right to strike: Valticos, op. cit., supra n. 74 at 267; Bar Niv, op. cit., supra n. 74 at 113.
89 Ibid.
90 Article 6; see Valticos, op. cit., at 274.
91 See Aaron, “Methods of Industrial Action by Employees and Unions” in Aaron, & Wedderburn, , eds., Industrial Conflict — A Comparative Legal Survey (1972) 83–87.Google Scholar
92 Blanc-Jouvan, “The Effect of Industrial Action on the Status of the Individual Employee”, ibid., at 222–227; “Nowhere is there a general statutory provision recognising a right to lockout or a liberty to lockout as there are concerning the right to strike or the liberty to strike”. However in Sweden the lockout and the strike are regarded as correlative weapons. See also Schmidt, , Law and Industrial Relations in Sweden (1977) 160 ff.Google Scholar
93 Thus France and Italy: Blanc-Jouvan, ibid., at 225–227. There are differing views as to the situation in Germany: Prof. Blanc-Jouvan states that “the prevailing opinion is the equivalence of the strike and the lockout. … These principles therefore give to the employer the possibility of resorting freely to the lockout, even to the offensive lockout, just as the union can freely resort to the strike”, ibid., at 223–224; the National Labour Court, however, draws different conclusions: “In the direct recognition of the possibility of imposing a lockout on a plant, as a defensive measure in a struggle between the collective bargaining parties — the German case law goes further than any other country in Western Europe, the Common Market.”: Ginstler v. State of Israel (1976/77) 8 P.D.A. 3, 20. In the U.S., only certain kinds of offensive lockout are regarded as legitimate, while the defensive lockout is considered legitimate per se; Morris, , The Developing Labour Law (1971) 544, 556.Google Scholar
94 In the Supreme Court in 1971 the strike was referred to as “a sacred tradition which is beyond the realms of examination.” Finstein v. Secondary School Teachers' Union (1971) 25 P.D. 129 at 131, per Cohn J. For development of the concept of the liberty to strike in the Labour Courts see below text at notes 144–145.
95 Collective Agreements Law, 1957, sec. 19; Torts Ordinance, New Version, sec. 62(b).
96 Electric Wire and Cable Co. Works Committee v. Israeli Electric Wire and Cable Co. (1972/73) 4 P.D.A. 122, 134.
97 Hebrew University Jerusalem v. Union of Lecturers, Instructors, Assistants of the Hebrew University, Jerusalem. (1973/74) 5 P.D.A. 115, 131.
98 It should be noted that, in the public sector, the Histadrut has agreed to waive the right to strike on economic disputes: Collective Agreement concerning the establishment of a Voluntary Arbitration Commission signed on 7 Feb. 1977 regd. no. 107/77; 20 July 1978, regd. no. 491/78. Clause 13(a). See above text at notes 45–46. The public employer also waived the right of lockout under the agreement but, as we have seen, the waiver is not significant as there is no right of economic lockout in Israel. In The Histadrut v. Kitan (Dimona) Incorp. (1979/80) 11 P.D.A. 29, 40: the Court suggested a possible further limitation on the right of strike and lockout — that neither should be used except as a “last resort”.
99 It should of course be remembered that the dispute will not be a dispute of interests if there is, in the agreement, a duty to collective bargain on the dispute (see above text at note 35–37), or if there is a dispute settlement procedure which includes interest disputes: The Technion et al. v. The Histadrut et al. (1975/76) 7 P.D.A. 313, 324.
100 Shina v. Paglin (1972/73) 4 P.D.A. 458, 465; Ginstler v. State of Israel (1976/77) 8 P.D.A. 3, 19, 24; Works Council, Ramat Gan and Givatayim v. “Elko” Incorp. (1977/78) 9 P.D.A. 113, 134; The Histadrut v. Kitan (Dimena) Incorp. (1979/80) 11 P.D.A. 29, 39.
101 Works Council, Ramat Gan and Givatayim v. “Elko” Inc. (1977/78) 9 P.D.A. 113, 134.
102 Ibid., at 134–136, 143.
103 For discussion of additional restrictions on the right to lockout in the public services, see Raday, , “Partial Strikes — A Medley of Solutions”, (1980) 10 Mishpatim 279, 296–301.Google Scholar
104 Blanc-Iouvan, op. cit., supra n. 92 at 224, n. 47.
105 Shina v. Paglin (1972/73) 4 P.D.A. 458, 467.
106 He must however give notice that he sees even a fixed term collective agreement as terminated: Collective Agreements Law, 1957, sec. 13.
107 Gelblum v. National Theatre Trust “HaBima” (1974/75) 6 P.D.A. 309, 313, 315; Zim, Israel Shipping Co. v. Neeman (1978/79) 10 P.D.A. 225, 242; Ada Sharbani v. State of Israel (1978/79) 10 P.D.A. c. Discussion of the legal basis for recognising the power of the employer to change contract terms unilaterally is beyond the scope of this article.
108 See Histadrut v. Kitan (Dimona) Incorp. (1979/80) 11 P.D.A. 29,40.
109 There is an argument made in favour of the lockout that the employers in Israel are not sufficiently strong to cancel their collective agreements with the Histadrut and with their employees individually. However such an argument would most certainly undermine the utility of an economic lockout as well, for a weak employer will be no more capable of staging an effective economic lockout than he is capable of cancelling his collective agreement.
110 Penal Law, 1977 (L.S.I. Special Volume): criminal conspiracy, sec. 500; public mischief, sec. 198; offences against the maintenance of public services and transport, sec. 161.
111 See generally Raday, , “The ‘Unprotected’ Strike” (1977) 12 Is. L.R. 86.CrossRefGoogle Scholar
112 Sec. 37A; there is an excepton to this rule which is not of any importance to the present discussion but is included here for the sake of accuracy—a strike taking place, during the currency of a collective agreement, which is “unconnected with wages or social conditions and is declared or approved by the central national governing body of the authorised employees' organisation” is not unprotected.
113 See above text at notes 94, 98–99.
114 Sec. 37A.
115 Sec. 37A.
116 For detailed criticism of these provisions see Raday, “The ‘Unprotected’ Strike” op. cit., 98–106.
117 There are indeed some judicial dicta which appear to render all unofficial strikes unlawful, whether or not they are in pursuit of interests or rights disputes, and whether or not they are in the public services. See, Raday, , The Law of Strikes in Israel (doctoral thesis, Hebrew University, Jerusalem 1974) 197–185Google Scholar; more recently the National Labour Court has left open for determination the question whether an unofficial strike is a “strike” at all.
118 European Social Charter of Human Rights, Article 31; Valticos, op. cit., at 274; Bar Niv, op. cit., at 113.
119 Under sec. 26 of the Defence Service Law (Consolidated Version) 1959 (13 L.S.I. 328). See sec. 16(a) of the Emergency Labour Service Law, 1967 (21 L.S.I. 82).
120 Sec. 17.
121 This is in spite of the fact that the Minister of Defence has activated his powers under sec. 26 of the Defence Service Law (Consolidated Version) 1959 for approximately 2/3 of the past 33 years and has ordered full mobilisation on one occasion since the 1967 Law passed. There is a view that the powers of the Minister of Labour can only be exercised in a full mobilisation. However, sec. 16(a) of the Emergency Labour Service Law, 1967, does not expressly incorporate any such restriction.
122 1 L.S.I. 7.
123 The government has delegated this authority to its Ministers.
124 1260 K.T., 9 Feb. 1962, 1273.
125 During the 12 years between 1962 and 1974 strike-prohibition orders were issued on 10 occasions. In the 6 years between 1974 and 1980 they have been issued on approximately 80 occasions.
126 See exceptionally, 2043 K.T., 19 May 1967, 2422; the regulations were issued on the eve of the Six Day War and were not related to existing strike activity.
127 2726 K.T., 9 Aug. 1971, 1450.
128 4104 K.T., 18 Mar. 1980, 1220.
129 4078A K.T., 18 Jan. 1980, 782A; 2403 K.T., 5 June 1969, 1569.
130 3975 K.T., 1 May 1979, 1091.
131 4043 K.T., 1 Nov. 1979, 146.
132 The question of parliamentary review is beyond the scope of this article; see Klinghoffer, , “Emergency Regulations in Israel”, in Cohn, , ed., Commemorative Book for P. Rosenne (1962) 96–99.Google Scholar
133 National Works Committee of the National Insurance Institute et al. v. Minister for Labour and Welfare (1979) (II) 33 P.D. 449, 451–52.
134 However Sussmann J. explains that the derived jurisdiction of the Labour Courts will be adequate to give a remedy on the strike-prohibition orders; ibid.
135 Ibid., per Landau J. at 452.
136 Bar Niv, op. cit., supra n. 74 at 113; see generally Rossiter, , Constitutional Dictatorship: Crisis Government in the Modern Democracies (1948, 1963 reprinted) 125 ff.Google Scholar