Chapter 1

In Israel, the right to strike is not expressly enshrined in statute as one of the basic human or civil rights. The legislature, like legislatures in other countries, refrains from defining what constitutes a ‘strike.' 3 The reason for this is a lack of desire or ability to intervene in employment relations, and a desire to avoid inflexibility that would be created by any definition and prevent giving expression to changing needs and circumstances within the framework of employment relations.⁴

Nonetheless, the right to strike is regarded as one of the basic socio-economic rights in a democracy, and it is recognized as such in international law⁵ and also in the statutes and case law of various countries.⁶ In Israel also, the right to strike has been recognized de facto as a basic right and has become one of the three elements that constitute the freedom of employees to form unions, together with the freedom to form unions and the freedom to conduct collective negotiations:⁷

‘A strike is a pressure operation adopted by a group of employees within the framework of their professional struggle with the employer, in order to achieve demands with regard to their work conditions or with regard to the demand of other employees that have been presented to their employer.’⁸

The freedom to strike derives therefore from the right of employees to form unions and it is an integral part of democracy. Notwithstanding, the strike should be the last measure within the framework of the professional struggle, after negotiations and mediation have been exhausted. It should be noted that the employer also has a right to protect his positions in this power struggle.⁹

The recognition of the freedom of employees to form unions and their right to strike is intended to balance employment relations between the employer and the employee, which is by its very nature characterized by an inequality to the employee’s detriment.¹⁰

The freedom to form unions, with its three elements, is not a purpose in itself but is intended to guarantee the realization of the purpose of employment law — protecting the employee and the means of influencing the the terms of his employment and guaranteeing his human dignity. Indeed, the High Court of Justice has held that the right to strike ‘… will from now on be included in the value of “human dignity” that is enshrined in the Basic Law [Human Dignity and Liberty].’¹¹ President Barak expressed his opinion in the context of the question whether the right to strike is collective or personal, and he held:

‘It seems to me that there are grounds for the claim that human dignity is the source for the employee’s freedom to strike and the employer’s freedom to declare a work stoppage. This gives expression to the autonomy of their individual will. From the employee’s viewpoint, it reflects his right to form a union and to realize his professional struggle by means of the strike. From the employer’s viewpoint, it reflects his freedom of occupation.’¹²

Employment law seeks not merely to shape the rules regarding employment conditions but also to guarantee the means whereby the employee can influence his employment conditions and obtain recognition for his protected rights.¹³ In this process, the strike is recognized in Israeli law as a part of the process of negotiations between the employer and his employers, and it is a legitimate tool of the employees in seeking to improve their employment conditions.¹⁴

Since restrictions on the freedom to strike make it difficult for employee’s unions to maintain the existing union, to carry out their function and to persuade employees that are not members to join the union, the labor court takes into account the need to strengthen the right of employees to form unions and has even taken action to strengthen the freedom to strike and limit the restrictions imposed upon it:¹⁵

‘The right to form unions maintains the dignity of the employee in the workplace, where he spends, as a rule, a third of his day. The individual employee in inferior in strength to the employer and in the vast majority of cases he is not able to bargain or negotiate fairly. Therefore, by joining a union, the worker increases his strength and achieves equality in negotiations with the employer, since an organized group of all the employees of the plant or all of the employees in the industry can conduct negotiations with a strength similar to that of the employer.’

It would therefore appear that employment law seeks to protect the basic rights of employees, including the freedom to strike and form unions, while taking into account the rights of employers.¹⁶

It is important to clarify that the union is liable to exercise the right to strike in good faith. The employer and the union are liable to conduct the professional strike in accordance with the rules laid down by legislature and case law. A departure from these will compel the Labor Court to intervene, in order to maintain a proper employment relationship.

¹      Guy Davidov, ‘The Principle of Proportionality in Employment Law,’ 31 Iyyunei Mishpat (5768).

²      LA 48/4-23 General Federation et al. – Airports Authority, IsrLC 19, 449.

³      Yehudit Galili and Michal Koreh, The Right to Strike: The Nature of Limits and Future Changes, Knesset Research and Information Center, January 19, 2004.

⁴      LA 36/5-4 Moshe Ginstaller et al. – State of Israel, IsrLC 8, 3. Ruth Ben-Israel, Strikes and Work Stoppages from the Viewpoint of Democracy, Open University, Tel-Aviv 2003, page 86.

⁵      The right to strike has been recognized in the International Covenant on Economic, Social and Cultural Rights, in the Report of the International Labor Organization and in the European Union, such as in the European Social Charter.

⁶      Or Tutnauer, The Right of Return, The Israeli Institute of Democracy (2011).

⁷      Shurik Dreishpitz, ‘There’s a Strike Here! On the Israeli Strike Culture,’ The Israel Institute of Democracy (2011).

⁸    HCJ 525/84 Nabil Hatib et al. v. National Labor Court et al. [1986] IsrSC 40(1) 673 (hereafter: ‘the Hatib case’). Ruth Ben-Israel (ed.), Strikes and Work Stoppages from the Viewpoint of Democracy, Open University, Tel Aviv (2003), at pages 138, 146.

⁹    Supra, note 10.

¹⁰     Ruth Ben-Israel, Employment Law, vol. 1, the Hebrew University, Tel-Aviv (2002), at pages 45-46.

¹¹     HCJ 1074/93 Bezeq – The Israeli Telecommunications Corporation Ltd. v. National Labor Court in Jerusalem et al. [1995] IsrSC 49(2) 485 (hereafter: ‘the Bezeq case’).

¹²     A. Barak, Legal Interpretation, vol. 3, Constitutional Interpretation (1994) 431.

¹³     Ruth Ben-Israel, 'The Ramifications of the Basic Laws on Employment Law and Employment Relations,’ 4 Employment Law Annual 27 (1994), at page 186.

¹⁴   Steve Adler, ‘The Freedom to Strike as Reflected in Case Law,’ Berinson Book, part 2 (2000), Nevo Publishing.

¹⁵   LA 4-10/98 Delek the Israel Fuel Company Ltd. – New General Federation of Labor – Professional Organization Department (given on October 29, 1998).

¹⁶     Supra, note 10.

Israeli case law has distinguished between several types of strike, which differ from one another in their nature, significance and the legal outcome that follows from them:¹

Economic strike — This is a strike that derives from a professional struggle and protection of work conditions, and it is in essence a permitted strike. The economic strike has been recognized as legitimate since the early days of the State. In general, a strike of this kind breaks out within the framework of negotiations to sign a new collective agreement, a demand to improve work conditions, prevention of any harm to them, etc. Israeli law imposed a few restrictions on the economic strike, while adopting the rule that the harm to the employer is not a sufficient reason to prohibit the strike. When it decides upon the legality of the economic strike, the Labor Court is experienced in examining its proportionality, while making the necessary balances between the freedom to strike and other basic rights that are being weighed. It would therefore appear that the accepted approach is that an economic strike is legitimate and as such it will entitle the strikers to protection under employment law.

Political strike — a strike that constitutes a means of pressurizing the sovereign against a legislative proceedings, a change in legislation, a sovereign decision and anything similar. A strike directed against the Knesset or the Government as sovereign, whose main purpose is not to protect employment conditions, is a political strike that is not recognized in Israel law as a legitimate professional struggle. The Supreme Court already decided in the Hatib case² that the political strike is not lawful since it undermines democracy. It is important to state that a strike that is not legitimate is a breach of an employment contract, and therefore the striking employees are not entitled to legal protections for it.

Quasi-political strike — A dual-purpose strike, which seeks, first, to pressure the sovereign in order that it will change its policies, like the political strike, and second, a struggle concerning the protection of the employment conditions of employees that think that the sovereign’s policies will result in their rights being prejudiced. Such a strike was recognized in the Bezeq case as legitimate, insofar as it is a short protest strike and satisfies certain restrictions.

Sympathy strike - A strike by employees of a certain employer that identifies with the struggle of employees of another employer, where the former are prepared to help the latter in achieving their demands. As a rule, the strikers in a sympathy strike at the former plant do not have an employment dispute and direct claims against their employer, who is also not the direct address for solving the original employment dispute between the other employer and his employees.³

Already in the 1960s,⁴ a sympathy strike was recognized by case law as legitimate and this was affirmed by the Supreme Court in the Elco case,⁵ where it said:

‘… We have already discussed this element that the employment relationship is not severed by the strike, in CA 573/68 Shavit v. Hanan [1969] IsrSC 34(1) 516, at page 520, where we also mentioned another important element of a strike, namely the intention and desire to achieve thereby the demands made by the strikers of their employer for themselves of for the employees of another employer… We do not have a general statutory definition of a strike, and for our purposes we can use the succinct definition given in the aforesaid Shavit case, namely that “A striker is a person who, without severing his employment relationship with his employer, stops working, together with other employees, in order to achieve his demands against his employer or in order to help other employees achieve their demands against their employer.’ A work stoppage of the latter kind, where employees go to the aid of other employees, is what is known colloquially as a ‘sympathy strike’.”’

¹    Ibid. LA 23/07 Israel Electric Company Ltd. v. New General Federation et al. (hereafter: ‘the Electric Company case’).

²    Supra, note 13 — the Hatib case.

³       Chaim Berinson and Assaf Berinson, ‘Sympathy Strike — Its Status and Proportionality,’ Berinson Volume, 2000.

⁴    CA 573/68 Shavit v. Hanan et al. [1969] IsrSC 23(1) 516, at page 520.

⁵    HCJ 566/76 Elco Electro-Mechanic Production Ltd. v. National Labor Court [1977] IsrSC 31(2) 197, at page 207; HCJ 1074/93 Attorney-General et al. v. National Labor Court et al. [1975] IsrSC 29(2) 485; R. Ben-Israel, Strikes, at page 56.

As stated, the right to strike, like any other right, is not absolute and can be restricted in relation to other rights. The right to strike may be subject to substantive or procedural restrictions.¹ In special cases, the right to strike may be restricted to the extent that striking is prohibited. As we shall see below, such a prohibition is possible in a case of certain groups of employees in the civil service and in the supply of essential services.²

As a rule, Israeli law does not impose many restrictions on the economic strike, since it takes the view that the protection of the employee against exploitation is of greater importance than the damage caused to the employer. Notwithstanding, even the economic strike is subject to certain restrictions. For example, section 5A of the Work Dispute Resolution Law³ requires fifteen days notice of a strike to be given to the Commissioner of Employment Relations.

Additional restrictions imposed in case law on the right to strike when the court finds that the right to strike has been abused or is disproportionate. The court has also held in the past that ‘the freedom to strike is restricted by the rights of others, and certainly it cannot be said that every tortious act committed during a permitted strike is… There is no legal system, including the Israeli legal system, that exempts the participants in a strike from liability in every case and that gives strikers immunity from every act that is done by them with regard to the strike.’⁴

The legitimacy of the strike is determined according to factors such as the purpose of the strike, the body at which the strike is directed, the proceeding of declaring the strike, the type of pressure activity that is adopted by the employees and proportionality. A strike that is not defined as a legitimate strike does not benefit from the immunities, and it amounts to a breach of an employment contract and a breach of the employees’ disciplinary duty. In such cases, the strikers and the strike organizers are exposed to sanctions and injunctions.⁵

Finally, Israeli law restricts the right to strike in the civil service or in cases of institutions that provide essential services, such as medicine, electricity and water. We shall give details of these restrictions below.

¹    Article 8 of the International Covenant on Economic, Social and Cultural Rights of 1966.

²    Supra, note 11.

³    The Work Dispute Resolution Law, 5717-1957.

⁴    CA 593/81 Ashdod Car Enterprises Ltd. v. Tzizik et al. [1987] IsrSC 41(3) 169, at pages 170, 192.

⁵    M. Shaked, 'A Theory of the Prohibition of the Political Strike,’ 7 (1999) Employment Law Annual 185. Ruth Ben-Israel, Strikes and Work Stoppages from the Viewpoint of Democracy, Open University, Tel-Aviv (2003), at page 144.

When deciding whether a strike is a legitimate measure, we need to examine whether, in view of all of the circumstances, including the employer’s conduct prior to the outbreak of the strike, the employee’s action is proportional. In this context it has been held that ‘we should examine in a given case how serious is the damage that is expected to be suffered by a third party as a result of taking a step within the framework of the strike, as compared with the benefit that is expected to accrue to the strikers as a result of carrying out that step against a background of the circumstances that gave rise to the strike.'¹

From the various court decisions it can be seen that a strike is not proportionate when it causes excessive or unnecessary harm to the public and in such cases the court examines whether or not an injunction should be issued against the strike. In this examination, the court checks whether the strike is a first step on the part of the union or whether it broke out only after a sincere and prolonged attempt to reach an agreement.² According to the National Labor Court, ‘if the parties exercised their authorities and power to the extent required when they did not arrive at an agreement… society is prepared to accept the use of power, including harm to residents.’³ It has also been held that the court should take into account ‘damage that may be caused as a result of the sanctions, balanced against the denial of the legitimate right of a union to declare a strike.’⁴

¹    Supra, at note 22.

²    LA (Nat) 57/4-16 Local Government Center in Israel – New General Federation of Labor, IsrLC 32, 1, at page 31.

³    Ibid., at page 33.

⁴    LA (Nat) 55/4-27 National Insurance Institute – New General Federation, IsrLC 28, 315, at page 328.

An essential service was defined in the Electric Company case as a ‘service that, if stopped, will immediately and significantly endanger the life, personal security or health of the whole public or parts thereof…’

In the Mekorot case,¹ the court considered the characteristics of a strike in an essential service, and it said:

‘The definition of the term “essential service” depends upon all the circumstances that arise in each individual case; sometimes there are grounds to broaden the definition of the service as essential. A service is defined as essential if stopping it may endanger the life, personal security or health of the residents. It is insufficient that the public is caused inconvenience or that the public is affected by the loss of a service that it is accustomed to have, or that it regards subjectively as important, such as television, radio, transport services, non-lifesaving medical treatment, etc… When we are called upon to decide whether a service is essential, we should consider, inter alia, the damage caused to the public, the extent of the strike, whether the Government is capable of providing the service instead of the strikers, whether the public has an alternative method of obtaining the strike-affected service, the length of the strike, etc.’

In that case, the court discussed how employees in the public sector have the freedom to strike, which is a basic right, and that there is no ground for prohibiting a strike in essential services on a sweeping basis. The court is required to apply the usual tools in collective employment law, including the principle of proportionality. Within this framework, it should examine, for example, whether the public will be harmed to an extent that requires the imposition of restrictions on the strike.

In the Electric Company case,² the National Labor Court held that as long as the employees’ representation is conducting negotiations in good faith on the employment conditions and rights of the company’s employees following the reform, the supply of electricity to the public is not adversely affected, and the company is not caused severe harm that cannot be remedied, the intervention of the court in the negotiations taking place with regard to the ramifications of the reform on employees’ rights will be limited. The National Labor Court also held that after taking into account the freedom to strike on the one hand and all of the considerations that need to be weighed against it on the other, and after examining the nature of the sanctions that the employees of the Electric Company are adopting in relation to the purposes that they are seeking to achieve, the sanctions satisfied the criteria of proportionality.

Notwithstanding the liberal approach that Israeli law adopts to the right to strike, there are several restrictions on the right to strike, which mainly apply to strikes in the public sector. First and foremost, Israeli law absolutely prohibits strikes in the police and the security forces. ³ In addition to this, the courts have held that a case where it was possible to resolve the work dispute by means of negotiation or mediation and this was not done may be regarded as an ‘abuse’ of the right to strike and justify the restriction thereof. Case law has also applied the principle of proportionality in order to restrict strikes where it has been found that their scope is not commensurate with the purposes of the strikers.⁴

What of strikes in industries whose activity is regarded as essential to the public? The Work Dispute Resolution Law provides that in the civil service it will be possible to dismiss employees who went on strike or to sue them if the strike is declared to be ‘unprotected.’ Three types of strike may fall within the scope of this term:

• A strike of civil servants when they are subject to a collective agreement;
• A strike of civil servants when they are not subject to a collective agreement, but the strike has not been declared or authorized by the competent institution or institutions for this purpose and in the proceedings provided for this purpose; and
• A strike with regard to which notice has not been given pursuant to the law.⁵
   

Pursuant to the Work Dispute Resolution Law, the ‘civil service’ to which the restrictions apply includes public services such as water, electricity, fuel, air transport, and also ‘healthcare services.’⁶ The premise of the law is that these services are essential for the public, and therefore there is a justification for imposing restrictions upon them.⁷ It therefore follows that industries that are regarded as ‘essential’ are admittedly susceptible from the outset to many more restrictions on the right to strike, but the actual restrictions relate mainly to procedural aspects, and they do not purport to restrict the right to strike merely because the service is an essential one. According to these criteria, the current work dispute declared by the physicians does not fall into the category of restrictions and there is no legal justification for restricting it.

In specific instances, case law has emphasized the importance of protecting the public interest during a strike. For example, in 2003 the National Labor Court considered the strike declared by the New Federation. The court permitted the Federation to strike, but held that the strike should not ‘endanger human life or public health’ and that ‘the public should not be deprived of essential services such as water and electricity.’ This decision was based, inter alia, on undertakings that the Federation took upon itself as a part of its struggle.⁸

Indeed, Israeli employment relations have experienced several strikes even in fields that are regarded as essential. For example, the employees of the Electric Company went on partial strikes in 1991 and 1994, the employees of Mekorot stopped the supply of water to several local authorities in 1999, and the employees of Ben-Gurion Airport shut down the airport in 2003.⁹ And of course the physicians have twice gone on prolonged strikes that were recognized and afforded legal protection, in 1983 and in 2002. Now we shall discuss these strikes in detail.

¹      LA (Nat) 19/99 Mekorot Water Company Ltd. – New General Federation of Labor, IsrLC 36, 560, at pages 575-576 (hereafter: ‘the Mekorot case’).

²      Supra, note 17.

³    HCJ 789/78 David Ofek et al. v. Minister of Interior et al. [1979] IsrSC 33(3) 480, at pages 481-489.

⁴      Supra, note 7.

⁵    Section 37A of the Work Dispute Resolution Law, 5717-1957.

⁶    Ibid.

⁷    LA (Nat) 1013/04 Discount Bank Ltd. v. New General Federation – MAOF Federation.

⁸    LA (Nat) 13/03 Tel-Aviv Trade Bureau and Trade Bureaus Association v. New General Federation of Labor.

⁹    Dreishpitz, supra, note 7.