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The Law of Labour Disputes

Published online by Cambridge University Press:  12 February 2016

Itzhak Zamir
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Extract

A few years ago a Supreme Court Justice remarked that in Israel the strike was a sacred tradition. Indeed it was. But now, it is more often regarded as a nuisance. This change of attitude has been reflected in the law.

In this country, as in some other countries, the law concerning labour disputes has swung back and forth during the years like a pendulum: from severe restrictions under the Ottoman Empire, through de facto recognition during the British mandatory period, to a privileged status after the establishment of the State of Israel. True, even after the establishment of the State, the right to strike has not been expressly guaranteed by any statute. But in this respect, it is not different from other basic rights, such as the freedoms of expression or assembly, which are in the nature of common law rights. In fact, it fares better, since other rights are subject under various statutes to substantial restrictions. Only the right to strike was left virtually free from such legal restraints. One might be led to believe that to the socialist leaders of the country, most of whom rose to the Government from the ranks of the trade union movement, the right to strike was dearer than other civil liberties. During the first twenty years of the State, on the few occasions on which the legislature touched upon the right to strike, it only acted to protect it. Most conspicuous is the provision that a strike shall not be regarded as breach of a personal obligation on the part of the individual employee.

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Articles
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Israel Law Review , Volume 9 , Issue 4 , October 1974 , pp. 548 - 557
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1974

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References

1 Feinstein v. Secondary School Teachers' Union (1971) (I) 25 P.D. 129, 131, per H. Cohn J.

2 Collective Agreements Law, 1957, sec. 19 (11 L.S.I. 58). See further on the protection given to strikers under various statutes, Zamir, I., “Labour and Social Security” in Studies in Israel Legislative Problems, Tedeschi, G. and Yadin, U. (eds.), 16 Scripta Hierosolymitana (Magnes Press, Jerusalem, 1966), 298 at 314.Google Scholar

3 See Zamir, I., “The Suspension and Interruption of the Employment Contract” in Israel Reports to the Eighth International Congress of Comparative Law, Feller, S. Z. (ed.) (Institute for Legislative Research and Comparative Law, Jerusalem, 1970), 132 at 142.Google Scholar

4 On the Histadrut, the full name of which is The General Federation of Workers in Israel, see Safran, N., The United States and Israel (Cambridge, Mass., 1963) 127–146CrossRefGoogle Scholar; Plunkett, M. L., “The Histadrut: the General Federation of Jewish Labour in Israel” (1958) 11 Industrial and Labour Relations Review 155–182.CrossRefGoogle Scholar

5 Such a committee has two distinct functions. First, it deals with disputes over future rights, commonly called conflicts of interests or economic conflicts. Here it serves as a forum for negotiations between the two parties. In its second function the committee deals with disputes over existing rights, that is, conflicts of rights or legal conflicts. In this capacity the committee may be acting as a domestic tribunal, determining rights of individual employees, and in such a case it is bound to give a hearing to the employee concerned. So it was decided by the National Labour Court in Tel-Aviv Municipality v. Sa'an (1971) 3 Labour Courts Reports 160.Google Scholar

6 Some collective agreements provide that where a regional committee does not reach an agreement, the dispute is to be brought before another bi-partite committee, one central to the trade concerned, before it may be referred to arbitration.

7 The arbitration is generally held under the general Arbitration Law, 1968 (22 L.S.I. 210). However, in certain cases, it may be held, if the parties so choose, under the arbitration provisions of the Settlement of Labour Disputes Law, 1957 (11 L.S.I. 51). See infra n. 11.

8 11 L.S.I. 51. For details of this Law, see U.S. Department of Labour, Labour Law and Practice in Israel, BLS Report No. 315, 1967, pp. 61–62.Google Scholar

9 But see amendments to this Law, text to n. 15 infra.

10 The Settlement of Labour Disputes Law, 1957, empowers the Chief Labour Relations Officer to summon any person to give evidence or produce documents in his possession, to require the parties to give reasoned answers to the arguments of the other party and to the proposals for the settlement of the dispute, to examine the economic position and any account books of the undertaking concerned, and to impose fines for disobedience to his orders (sees. 7, 8). In practice, however, these enforcement powers have remained virtually dormant.

11 For example, in 1964 the Department for Labour Relations in the Ministry of Labour, which is in charge of the conciliation service, initiated conciliation proceedings in collective disputes in 51 cases upon the request of one or both parties to the dispute, and in 2 cases upon its own initiative; in only 13 of these cases did the conciliation efforts bring about an agreement; and, in comparison, in that year there were 134 strikes. The corresponding figures for 1965 were: the Department initiated conciliation proceedings in 41 cases upon a notice received from the parties and in 6 cases upon its own initiative; the conciliation efforts ended in agreement in only 6 cases; and the number of strikes for that year was 277. See (April, 1966) Labour and National Insurance (Monthly Review of the Ministry of Labour in Israel, in Hebrew, hereinafter referred to as Labour and National Insurance) 122, and ibid. (June, 1966) at p. 185.

In addition to conciliation, the Settlement of Labour Disputes Law makes provision for arbitration in Labour disputes. Arbitration may be resorted to under this Law in one of two cases: first, where the parties to the dispute have so chosen; or, second, where a collective agreement provides for arbitration, but the parties cannot agree upon the name of the arbitrator, or where the arbitrator appointed by the parties does not conclude the arbitration within a reasonable time. In such a case, the Chief Labour Relations Officer shall, upon notice received from either party to the dispute, appoint arbitrators who should proceed under the provisions of the Settlement of Labour Disputes Law. These provisions vary substantially from those of the Arbitration Law, 1968. However, in practice the parties to collective agreements have usually preferred arbitration under the Arbitration Law. In consequence, the influence of the Settlement of Labour Disputes Law on labour relations through arbitration has been even less than that gained through conciliation. Recently the potential utility of this Law has been further reduced by a decision of the National Labour Court holding that the Law is limited to “conflicts of interests”, and not applicable to “conflicts of rights”. See The His-tadrut v. The Farmers' Association (1971) 3 Labour Courts Reports 253.

12 Under the Law and Administration Ordinance, 1948, (1 L.S.I. 7) a Minister is empowered, under certain circumstances, “to make such emergency regulations as may seem to him expedient in the interests of the defence of the State, public security and the maintenance of supplies and essential services”.

13 For an early example of such regulations see Emergency Regulations (Obligation to Return Aircraft to Israel), (1960) K.T. no. 1028, p. 1459. These regulations, issued during a strike called by the pilots employed by the national airline, empowered the Minister of Transport to order any aircrew member employed by that airline to co-operate in bringing Israeli aircraft back to Israel. The penalty prescribed for disobedience to such an order was one year imprisonment and a fine of IL10,000. The regulations further provided that disobedience might serve as a cause of action for damages on the part of the aircraft owner.

14 Emergency Regulations (Maintaining Postal Services) (1969) K.T. no. 2403, p. 1596; Emergency Regulations (Essential Services in Hospitals) (1971) K.T. no. 2706, p. 1240; Emergency Regulations (Essential Services in Hospitals) (Repeal) (1971) K.T. no. 2718, p. 1402.

15 The Settlement of Labour Disputes (Amendment) Law, 1969 (23 L.S.I. 235). On this Law see Frances Raday, “A Cooling-off Period for Israel” (1971) 6 Is.L.R. 569. The original Law does not make it mandatory for the parties to give notice of the dispute. See supra text at n. 10.

16 A survey by the Ministry of Labour states: “The number of collective disputes in which the Department (for Labour Relations) intervened by conciliation or arbitration increased from 50 in 1968/69, to 161 in 1969/70, and during the first 6 months of 1970/71 the Department received 174 new applications … In 1969/70 and the first half of 1970/71, 274 disputes were terminated … out of those 79 were terminated through conciliation followed by agreement”. See (Jan uary, 1971) Labour and National Insurance 11. Compare figures for 1964 and 1965, supra no. 10.

17 The following are figures from a survey made by the Ministry of Labour: “1970 was a difficult year in labour relations. The number of strikes increased from 114 in 1969 to 16B in 1970. The gravity is more accurately reflected in the number of work days lost by strikes and lockouts: 380,000 in 1970 as against 102,000 in 1969 … This is three times more than the annual average for the last ten years”. See (March, 1971) Labour and National Insurance 128.

18 23 L.S.I. 76. See Zamir, I., “Labour and National Insurance Tribunal Bill, 5728–1967” (1968) 1 Mishpatim 228.Google Scholar

19 (1967) 50 Divrei Haknesset 526.

20 Injunctions could also be issued in connection with strikes by the ordinary courts of law. Indeed, in one instance the Supreme Court gave an injunction against a trade union to prevent it from committing the tort of causing a breach of contract. See Leo Beck School Ltd. v. Secondary School Teachers' Union (1962) 16 P.D. 2205. But that was an exception. It was commonly believed (although perhaps wrongly) that the ordinary courts would not issue injunctions against trade unions calling a strike or, a fortiori, against strikers. The National Labour Court has built up a theory justifying the use of the labour injunction, distinguishing it from an order for specific performance of the employment contract, and yet calling for a discriminate use of it. See especially Shitreet v. Israel Dockyards Ltd. (1973) 4 Labour Courts Reports 337. It appears, however, that in practice the regional Labour Courts employ the injunction rather freely.

21 See Shirom, A., “A Comparative Analysis of Strikes in Ten Industrialized Countries from 1960 to 1969” (October, 1970) Labour and National Insurance 423.Google Scholar

22 See (January, 1971) Labour and National Insurance 11, and ibid. (March, 1972) at p. 105. It may also be noted that many of the strikes, in some years even most of the strikes, were called during the life of the collective agreement. See ibid.

23 Settlement of Labour Disputes (Amendment No. 2) Law, 1972 (to be published in English translation in 26 L.S.I.). The Law is complex and the description given in the text (above) is only in outline.

24 The figures, published by the Institute for Economic and Social Research of the Histadrut, are the following: 272,000 work days were lost to strikes during the first half of 1973, compared to 200,000 workdays lost during the whole of 1972. See Ha'aretz, July 26, 1973.

25 In 1972 there were over 100,000 work accidents, as a result of which about 3,500,000 work days were lost. See (March, 1973) Labour and National Insurance 82. Compare supra n. 24.

26 What should be considered excesses of the right to strike is a most difficult question, the answer to which varies with ideology, time and circumstances. The only safe answer is a formal one: that the limits of the right are those laid down by the legislature or, with its tacit approval, by the courts.

27 For example, the emergency power (see supra n. 12) was originally intended to be exercised primarily, if not exclusively, in connection with the security of the State, and it is not best suited to solve problems of ordinary labour disputes. For grave situations caused by strikes special legislation may be properly devised. Also, as another example, it may be useful to provide by legislation for fact-finding committees, such as exist in some countries.

28 On this point see supra, text at n. 3.

29 Labour Law: Old Traditions and New Developments (Toronto, 1968) 79.