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The “Unprotected” Strike: The Settlement of Labour Disputes (Amendment No. 2) Law, 1972 and its Application

Published online by Cambridge University Press:  12 February 2016

Frances Raday
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Legislation
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Israel Law Review , Volume 12 , Issue 1 , January 1977 , pp. 86 - 113
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1977

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References

1 See Zamir, , “The Law of Labour Disputes” (1974) 9 Is.L.R. 548, 555Google Scholar: “The strike situation has steadily deteriorated in recent years, especially in two directions. Firstly, whereas the incidence of strikes in Israel, compared to other countries has been relatively low, Israel ranks second only to Italy in the incidence of strikes in the public services. Secondly, as many as half of the strikes, and in some years considerably more, are unauthorised by the representative trade union”. See also Shirom, , “A Comparative Analysis of Strikes in Ten Industrialized Countries from 1960 to 1969” (October 1970) Labour and National Insurance 423.Google Scholar

2 (1972) 26 L.S.I. 77.

3 This subsection appears to have been tacitly assumed by the Beersheba Labour Court to include the ports and the assumption was not questioned in the subsequent appeal to the National Labour Court: Haifa Port Sea Department Works' Committee v. The Port Authority and others (1974/75) 6 P.D.A. 345. See similarly, Israel Ports Authority v. Executive Committee of the Histadrut and Others (1975/76) 6 P.D.A. 143. Although management of the ports is indeed regulated by statute, the Ports Law (N.V.) 1971, it does not necessarily follow that the ports are therefore undertakings established by law; the question requires examination.

4 The Swedish Criminal Code, Chapter 25, sec. 4 imposes criminal sanctions for strikes only on those public employees who bear “official responsibility”: Schmidt, , The Law of Labour Relations in Sweden (Cambridge, Mass., Harvard Univ. Press, 1962) 154CrossRefGoogle Scholar. For criticism of the French law of 31 July 1963, which extends certain non-criminal limitations on the right to strike to employees in public service other than strictly civil service officials, “fonctionnaires”, see Sinay, , “La Grève” in Camerlynck, G.H., ed., Traité de droit du Travail (Paris, Dalloz, 1966) vol. 6, pp. 367–371.Google Scholar

5 United States: public service strikes were prohibited by federal law: see National Labor Relations Act 49 Stat. 449 (1935) sec. 2(2) as amended by Labor Management Relations Act 29 USB sections 141–62, 171, 197. However, the equation of collective bargaining rights of federal employees with those of private employees under the National Labor Relations Act was effected by Executive Order 11491, 1969. In many State laws the right to strike is still negated for public employees by statute, but varying degrees of autonomous collective bargaining are now permitted. France and Italy: former absolute restrictions on the right of public servants to strike are no longer unambiguously recognised; see Kahn-Freund, , Labour Relations and the Law (London, Stevens & Sons, 1965) 192, 216Google Scholar. United Kingdom: no legal distinction has traditionally been drawn between the right of ordinary employees and of public servants to take strike action; see Wedderburn, , The Worker and the Law (Pelican Books, 2nd ed., 1971) 390–391.Google Scholar

6 See Stieber, , “Collective Bargaining in the Public Sector” in Lloyd Ulman, , ed., Challenge to Collective Bargaining (Prentice-Hall Inc.: A Spectrum Book, 1967) 79–84.Google Scholar

7 A strike is defined, in sec. 37 A, for the purpose of the Amendment as: “(a) an organised total or partial work stoppage by a group of employees, including a go-slow strike or some other organised disruption of the normal course of the work; (b) organised refusal, resorted to by a group of employees as a step in a labour dispute, to work overtime where the duty to work overtime is laid down by collective agreement and such work is permitted under the Hours of Work and Rest Law, 1951.” In Israel Ports Authority v. Executive Committee of the Histadrut and Others (1975/76) 6 P.D.A. 143, the phrase “disruption of the normal course of work” was interpreted as excluding an organised refusal to obey directives of the employer with regard to work processes which had not been agreed upon by the parties to the collective agreement.

8 For the second category, see infra text at nn. 33–41. The third category of unprotected strike or lockout is strike or lockout in the public services of which notice was not given in accordance with sec. 5A of the Settlement of Labour Disputes Law; since this provision is more closely related to the implementation of sec. 5A than to the nature of the unprotected strike, it is not proposed to discuss it in this context. On sec. 5A, see Raday, F., “A Cooling-Off Period for Israel” (1971) 6 Is.L.R. 569.Google Scholar

9 A special definition of “collective agreement” for the purposes of the Amendment is provided in sec. 37A: “[it] has the same meaning as in section 1 of the Collective Agreements Law, 1957, whether or not the agreement is made and submitted for registration under that Law, and includes any other collective arrangement, provided that the agreement or arrangement is made in writing and prescribes rates of wages”. Sec. 1 of the Collective Agreements Law, 1957, provides: “A collective agreement is an agreement between an employers' organisation and an employees' organisation made and submitted for registration in accordance with this Law, concerning all or any of the following matters: the engagement of employees and the termination of employment, terms of employment, labour relations, the rights and obligations of the organisations parties to the agreement.” (11 L.S.I. 58).

10 The peace obligation implied from this provision appears to be cogent and not dispositive. Cf. the Swedish legislation which expressly provides that the parties may not contract out of the peace obligation; Act Respecting Collective Agreements, 1928, as amended in 1945, sec. 4; see Schmidt, , The Law of Labour Relations in Sweden (Harvard Univ. Press, 1962)CrossRefGoogle Scholar Appendix. However, the wording of sec. 37A appears sufficient to impose a cogent peace obligation without further express provision to that effect.

11 Explanatory note of the Bill (1971) H.H. No. 23, p. 62.

12 Questions of promotion have been held by the National Labour Court to be “connected with wages and social conditions” for the purposes of this provision: see The Technion, Israel Institute of Technology and Others v. The Histadrut and Others, National Labour Court, 24 Feb. 1976, not yet published.

13 Cf. Collective agreement peace obligations imposed by statute in Sweden and the U.S.A. are limited to disputes of rights; Sweden: Act Respecting Collective Agreements, 1928, as amended in 1945, sec. 4; see Schmidt, , The Law of Labour Relations in Sweden, op. cit., at 180–185Google Scholar and Appendix. U.S.A.: National Labor Relations Act (1935) sec. 8(d); Mastro Plastics Corp. v. N.L.R.B. (1956) 350 U.S. 270, 100 L. ed. 309. Absolute peace obligations, banning all forms of industrial self-help for the duration of an agreement, are almost never found except in a procedural agreement, between the parties, which “does not bar industrial action, rather it provides for previous steps to be undertaken, before industrial action is resorted to”: Aaron, and Wedderburn, , eds., Industrial Conflict—A Comparative Legal Survey (Longman, London, 1972) 170, 128–130.Google Scholar

14 An example of the kind of issue which might fall into this category is the determining of wage rates for tasks unclassified in the collective agreement where such tasks have been newly created as a result of changes in the production or services system during the course of a collective agreement.

15 The National Labour Court has, indeed, held that the Settlement of Labour Disputes Law applies only to economic disputes and not to disputes of rights at all: Histadrut and Histadrut of Agricultural Workers v. Farmers' Assoc. (1971/72) 3 P.D.A. 253, 268; it remains yet to be decided whether this distinction is applicable to sec. 37 D; however, in view of the Court's readiness to apply the distinction to the first amendment to the Law, sec. 5A, it seems likely that the Court will decide that it is also applicable to the second amendment. See Hebrew University of Jerusalem v. Union of Lecturers, Instructors, Assistants of the Hebrew University, Jerusalem (1973/74) 5 P.D.A. 115, 128.

16 Sec. 37 A of the Amendment.

17 Electric Wire and Cable Co. Works Committee v. Israeli Electric Wire and Cable Co. (1972/73) 4 P.D.A. 122, at 134.

18 Hebrew University Jerusalem v. Union of Lecturers, Instructors, Assistants of the Hebrew University, Jerusalem. (1973/74) 5 P.D.A. 115 at 131.

19 Ibid. The general doctrine expounded by the Court was applied to the relations between the University and its staff, on the explicit understanding that this was a public service, that the strike was an “unprotected strike”, but that there had been no proceedings in tort or contract as required by sec. 37B of the Amendment; see infra text at nn. 42–57.

20 Ibid., at 129, 130, 131.

21 Judge Bar-Niv brings in evidence of the existence elsewhere of such an “implied term” of the collective agreement: Horion “Rapport de synthèse” in Lockout, Grève et, Collection du Droit du Travail (C.E.C., Luxembourg, 1961) 49Google Scholar, where the following explanation is to be found—“En Allemagne, il est admis que, même en l'absence d'une clause particulière à cet égard, il y a pour la durée de la convention, et au sujet des questions qu'elle règle, une obligation tacite et relative de paix sociale”. However, it remains arguable whether such restriction on the liberty to strike should be classified in the Israeli context as emanating from an implied clause of the collective agreement, even if in Germany it does appear to be so classified. See also Boldt, “Grève et Lockout en Droit Allemand” ibid. at 110.

22 Cf. The Technion, the Jerusalem, Tel Aviv, Bar Ilan, Haifa and Ben Gurion Universities v. The Histadrut, National Labour Court, 24 Feb. 1976, not yet published; in this latter case, the no-strike obligations was derived from a no-strike clause in the collective agreement itself—the no-strike clause in question was interpreted by the Court as preempting strike action on a dispute of interests for which settlement procedures had been provided in the agreement. In the U.S., the implied obligation not to strike during a collective agreement is considered a quid pro quo for compulsory settlement procedures ‘in the agreement’. Teamsters Union v. Lucas Flour Co. 369 U.S. 95: 7 L ed 2d 593 (1962). (In practice the overwhelming majority of American collective agreements contain compulsory settlement procedures.) In France and Italy, “il y a interdiction implicite de déclencher une grève pendant le cours d'une procédure conventionelle de conciliation”; Horion, op. cit., at 49.

23 See supra text at n. 10.

24 See the dicta of Judge Bar-Niv, quoted supra in the text at nn. 17, 18.

25 As regards collective agreement peace obligations, the following observation was made in the context of a comparative study of legal provisions in common and civil law countries: “Although limitations of this kind are always brought about through industrial autonomy, the source which gives them legal effect may also be a statute or a principle of law, no matter what the intention of the parties was”. Aaron, and Wedderburn, , Industrial Conflict—A Comparative Legal Survey, op. cit. supra n. 13Google Scholar, at 128.

26 Indeed, one could go even further and say that at the time of enactment of the Amendment no judicial peace obligation existed at all, and the intention of the legislature was to create the only such obligation and to confine it to the public services.

27 See supra, text at n. 12.

28 Sec. 37A of the Amendment; see infra text at n. 36.

29 See infra text at n. 42 ff.

30 See the decision in Hebrew University, Jerusalem v. Union of Lecturers, Instructors, Assistants of the Hebrew University, Jerusalem (1973/74) 5 P.D.A. 115.

31 Histadrut, and Histadrut of Agricultural Workers v. Farmers' Association (1971/72) 3 P.D.A. 253, 268. Hebrew University, Jerusalem v. Union of Lecturers, Instructors, Assistants of the Hebrew University, Jerusalem (1973/ 74) 5 P.D.A. 115, 128.

32 Judicial restriction of the provisions of the Settlement of Labour Disputes Law to economic disputes is in any case controversial: see sec. 2 of the Law, which excludes individual disputes but does not also exclude judicial disputes from the definition of “labour dispute” for the purpose of the Law.

33 U.K.: The Donovan Commission defined an “Official” strike as “one which has been sanctioned or ratified by the union or unions whose members are on strike, all others being unofficial”. Report of Royal Commission on Trade Unions and Employers Association, 1965–1968, Cmnd. 3623, para. 367. Under the Industrial Relations Act, 1971, strikes which were not organised by a registered trade union—sec. 61(3)—were an unfair industrial practice—sec. 96. The Industrial Relations Act, 1971 was repealed, by the Labour Government, on taking office (Trade Union and Labour Relations Act 1974, Schedule 5), and no further legislative restriction of the unofficial strike has been introduced.

Germany: The unlawfulness of the unofficial strike rests on article 823 of the German Civil Code which provides that an act is unlawful if it is contrary to the law and injures, intentionally or negligently, the life, person, health, liberty, property or other right of another person. The employer's right to run his enterprise is considered an “other right”, and a strike of his employees is considered an act contrary to law if it is not “socially justified”. According to doctrine and jurisprudence, one of the conditions that a strike must satisfy in order to be socially justified is that it be conducted by a trade union. See Boldt, “Grève et Lockout en Droit Allemand”, op. cit., supra n. 21 at 117–119. See also Aaron and Wedderburn, op. cit. supra n. 13, at 29, 295.

34 U.S.: The democratic labour relations rights of employees are channelled into the election system and the availability of the right to vote entails the surrender of individual rights, including the right to strike, to the elected representatives. This is rule by the majority and, where the majority opposes the bargaining representatives' policy, it may, by election, change that representative. The essential framework of a system such as that in the U.S. is the division of employees into defined bargaining units where the identity of interest of the employees is considered sufficient to enable their representation by a trade union elected by the majority which has a corresponding duty to represent them fairly. See also Cohen, , Labor Law (Ohio, Charles E. Merril Books, 1964) 176Google Scholar; Werne, , The Law of Labor Relations (New York, Macmillan, 1951) 14–26Google Scholar; I.L.O., , The Trade Union Situation in the U.S. (Geneva, I.L.O., 1961) 56Google Scholar. Canada: The approach to delimitation of collective bargaining units is rather different from that in the U.S. but the same basic principle of defined and exclusive bargaining representatives in defined units prevails: Canada Department of Labour, Canadian Industrial Relations, (Privy Council Office, 1968) 141–142.Google Scholar

35 Secs. 37 A, 37 B (d) provide that certification in writing by the national central executive of the designated union will be conclusive evidence of authorisation of the strike for the purposes of determining its ‘protected’ status and union liability under sec. 37 B. The issues raised by this provision lie beyond the scope of the present article.

36 It does not seem probable that the provisions relating to “representative employees' organisations” in the Collective Agreements Law, 1957, are to be applied to test whether the employee party to the agreement is to be considered a valid representative of the employees whose liberty to strike is delegated to it. Although the Amendment specifically defines collective agreement in accordance with sec. 1 of the Collective Agreements Law (see supra n. 10), it dispenses with the limitation in that section requiring that collective agreements be submitted for registration, and widens the definition even further by including “any other collective arrangement” within it. Can it then be said that the Amendment intends the restrictive requirements of secs. 3 and 4 of that Law to be drawn within the scope of the definition of collective agreement in the Amendment?

37 See text preceding n. 33.

38 See supra text at n. 35.

39 The Teachers' Union of the Histadrut may possibly be the only such union.

40 See text preceding n. 33.

41 The Histadrut comprises about two-thirds of the labour force in the country. On the Histadrut see, Friedman, , “Workers' Committees and the Trade Union Department of the Histadrut: Partners or Rivals” in Friedman, , Structural Changes in Labour Unions (Industrial Relations Res. Ass. of Israel, 1972) 22Google Scholar and Zamir, “Trade Unions and Employers’ Associations: The Legal Situation”, ibid. at 59; Sobel, , “Israel” in Galenson, , “Labor in Developing Economies (Univ. of Calif. Press, 1962) 187.Google Scholar

42 The provisions of sec. 37B(c) of the Amendment regarding the Employment Service Law are as follows: “An unprotected strike is not a strike within the meaning of the second paragraph of sec. 44 of the Employment Service Law, 1959, in respect of the dispatch of workers to the place of employment where the strike is in progress. However, if a person seeking employment is offered employment by the labour exchange at a place of employment where an unprotected strike is in progress and by reason thereof he refuses to accept the said employment, his rights under the Rules enacted by virtue of sec. 41 of the said Law shall not be affected by such refusal”. The effect of this provision is to cancel the statutorily guaranteed neutrality of the employment service regarding strikes generally, where the strike is an unprotected strike, and to enable the service to be utilized to supply replacement labour to unprotected strikes. This provision relates to the functioning of administrative agencies and will not be further discussed in the context of the present article.

43 Sec. 62 of the Civil Wrongs Ordinance:

“(a) Any person who, knowingly and without sufficient justification, causes any other person to break a legally binding contract with a third person commits a civil wrong against such third person, provided that such third person shall not recover compensation in respect thereof unless he has suffered pecuniary damage thereby.

(b) For the purposes of this section, the relationship created by marriage shall not be deemed to be a contract, and a strike or lockout shall not be deemed a breach of contract.”.

44 (1971) (I) 25 P.D. 129.

45 The District Court's finding that there was no proof of the existence of a contract between the third party plaintiff and the employer of the strikers was not rejected by the Supreme Court; hence there was no factual basis for proving “causing breach of contract” under sec. 62(a).

46 The mischief rule: it was the decision in Leo Beck School v. Union of Secondary School Teachers, (1962) 16 P.D. 2205, which prompted the legislature to enact sec. 62(b) and, in that case itself, the strike leaders were found liable for causing breach of the employment contracts of the strikers; it was this liability which the legislature sought to rectify.

47 Sec. 19 of the Collective Agreements Law: “Provisions of a collective agreement concerning terms of employment and termination of employment, and personal obligations imposed on, and rights granted to, an employee and employer by such provisions (hereinafter referred to as personal “provisions”), shall be regarded as a contract of employment between each employer and each employee to whom the agreement applies and shall have effect even after the expiration of the collective agreement, so long as they have not been validly varied or repealed; participation in a strike shall not be regarded as breach of a personal obligation.”.

48 Workers' Committee of the Electric Wire and Cable Co. v. The Electric Wire and Cable Co. (1972/73) 4 P.D.A. 122, 132–133; Shetreet and Others v. Maspenot Israel, Haifa Workers' Council (1972/73) 4 P.D.A. 337, 355.

49 Views differ widely as to the effect of a strike on an employment contract in English common law: see, for instance, Grunfeld, , Modern Trade Union Law (London, Sweet & Maxwell, 1966) 330–331Google Scholar; Foster, , “Strikes and Employment Contracts” (1971) 34 M.L.R. 275CrossRefGoogle Scholar; Royal Commission on Trade Unions and Employers' Associations 1965–68, Cmnd. 3623, p. 244, paras. 944, 955.

50 The Hebrew University, Jerusalem v. Lecturers', Instructors' and Assistants' Union of the Hebrew University (1973/74) 5 P.D.A. 115, 129.

51 Workers' Committee of the Electric Wire and Cable Co. v. The Electric Wire and Cable Co. (1972/73) 4 P.D.A. 122, 132.

52 Law of Contracts (Remedies), 1970 sec. 3(2). It is beyond the scope of this article to examine whether this is indeed the only rationale under which the provisions of sec. 3(2) can be avoided, where a strike injunction is sought.

53 See also Zamir, , “The Law of Labour Disputes” (1974) 9 Is.L.R. 548, 555.Google Scholar

54 Eilat-Ashkelon Oil Pipe Line Co. v. National Works Committee of the Eilat Ashkelon Pipe Line, Beersheba Labour Court, 15.8.72; National Insurance Institute v. Yamin & Others, Jerusalem Labour Court, 22.8.72, El-Al Maintenance Works Committee v. El-Al, Tel-Aviv Labour Court, 10.4.72 not reversed on this point by the National Labour Court (1971/1972) 3 P.D.A. 393Google Scholar. These regional Labour Court decisions have not been published.

55 The Hebrew University v. Lecturers', Instructors' and Assistants' Union of the Hebrew University (1973/74) 5 P.D.A. 115 at 129.

56 Eilat-Ashkelon Pipe Line Co. v. Works Committee of Sea Workers Ashkelon and Members of the Committee, Beersheba Labour Court, 25.5.1975, not published.

57 Sea Department Works Committee, Haifa Port v. Ports Authority (1974/75) 6 P.D.A. 345, 350.