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Waiver of Statutory Rights in Israel Labour Law: A Comparative Analysis in Light of English and American Law

Published online by Cambridge University Press:  12 February 2016

Herbert Schreiber
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Extract

One of the recurring issues of Israel labour law has been whether an employee may validly waive statutory rights conferred upon him. This issue had led to a head-on collision between the Supreme Court and the Labour Court, with the latter adopting a position directly contradicting the Supreme Court's precedents on this issue.

On certain issues the Courts are in agreement. Both concede that a waiver is unenforceable where the employee is unaware of his statutory rights. Both concur that labour legislation is cognitive in nature and that an employee may not initially “contract-out” statutory rights conferred upon him. However where the right has already “accrued”—that is, where the employee is entitled by law to claim certain statutory benefits as a result of past employment—the Courts are in open conflict. The Supreme Court has adopted the position that an employee may waive such existing and accrued rights by agreement, may compromise them by settlement and may submit any disputed issue respecting them to an arbitrator for determination.

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Articles
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Israel Law Review , Volume 13 , Issue 1 , January 1978 , pp. 41 - 85
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1978

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References

All translations from Hebrew have been made by the author. Although the author has attempted, wherever possible, to employ the authorised English translation of statutes prepared by the Ministry of Justice, he has occasionally altered them in order to achieve greater clarity.

1 Israel Agricultural Engineering Co. v. Nagy (1964) (III) 18 P.D. 290, 295; Sibotru v. Avraham (1972) 4 P.D.A. 173, 177.

2 Sibotru (preceding note); Schulman v. Mekorot Ltd. (1956) 10 P.D. 95B. In one early case, however, the Supreme Court appeared to rule that an employee could contract out of rights afforded by the Wage Protection Law. See Nagler v. The Electronic Wire & Cable Co. (1962) 16 P.D. 2925. Both Schulman and numerous cases decided since (see cases cited infra n. 46) clearly demonstrate that such is not the law.

3 See, e.g., Machtavi v. Eilat Pipe Line Co. (1971) (II) 25 P.D. 622 at 628–630.

4 Cohen v. Watchmen's Assn. (1960) 14 P.D. 495.

5 Ibid.

6 Nimitz v. Meshulam Bros. Ltd. (1970) (I) 24 P.D. 107.

7 Sibotru, supra n. 1.

8 (1951) 5 L.S.I. 125.

9 (1951) 5 L.S.I. 155.

10 (1958) 12 L.S.I. 100.

11 (1957) 11 L.S.I. 58.

12 (1963) 17 L.S.I. 161.

13 Secs. 2–3, 7 and 20 (5 L.S.I. at 125, 127 and 130).

14 Secs. 4–6, 8–9, 11–12, 14–15 (5 L.S.I. 125–129).

15 Secs. 16–17 (5 L.S.I. at 129).

16 Sec. 26 (5 L.S.I. at 131).

17 Sec. 35 of the Law may, of course, be relevant by implication. It reads: “This Law shall not derogate from any right given to an employee by law, collective agreement, contract of service or custom.” See Schulman v. Mekorot Ltd. (1956) 10 P.D. 958, 960.

18 Sec. 3 of the original statute (5 L.S.I. at 156) required 14 days only; the 14 to 28 day schedule was introduced by amendment in 1965 (19 L.S.I. 224).

19 Secs. 7 and 12 (5 L.S.I. 157, 158).

20 Secs. 28 and 30 (5 L.S.I. 161, 162).

21 Sec. 31 (5 L.S.I. 162).

22 Article 4, Convention Concerning Annual Holidays with Pay, (1936) 1 K.A. 307. Israel deposited its confirmation of the treaty in August 1951, and the treaty went into effect as to Israel during August of the following year.

23 Sec. 1 (12 L.S.I. 100). The statutory definition of “wage” is very broad and includes all “payments due to an employee by reason of and during his employment”.

24 Secs. 2, 9–12 and 25 (12 L.S.I. 100, 101–102, 104).

25 Sec. 17 (12 L.S.I. 103).

26 Sec. 18 (12 L.S.I. 103).

27 Amendment No. 3, Wage Protection Law (1963), secs. 5–6 (18 L.S.I. 34, 35).

28 Secs. 19, 20 and 22 (11 L.S.I. 61).

29 Sec. 12 (17 L.S.I. 164). Day workers are entitled only to two week's wages for each year of employment. Ibid.

30 (1962) H.H. no. 493, p. 88; sec. 21 at p. 90.

31 Sec. 28 (17 L.S.I. 167).

32 Secs. 16, 17, 19 and 20 (17 L.S.I. 165).

33 Sec. 29 (17 L.S.I. 167).

34 (1956) 10 P.D. 958.

35 Ibid., at 960.

36 Ibid., at 959.

37 (1960) 14 P.D. 495.

38 12 L.S.I. 101.

39 Cohen at 499.

40 Cohen at 500. Although the Court decided the case on the ground that the parties were entitled to compromise their dispute, in point of fact the parties had not compromised their dispute but had submitted it to an arbitrator for settlement. An arbitrator's determination, the Court ruled, is simply another form of compromise in which the parties, instead of settling the dispute themselves, submit it to a third party for settlement. Id. at 499.

41 (1963) 17 P.D. 2581.

42 See opinion of Halevy J., Ibid., at 2590 (concurring and dissenting in part).

43 Ibid., at 2586.

44 Ibid.

45 Ibid., at 2587–2588.

46 See, e.g., Haifa Refineries Ltd. v. National Labour Court (1971) (I) 26 P.D. 18 at 26; Machtavi v. Eilat Pipe Line Co. (1971) (II) 25 P.D. 622; Estate of Shahad v. Dardickman (1971) (II) 25 P.D. 182; Nimitz v. Meshulam Bros. Ltd. (1970) (I) 24 P.D. 107; Israel Agricultural Engineering Co. v. Nagy (1964) (III) 18 P.D. 290; Belulo v. Israel Tenth Year Independence Celebration Co. (1964) (II) 18 P.D. 689, 698–700; Haver v. Wage Collection Officer (1963) 17 P.D. 1193.

47 See Machtavi (preceding note).

48 Social Security Agency v. Almohar (1975) (I) 29 P.D. 11. The Court, however, reaffirmed the customary rule that in other situations retrospective waiver of accrued rights is effective. It also found that the rights waiver in Almohar were prospective as well as accrued rights.

49 See Dardickman (supra n. 46) where the employer was required under the collective agreement to deduct certain sums from the salary of the deceased employee and, together with his contribution, to submit these sums to a third party insurer which would provide in the future pension and life insurance benefits to the employee and/or his family. Waiving the benefits of the collective agreement, the deceased employee had insisted that his employer turn over the funds directly to him. Since the pension and life insurance benefits would be realised first in the future, the Court held that prospective rights were involved and found the waiver ineffective. Ibid., at 186–87. But the employer personally had no future obligation to pay pension and life insurance benefits; his sole obligation was to transmit monthly (or periodically) the sums to the insurer. And the employee's right vis-à-vis his employer was simply that such sums be transmitted monthly. Accordingly, from a strictly analytical point of view, the rights which were waived appear to have been existing rights.

50 See Belulo (supra n. 46) and see also Kremnitzer, , “The Watchman in Israel Neither Slumbers Nor Sleeps” (1970) 2 Mishpatim 364 at 366.Google Scholar

51 See cases cited supra n. 46.

52 Sibotru (supra n. 1). Other Labour Court cases on the waiver issue include Baradon v. Jered (1971) 2 P.D.A. 121 at 127–29; Haifa Refineries Inc. v. HUM (1971) 2 P.D.A. 155 at 162–163; Friedmann v. Talpri Ltd. (1973) 4 P.D.A. 232 at 236–237; Estate of Cohen v. Rosenhauser (1975) 6 P.D.A. 299 at 307–308.

53 See Brooklyn Sav. Bank v. O'Neil 324 U.S. 697, 706–07, 65 Sup. Ct. 895, 902 (1945).

54 See remarks of the then Minister of Labour, Mrs.Meyerson, Golda (Meir) in introducing the Hours of Work Law, (1950) 6 Divrei Haknesset 2588–2589.Google Scholar

55 See McPherson, & Myers, , The French Labor Courts: Judgment by Peers (U. Ill. Press, 1966) 7, 34.Google Scholar

56 This view is suggested in Kremnitzer, supra n. 50, at 365.

57 See text supra at n. 52.

58 See remarks of Minister of Labour supra n. 54; see also (1950) 12 Divrei Haknesset 358–359; Overnight Motor Transp. Co. v. Missel 316 U.S. 572, 577–578; 62 Sup. Ct. 1216, 1220 (1942).

59 10 L.S.I. 61.

60 To be sure, there are provisions in Israeli labour legislation which grant authority to the parties to a collective agreement to define or vary some of the rights afforded in the legislation. See e.g. sec. 5, Hours of Work Law, 1951 (5 L.S.I. 126); sec. 10 (c), Annual Leave Law, 1967 (21 L.S.I. 98); sec. 5, Wage Protection Law, 1970 (24 L.S.I. 32). These cases, however, are exceptions to the rule as set forth in sec. 21 of the Collective Agreements Law. In addition, these provisions generally also require the approval of the Ministry of Labour before the modification contained in the collective agreement can be put into effect. See statutes cited above; see also text and accompanying notes infra at nn. 191 and 192.

61 See text supra at n. 52. Thus the Israel Supreme Court has found the doctrine of estoppel to be inapplicable where a statute defines who may sign for a municipality. The doctrine of estoppel cannot be invoked in such a case to vary the mandate of the statute and permit signature by some other city official. Municipal Council of Yesod Hamaalah v. Miloslavsky (1974) (II) 28 P.D. 421 at 424–25; City of Rehovot v. Goldman (1971) (II) 25 P.D. 381 at 388.

62 See text infra at nn. 86–94, 119–124, 137–163.

63 A “general deterrence” theory in accident law has been recently formulated by Professor Calabresi of the Yale Law School. See Calabresi, , The Costs of Accidents; A Legal and Economic Analysis (Yale U. Press, 1970).Google Scholar See also Paton, , A Textbook of Jurisprudence (4th ed. by Paton, and Derham, , Oxford U. Press, 1972) 437, 452–453, 464, 466.Google Scholar

64 Annual Leave Law, sec. 31 (5 L.S.I. 162) (3 years); Wage Protection Law, sec. 17A (18 L.S.I. 35) (1 year).

65 Collective Agreements Law, 1963, secs. 25–34 (11 L.S.I. 61–63).

66 It should be noted, however, that a recent amendment to the Collective Agreements Law may permit the commencement of a suit by a governmental inspector to enforce individual rights under a collective agreement which has been extended according to law. Sec. 33D, Collective Ageements Law (Amendment No. 2) (1976) S.H. no. 804, p. 138.

67 Interest Law, 1957, sec. 6 (11 L.S.I. 47). This provision was added to the bill proposed by the Government during the legislative process, after it became clear, in words of the Chairman of the Finance Committee, that there “existed a possibility that the lender could hide behind an agreement that he imposed upon the borrower. Accordingly, there was added the provision permitting the reopening of accounts”. (1957) 21 Divrei Haknesset 925.

68 Sec. 36 (9 L.S.I. 178). This provision has been interpreted as denying the courts jurisdiction to order eviction of a protected tenant, except where one of the enumerated causes is found. Submission of the matter to arbitration is similarly limited. See Gabrielov v. Gabrielov (1959) 13 P.D. 1263 at 1269.

69 In the final analysis, however, I believe the public interest in terminating legal disputes is of greater importance than any considerations to the contrary and therefore would honour settlements in this area as well. See further discussion of bona fide settlements of legal disputes infra at n. 191.

70 Harpaz at 2586–2587.

71 (1877) 2 App. Cas. 439.

72 (1888) 40 Ch. D. 268.

73 [1955] 2 All E.R. 657; [1955] 1 W.L.R. 761.

74 See Cheshire, , Fifoot & Furmston, Law of Contract (8th paper ed., 1972) 82–91, 530–536Google Scholar; Treitel, , The Law of Contract (3d ed., 1970) 95–108.Google Scholar

75 One case, however, has applied the doctrine in regard to the statutory obligation of a company officer to sign properly the name of the company upon bills of exchange. The statute directs that an officer signing improperly be liable to the holder of the bill if the company subsequently fails to pay. But in this case “it was the holders of the bills of exchange who inscribed the words of acceptance, who chose the wrong words and who now seek to rely upon their own error”. Durham Fancy Goods Ltd. v. Michael Jackson (Fancy Goods) Ltd., [1968] 2 Q.B. 839 at 846–847. Employing the promissory estoppel rationale, the court absolved the defendant officer from liability—since his action resulted from the misrepresentation of the holders. The Court noted, however, that there were limitations upon the application of estoppel to statutory provisions, but apparently felt they were inapplicable here because the statute was not designed to protect holders causing the error in the first instance. Ibid., at 847.

76 Thus two commentators have just recently criticised the failure, in the development of the promissory estoppel doctrine, to distinguish between representations made while the contract is executory and representations made after a breach has taken place. Dugdale, & Yates, , “Variation, Waiver and Estoppel—A Reappraisal” (1976) 39 Mod. L.R. 680.Google Scholar

77 Halsbury's Laws of England (3rd ed., 1970) 227 (emphasis added). Also, the “doctrine of estoppel cannot be evoked to render valid a transaction which the legislature has, on grounds of general public policy, enacted shall be invalid”. Ibid., at 176. Furthermore, “where a statute, enacted for the benefit of a section of the public, imposes a duty of a positive kind, the person charged with the performance of this duty cannot by estoppel be prevented from exercising his statutory powers”. Ibid. “No person”, adds the treatise, “can by his conduct, or otherwise, waive or renounce a right to perform a public duty, or estop himself from insisting he has a right to do so.” Ibid., at 227.

78 Bower, & Turner, , Estoppel By Representation (2d ed., 1966) 134–35Google Scholar, and also at 138–43, 214.

79 Ibid., at 141.

80 [194–1] 2 K.B.I.

81 Ibid., at 6.

82 Ibid.

83 Ibid., at 7.

84 Ibid., at 7–8. The Court expressly rejected the notion that the transfer was valid because the purchaser had the right voluntarily to give up the vehicle any time he chose: “…it may be true that in one sense the car was given up voluntarily, but what it really amounts to is that the defendant assented to the owners exercising their right to retake it.” (Ibid., at 4).

85 [1937] A.C. 610.

86 Ibid., at 620, 621.

87 Ibid., at 621.

88 [1964] A.C. 993.

89 Ibid., at 1015.

90 Ibid., at 1016–1017.

91 [1972] 2 Q.B. 151.

92 Ibid., at 157–158.

93 Ibid., at 159, 160 (opinions of Phillimore L.J. and Roskill L.J.).

94 The difference between accrued and non-accrued claims may still be significant in determining the validity of the assignment in equity of certain choses in action. See infra n. 126.

95 (1887) 19 Q.B.D. 423.

96 (1880) 43 & 44 Vict, c. 42.

97 (1972) 35 & 36 Vict, c. 76.

98 19 Q.B.D. at 426.

99 See, generally, Cronin, & Grime, , Labour Law (paper ed., 1970) 155–195.Google Scholar

100 (1874) 10 Q.B. 62. See Cronim & Grime, (preceding note) at 177–178.

101 For example, the availability of any separate statutory action for failure to fence machinery was seriously put in doubt in Clarke v. Holmes (1862) 7 H. & N. 937, sub nom Holmes v. Clarke, 31 L.J. Ex. 356.

102 Wilson v. Merry (1868) L.R. 1 Sc. & Div. 326 at 341. The other two Lords did not rule on this point.

103 See, e.g., secs. 51–69 (1872) 35 & 36 Vict, c. 76.

104 Cronin & Crime, supra n. 99, at 180–182; see Webb, & Webb, , Industrial Democracy (1920 ed.) 365–391.Google Scholar

105 (1882) 9 Q.B.D. 357.

106 (1887) 18 Q.B.D. 685.

107 (1887) 19 Q.B.D. 423 at 426–427.

108 Of course, I am using the terra dicta as employed in American law. Since Judge Wills quite clearly equated the defences of voluntary assumption of risk and contracting out, his statement as to the inability to contract out of statutory obligations constituted the ratio decidendi of the case, as the term is used in English law. But the Judge's further statement—and the one which is of primary importance to us—that waiver of past breaches may be proper was not the rationale of the case and is clearly dicta under both American and English usage.

109 See text supra at nn. 100–103.

110 See text at nn. 58–60, 120–126, 149–158.

111 See text at nn. 101 to 103.

112 Russel v. Rudd, [1923] A.C. 309.

113 60 & 61 Vict. c. 37. See generally, Webb & Webb, supra n. 100, at 370–391.

114 Sec. (3) 1, 60 & 61 Vict. c. 37.

115 See cases cited in Russel v. Rudd, [1923] A.C. at 315.

116 Ibid., at 309.

117 Although such settlements or waivers take place after injury, there is some question whether the involved statutory rights should or should not be considered “accrued” rights. This is so because the statute provides for payments which continue to accrue, week after week, in the future. Thus, according to the Israeli cases, such statutory rights would probably be considered non-accrued rights. See Social Security Agency v. Almohar (1975) (I) 29 P.D. 11; Estate of Shahad v. Dardickman (1971) (II) 25 P.D. 182 at 186–187; Cohen v. Watchmen's Association (1960) 14 P.D. 495 at 499.

118 Netherseal Colliery Co. v. Bourne, (1889) 14 A.C. 228.

119 14 A.C. at 247. To the same effect was Brace v. Abercarn Colliery Co., [1891] 2 Q.B. 699.

120 [1937] A.C. 653.

121 Great Boulder Pty. Gold Mines Ltd. v. Scriven (1932) 36 West. Aust. L.R. 101.

122 Lake View & Star Ltd. v. Cominelli, (1934) 36 West. Aust. L.R. 107.

123 (1934) 51 Comm. L.R. 553 at 565, 566.

124 [1937] A.C. at 663, 664. The statute in Cominelli, it should be stressed, did not render criminal or expressly declare void or illegal the compromise agreement which the parties had executed or the payment of a premium in an amount less than fifty per cent. [1937] A.C. at 657–658; 51 Comm. L.R. at 556–557. Cominelli thus demonstrates that the rule barring waivers is not confined to cases in which the relevant statute expressly declares illegal or void the contract or behaviour in question.

125 The cases under the English Truck Acts, which require that wages be “actually paid” to an employee, are entirely consistent with this conclusion. Thus an employee's assent that a portion of the wages be retained by the employer in order to pay a legitimate debt of the employee's father to the employer will not bar subsequent employee suit to recover the entire amount. Penman v. Fije Coal Co. [1935] A.C. 45. Otherwise, the House of Lords declared, the “tutelary shelter of the statute” would afford but a “sorry protection”. Id. at 54.

126 The source of the distinction between waivers of accrued and non-accrued statutory rights may originate in the English case law concerning the assignability of choses in action. Although the common law did not permit assignment of choses, equity “from early times” freely permitted their assignment. Halsbury, , Laws of England (4th ed., 1974) vol. 6, p. 7.Google Scholar But even in equity it was not possible to assign a chose in action not yet in existence. And a distinction was drawn between existing and future choses, with the latter being assignable only for valuable consideration. Id. at 20–21. In addition, certain choses were also deemed non-assignable in equity on public policy grounds. Thus, as long as public officers served the Crown or were liable to be recalled to such service, their pensions and salaries were deemed non-assignable. However, a pension given entirely for past services was assignable. Id. at 48, see Wells v. Foster (1841) 8 M & W 149 at 152. Interestingly, Parliament subsequently enacted a long series of statutes prohibiting such assignments. See 6 Halsbury, 48–49. And in one decision under such a statute it was noted that “non-assignability is not only non-assignability to a stranger, or to a creditor, or to some outside person, but includes … non-assignability to the [governmental employer], and if you take that construction of [the Act], it appears to me to be directly contrary to hold that, what is rendered inalienable by the Act as between the [governmental employer] and the officer or servant can be alienated in this case, even after the pension right had arisen, by private contract between the parties”. Guardians of the Poor of Salford v. Dewhurst, [1926] A.C. 619 at 635–636 (per Lord Parmoor). Other choses deemed non-assignable in equity include alimony and maintenance payments. They were described as “personal allowances” of the wife, and not “property”, and therefore she could neither assign nor release them. 6 Halsbury, 49; Tolstoy, , Divorce (7th paper ed., 1971) 132–33.Google Scholar But arrears in maintenance payments apparently could be assigned and released. See Watkins v. Watkins [1896] P. 222 at 228 (per Lindley L.J.); Rayden, , Law and Practice in Divorce and Family Matters (12th ed., 1974) vol. 1, pp. 704–705.Google Scholar In the United States it is also “generally held that the wife may not assign an alimony decree so far as it orders payments to accrue after the date of assignment. She may, however, assign payments which have accrued before the date of the assignment”. Clark, , The Law of Domestic Relations in the United States (1968) 432.Google Scholar Of course, the compelling public policy considerations for disallowing waiver of accrued statutory rights in the labour area are not applicable to the question of assignment of accrued alimony payments.

127 Wright v. State of New York 223 N.Y. 44 (1918) cited (as Right v. State of New York) in Israel Agricultural Engineering Co. v. Nagy (1964) (III) 18 P.D. 290 at 296.

128 Brooklyn Sav. Bank v. O'Neil 324 U.S. 697 at 709, 65 Sup. Ct. 895 at 903 (1945).

129 Brooklyn Sav. Bank v. O'Neil (preceding note); D.A. Schulte, Inc. v. Gangi 328 U.S. 108, 65 Sup. Ct. 925 (1946).

130 29 U.S.C.A. Sec. 201 ff.

131 45 U.S.C.A. Sec. 51 ff.

132 Sec. 5 of the Act provided that any contract to enable any common carrier to “exempt itself from any liability created by this chapter, shall to that extent be void”. 45 U.S.C.A. Sec. 55.

133 Callen v. Pennsylvania R.R. 332 U.S. 625, 68 Sup. Ct. 296 (1947).

134 Apitsch v. Patapsco & Black River R.R. 385 Fed. Supp. 495, 505 (D.C. Md. 1974); Kozar v. Chesapeake & Ohio Ry. 320 Fed. Supp. 335, 384–385 (D.C. Mich. 1970), affirmed in part and vacated in part on other grounds, 449 F. 2d 1238 (6th Cir. 1971). See also South Buffalo Ry. v. Ahem 344 U.S. 367 at 372–373; 73 Sup. Ct. 340 at 343 (1952); Krenger v. Pennsylvania R.R. 174 F. 2d. 556 at 561–562 (2d Cir. 1949, concurring op., L. Hand J.).

135 For example, see the relevant provisions of the federal Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. Secs. 901, 908 (i), 915–916.

136 Cretella v. New York Dock Co. 289 N.Y. 254 at 257; 45 N.E. 2d 429 at 430 (1942) (“We hold there can be no valid compromise of the amounts due a claimant under [the workmen compensation] law”); Stroebel v. Jefferson Trucking & Rigging Co., 15 Atl. 2d. 805, (N.J. 1940). See also Sackolwitz v. Charles Hamburg & Co. 295 N.Y. 264 at 268, 67 N.E. 2d. 152 at 154 (1946) (“The equitable doctrine of estoppel thus has no place at all in the law of workmen's compensation.”)

137 75 N.Y. 38 (1878).

138 Ibid., at 38, 42.

139 Clark v. State of New York 142 N.Y. 101, 36 N.E. 817 (1894).

140 Ryan v. City of New York 177 N.Y. 271 at 279, 69 N.E. 599 at 602 (1904).

141 Wright v. State of New York 223 N.Y. 44, 119 N.E. 83 (1918). See United States v. Morley Const. Co. 98 F. 2d 781 at 788–789 (2d Cir. 1938).

142 216 N.Y. 304, 110 N.E. 612 (1915).

143 98 F. 2d 781 at 788–789 (2d Cir. 1938).

144 Krenger v. Pennsylvania R.R. 174 F. 2d 556 at 560–562 (2d Cir. 1949, concurring op.).

145 Id. at 560. Subsequently, the United States Supreme Court ruled that the “right to bring suit in any eligible forum is a right of sufficient substantiality to be included within the Congressional mandate of Section 5 [which declares void any] ‘contract…to enable any common carrier to exempt itself from any liablity created by this Act’.” Boyd v. Grand Truck Western R.R., 338 U.S. 263 at 265; 70 Sup. Ct. 26 and 27 (1949). In Boyd waiver had taken place after the right to bring suit had accrued, i.e., after the injury had occurred.

146 Brooklyn Sav. Bank v. O'Neil 324 U.S. 697 at 705–706; 65 Sup. Ct. 895 at 901–902 (1945). Indeed, a provision prohibiting waivers, which appeared in the original bills introduced into the House of Representatives and the Senate, was ultimately eliminated by a Conference Committee of both chambers before enactment of the law, 324 U.S. at 710; 65 Sup. Ct. at 904.

147 29 U.S.C.A. Secs. 206, 207, 216.

148 The majority view was reflected best in the opinions of the Second and Seventh federal Circuit Courts of Appeal. See, e.g., Rigopoulos v. Kervan 140 F. 2d 506 (2d Cir. 1943); Fleming v. Post 146 F. 2d 441 (2d Cir. 1944); Gangi v. D.A. Schulte 150 F. 2d 694 (2d Cir. 1945), affd. 328 U.S. 108, 66 Sup. Ct. 925 (1946); Fleming v. Warshawsky & Co. 123 F. 2d. 622 (7th Cir. 1941). The minority view is best set forth in the opinions of the Fourth and Fifth Circuit Courts of Appeal. See, e.g., Guess v. Montague 140 F. 2d 500 (4th Cir. 1943); Dize v. Maddrix 144 F. 2d 584 (4th Cir. 1944), affd. sub nom Brooklyn Sav. Bank v. O'Neil 324 U.S. 697, 65 Sup. Ct. 895 (1945); Atlantic Co. v. Brougkton 146 F. 2d 480 (5th Cir. 1944).

149 324 U.S. 697, 65 Sup. Ct. 895 (1945).

150 328 U.S. 108, 66 Sup. Ct. 925 (1946).

151 See majority and minority opinions in Brooklyn Sav. Bank v. O'Neil.

152 See Atlantic Co. v. Broughton 146 F. 2d 580 (5th Cir. 1945); Guess v. Montague 140 F. 2d 500 at 504–505 (4th Cir. 1943); Fleming v. Post 146 F. 2d 441 (2d Cir. 1944).

153 Dize v. Maddix 144 F. 2d 584 (4th Cir. 1944), affd. sub nom. Brooklyn Sav. Bank v. O'Neil 324 U.S. 697, 65 Sup. Ct. 895 (1945); De Pasquale v. Williams-Bauer Corp. 151 F. 2d 578 (2d Cir. 1945); Robertson v. Alaska Juneau Gold Mining Co. 157 F. 2d 876 at 879 (9th Cir. 1946); see Caserta v. Home Lines Agency, Inc. 273 F. 2d 943 at 946–947 (2d Cir. 1959).

154 The distinction between accrued and non-accrued rights can be found only in the dissenting opinion of one judge in the Fifth Circuit Court of Appeals. Atlantic Co. v. Broughton 146 F. 2d 480 at 483–485 (1944) (Waller, J.).

155 Fleming v. Warshowsky & Co. 123 F. 2d 622 at 626 (7th Cir. 1941).

156 Brooklyn Sav. Bank v. O'Neil, 324 U.S. at 704–714, 65 Sup. Ct. 895 at 900–905

157 324 U.S. at 716–719; 65 Sup. Ct. at 906–908.

158 This was the view of the Fourth Circuit Court of Appeals. Guess v. Montague 140 F. 2d 500 at 504–505 (4th Cir. 1943); Dize v. Maddrix 144 F. 2d. 584 (4th Cir. 1944). The Supreme Court minority approved of the result and appeared to adopt the rationale of Dize in its opinion in O'Neil. 324 U.S. at 719, 65 Sup. Ct. at 908.

159 The Supreme Court majority never in fact expressly said that settlement of factual disputes could be compromised. The case law, however, has generally approved of such settlements. See Gerber, & Galfand, , “Employees' Suits Under the Fair Labor Standards Act” (1947) 95 U. Pa. L. R. 505 at 519 n. 123 (collecting cases).CrossRefGoogle Scholar

160 See Cangi v. D.A. Schulte, Inc. 150 F. 2d 694 (2d Cir. 1945), reversing 53 Fed. Supp. 844 (D.C. S.D. N.Y. 1943). The Supreme Court majority affirmed the decision of the Second Circuit, while the minority adopted the opinion of the District Court. 328 U.S. 108, 66 Sup. Ct. 925.

161 29 U.S.C.A. Sec. 216 (c).

162 29 U.S.C.A. Sec. 260.

163 Statement of Senator Donnell, 17 March 1947, 93 Cong. Ree. 2192, quoted in Note (1947–8) 15 U. of Chi. L. R. 352 at 359. For discussions of the amendments to the Act, see Smethurst, & Hasiam, , “The Fair Labor Standards Amendments of 1949” (1950) 18 Geo. Wash. L. R. 127 at 157–159Google Scholar; Levitt, R.A., “Wages and Hours” in (1947) Annual Survey of American Law 560 at 562–572, 590.Google Scholar The continuing validity of the anti-waiver rule is demonstrated by such cases as Caserta v. Home Lines Agency, Inc. 273 F. 2d 943 at 946–947 (2d Cir. 1959); Wirtz v. Turner 330 F. 2d 11 at 14 (7th Cir. 1964); Mitchell v. Turner 286 F. 2d 104 at 106 (5th Cir. 1960); Pierce v. Concrete Products & Supply Co. 186 So. 2d 751 (Mississippi 1966).

164 See supra n. 16.

165 Secs. 2, 10 (5 L.S.I. at 156, 158).

166 See supra n. 22.

167 (1951) H.H. no. 72, p. 156 at 162–165. The explanatory note appended to the proposed bill states that the proposal “incorporates the provisions of the international treaty”.

168 In finding waivers under the Annual Leave Law ineffective, the Labour Court has cited the international treaty provision invalidating such waivers. Baradon v. Jered (1971) 2 P.D.A. 121 at 128; Haifa Refineries, Inc. v. Hillel (1971) 2 P.D.A. 155 at 162. It is true that the Supreme Court initially asserted that where a statute is based upon a treaty (approved by the Israel Government) the statute alone is binding, and that treaty provisions omitted from the domestic statute do not become part of the municipal law of the land. Trustee of Abandoned Property v. Samara (1956) 10 P.D. 1825 at 1829. More recently the Supreme Court has adopted a more flexible position and has permitted reference to treaties where the provisions cited do not expressly conflict with Israel law. See Latoshinsky v. Kirshen (1967) (II) 21 P.D. 20 at 26, 28; The American European Beth El Mission v. Minister of Labour (1967) (II) 21 P.D. 325 at 329–330. And under English law today, a treaty may be used as an aid to interpretation, where the domestic statute based upon the treaty is ambiguous, “even if the statute does not in terms incorporate the convention nor even refer to it”. Brownlie, Principles of Public International Law (1974) 50–51; see Salmon v. Commissioners of Custom & Excise [1967] 2 Q.B. 116.

169 5 L.S.I. 161.

170 Although the Labour Court has held that waiver of accrued rights under the Annual Leave Law is ineffective, it has also intimated that all that an employer is required to do under the Act is to give, or offer to give, his employee the vacation with pay. Should the employee reject the grant or the offer and then, at his own option, waive the vacation or exchange it for some other benefit, the right to the vacation with pay will apparently have been waived. See Baradon v. Jered (1971) 2 P.D.A. 121 at 128–129. If this interpretation is correct—and the language of the court is somewhat ambiguous in this regard—the question arises why this particular type of waiver should be recognised. Since labour legislation is also designed to protect the worker from his own avarice and weakness, the more appropriate rule should be one which continues to hold the employer responsible even against his employee's wishes. One possible explanation for maintaining the view that an employee forfeits his right when he rejects his employer's offer of a vacation may be found in the interpretation given during the Knesset debates by several speakers, including Mrs. Golda Meir (Myerson), then Minister of Labour, to sec. 12 of the Act, (5 L.S.I. at 158) which provides that an employee “shall not be gainfully employed during his leave” and that if he does perform regularly paid work during that period he “shall lose his right to leave pay”. Although the provision appears, by its very terms, to be referring to a case where the employee works for some other employer after having gone on his annual vacation (see remarks of Warhaftig, M.K., (1951) 9 Divrei Haknesset 1770Google Scholar), yet several speakers, including Mrs. Meir, appear to have suggested that the section also applied, and the employee might forfeit his vacation pay, were he to agree with his employer to exchange his vacation for some other financial benefit. (1951) 8 Divrei HaKnesset 1433, (remarks of Mrs. Meir); (1951) 9 Divrei HaKnesset 1774, (remarks of A. Govrin, Chairman of Knesset Labour Committee). The interpretation of the Labour Court can thus be seen as an attempt to reconcile and find a modus vivendi between two conflicting views: (a) that waivers are ineffective and an employee is always entitled to demand his statutory rights regardless of any waiver; and (b) that an employee exchanging his vacation for some other benefit should be penalised so that he forfeits his vacation pay. In the final analysis, however, sec. 12 cannot be interpreted as referring to an employee who trades away his vacation for some other benefit; an employee working for his employer cannot simultaneously be on “his leave”. Moreover, Mrs. Meir also stressed during the Knesset debates that the annual leave was a “social right which the worker is not permitted to waive” (1951) 8 Divrei HaKnesset 1433. Yet interpreting sec. 12 as including situations of employee-employer exchanges produces the same exact result as a waiver. In both cases the employee loses his statutory right. Thus, although the legislative history does exhibit conflicting tendencies and suggestions, it would be best to adhere to a uniform rule barring all waivers.

171 Five per cent is added for the first week's delay and ten per cent is added for each succeeding week of the delay. See supra n. 25.

172 See e.g., Belulo v. Israel Tenth Year independence Celebration Co. (1964) (II) 18 P.D. 689 at 698–700.

173 (1963) 17 P.D. 2586–2587.

174 See Mandel v. Nazareth Textile Industries, Inc. (1960) 14 P.D. 661 at 663, 665; Rubinstein v. Solel Boneh Ltd. (1966) (IV) 20 P.D. 99 at 104.

175 Sec. 17 (12 L.S.I. 103).

176 Justice Frankfurter was a member of the minority in both O'Neil and Gangi. Brooklyn Sav. Bank v. O'Neil 324 U.S. 697 at 716–719, 65 Sup. Ct. 895 at 906–908 (1945); D.A. Schulte, Inc. v. Gangi 328 U.S. 108 at 121–122, 66 Sup. Ct. 925 at 931–932 (1946).

177 See remarks of the then Minister of Labour, Y. Allon, in support of the amendments. (1963) 37 Divrei HaKnesset 2462–2463, 2516–2517; see also (1963) 38 Divrei HaKnesset 585–590.

178 Secs. 17A & 18 (18 L.S.I. 35).

179 Feyrtag v. Wage Collection Officer (1966) (II) 20 P.D. 276 at 278; Cohen v. City of Jerusalem (1971) 3 P.D.A. 169 at 173.

180 Nir v. Asher Hipsh Be'Negev Ltd. (1973) 5 P.D.A. 54; Raz v. Securities Agency (1975) 6 P.D.A. 331–332.

181 Sec. 20 (11 L.S.I. 61).

182 Estate of Shahad v. Dardickman (1971) (II) 25 P.D. 182 at 185. The views of the Labour Court concerning this issue are apparently still in a state of flux. In a recent case, for example, the Court left open the question of whether the doctrine of estoppel could be applied to accrued employee rights deriving from collective agreements. Arad Chemical Industries, Inc. v. Stenzler (1975/76) 7 P.D.A. 277, 279. But in an earlier case the Court applied the doctrine of estoppel where employees failed to claim certain rights for a substantial period, and justified its ruling, among other reasons, on the ground that the rights were “essentially contractual rights and not rights derived from legislation”. Ashdod Supervisors Committee v. Israel Port Authority (1971/72) 3 P.D.A. 63, 83. This characterisation, however, is entirely inconsistent with the one customarily employed by the Labour Court; it has repeatedly insisted that the (normative) provisions of the collective agreement determining the mutual obligations of the employer and his employees are of a legislative (and not a contractual) character, because they are determined by third parties—the labour organisation and (frequently) an employer association—and not the persons governed by such normative provisions, the employer and his employees. See e g., Soldiers Treasury Bank v. Central Bd. of Assn. of Clerks (1971) 2 P.D.A. 260, 267–268. Recognition of their legislative character assists us in understanding why rights derived from the normative provisions of collective agreements are substantially akin to and should be treated in the same fashion as rights derived from protective labour legislation: both are designed to create minimal terms which the individual employee or a group of employees may not waive; both are intended to offset the assumed superior bargaining power of the employer; and both are designed for uniform application among employers so that no individual employer may obtain a competitive advantage over his fellow employers. Accordingly, both individual and group waivers of such rights should not be given effect, unless the waivers were consented to or acquiesced in by the parties to the collective agreement—the “legislative” creator of the rights—or their authorised representatives. See text and accompanying notes at nn. 184–187.

183 See, e.g., Annual Leave Law, sec. 38 (5 L.S.L 163); Hours of Work Law, sec. 35 (5 L.S.I. 132).

184 Sec. 22 provides that a provision in an individual labour contract more favourable to the employee than the personal provision of the applicable collective agreement “shall prevail unless anything contained in the collective agreement expressly precludes the variation” (11 L.S.I. 61).

185 Sec. 9 (a) National Labor Relations Act, 29 U.S.C.A. Sec. 159 (a).

186 Ramm, , “The German Law of Collective Agreements” in Kahn-Freund, (ed.), Labour Relations and the Law (1965) 84 at 87.Google Scholar German law also protects against “forfeiture” of such rights. The courts have distinguished, however, between forfeiture of rights and “the prohibition of an abusive reliance on a right which [is] possible”. Ibid.

187 The consent, it should be noted, need not be incorporated in an express, written agreement; indeed, even silent acquiescence by the parties to the collective agreement to a continuing open practice of substituting certain benefits for those incorporated in the collective agreement may amount to consent. Moreover, under a general collective agreement between an employers' association and a labour organisation, the local agents of both organisations in charge of administering the agreement—including the individual employer and the shop's workers' council—should be presumed to have authority to consent or acquiesce to an employee waiver of an accrued right, unless otherwise indicated. Such a theory would probably justify the result reached by the Labour Court in Ashdod Supervisors' Committee, supra, n. 182.

188 See text supra at n. 33.

189 See supra n. 31.

190 See supra nn. 30, 31.

191 See supra n. 32.

192 Sec. 16 (17 L.S.I. 165). See also sec. 14 of the Law which permits the parties to a collective agreement to substitute pension rights for dismissal compensation. Id. at 164. It is true, of course, that there are provisions in other protective labour statutes which afford somewhat similar authority to vary the rights granted by means of collective agreements. But these provisions are not as extensive as those contained in the Severance Pay Law, and generally require approval of the Ministry of Labour before the modification contained in the collective agreement can be made operative. No similar requirement for approval by the Ministry of Labour is contained in any of the provisions of the Severance Pay Law permitting variation through collective agreements. Compare Severance Pay Law, secs. 14, 16, 19 and 20, (17 L.S.I. 164–65) with statutory provisions cited supra n. 60.

193 See Elon, , “The Sources and Nature of Jewish Law and Its Application in the State of Israel: Part IV” (1969) 4 Is.L.R. 80 at 87–89.Google Scholar

194 Sec. 12 (17 L.S.I. 164). A weekly or daily “wage worker” obtains “two weeks' wages per year of employment”. Ibid.

195 The principal source for the Severance Pay Law, it should be noted, is Jewish Law. See Elon, supra n. 193. And since “contracting out” of such rights is permitted under Jewish law, it is not unreasonable that somewhat similar flexibility was introduced into the Severance Pay Law. See Elon, , The Principles of Jewish Law (1975) 7, 251, 307–317.Google Scholar

196 These first two conditions are already found in substance in sec. 18 of the Wage Protection Law permitting the court to reduce or cancel statutory damages for detained salary. See text supra at nn. 26–27 and nn. 177–178.

197 See earlier discussion of settlement issues in text at nn. 68–70. Of course, where the statute expressly requires other safeguards—such as the requirement of the Severance Pay Law that the settlement be in writing—these additional conditions must be met. In the area of workmen's compensation, moreover, settlements are not honoured unless the statutory procedure is followed and the statutory amount paid. See notes and accompanying text nn. at 33, 48, 112–117, 135–136.

198 See text at nn. 91–93, 118–124, 158–163.

199 This would appear to be the real rationale behind Lake View & Star Ltd. v. Cominelli, supra. See notes and accompanying text at nn. 120–124.

200 Should the position urged here be rejected and compromise settlements of bona fide legal disputes be found non-binding, it is submitted that at least consent judgments comprehending such settlements of legal controversies be held final and not open to collateral attack. Such appears to be the law in the United States under the FLSA. Jarrad v. Southeastern Ship-building Corp., 163 F. 2d. 960 (5th Cir. 1947); see also D.A. Schulte, Inc. v. Gangi, 328 U.S. 108, 114 n. 8, 66 Sup. Ct. 925, 928 n. 8 (1946); Bracey v. Luray, 161 F. 2d. 128 (4th Cir.), cert, denied, 332 U.S. 790, 68 Sup. Ct. 98 (1947); Urbino v. Puerto Rico Ry. Light & Power Co., 164 F. 2d. 12 (1st Cir. 1947).