Labor

Rights of Foreign Workers

Abstract:

Facts: Within the framework of an agreement between the fifth respondent and the Turkish Ministry of Defence, the State of Israel undertook that the fourth respondent would be given permits by the Israeli authorities to employ Turkish workers in Israel in the construction industry. According to the terms of these permits, the Turkish workers are only permitted to be employed in Israel by the fourth respondent. Following the decision of the court in Kav LaOved Worker’s Hotline v. Government of Israel [1], which set aside arrangements that restricted foreign workers in Israel to a specific employer as a violation of their human rights, the petitioners challenged the restrictive arrangement relating to the Turkish employees of the fourth respondent.

Held: (Majority opinion — Vice-President Rivlin and Justice Hayut) The arrangement in this case differs from the restrictive arrangements addressed in Kav LaOved Worker’s Hotline v. Government of Israel [1] in two major respects. First, unlike the foreign workers in Kav LaOved Worker’s Hotline v. Government of Israel [1], the Turkish workers do not pay substantial sums to manpower contractors to be allowed to come to Israel. Second, the rights of the Turkish workers are subject to the supervision of both the Turkish authorities and the Israeli authorities, which both have an interest in ensuring that the Turkish workers’ wages are paid and remitted to Turkey.

(Minority opinion — Justice Levy) The fact that the Turkish workers are not required to pay substantial sums to manpower contractors in order to come to work in Israel does not derogate from the fact that they are subject to a restrictive arrangement that prevents them from changing employers in Israel. The result of this is that they are unable to realize their market value in the work market. The restrictive arrangement thus violates the rights of the Turkish workers, and this violation is unconstitutional.

Petition denied, by majority opinion (Vice-President Rivlin and Justice Hayut), Justice Levy dissenting.

Voting Justices:

Rivlin, Eliezer

Primary Author

majority opinion

Levy, Edmond E.

Author

dissent

Hayut, Esther

Author

concurrence

Full text of the opinion:

HCJ 10843/04

1. Hotline for Migrant Workers

2. Kav LaOved Worker’s Hotline

1. Government of Israel

2. Minister of Interior

3. Minister of Industry, Trade and Employment

4. Yilmazlar International Construction Tourism and Textile Co. Ltd

5. Israel Military Industries Ltd (IMI)

The Supreme Court sitting as the High Court of Justice

[19 September 2007]

Before Vice-President E. Rivlin and Justices E.E. Levy, E. Hayut

Petition to the Supreme Court sitting as the High Court of Justice.

Petition denied, by majority opinion (Vice-President Rivlin and Justice Hayut), Justice Levy dissenting.

Legislation cited:

Companies Law, 5759-1999, s. 2.

Contracts (General Part) Law, 5733-1973, s. 30.

Courts (Mediation) Regulations, 5753-1993, r. 4A.

Employment Service Law, 5719-1959.

Hours of Work and Rest Law, 5711-1951.

Israeli Supreme Court cases cited:

[1] HCJ 4542/02 Kav LaOved Worker’s Hotline v. Government of Israel [2006] (1) IsrLR 260.

[2] HCJ 8155/03 A. Arenson Ltd v. Director of the Foreign Workers Department (not yet reported).

[3] HCJ 3541/03 A. Dori Engineering Works Ltd v. Government of Israel (not yet reported).

[4] HCJ 1963/04 Resido Fi. Bi. Ltd v. Ministry of Industry, Trade and Employment (not yet reported).

[5] HCJ 10692/03 Plassim Development and Construction Co. Ltd v. Prime Minister (not yet reported).

[6] CA 11152/04 Pardo v. Migdal Ltd [2006] (2) IsrLR 213.

[7] CrimA 11196/02 Frudenthal v. State of Israel [2003] IsrSC 57(3) 40.

[8] CrimA 7757/04 Borstein v. State of Israel [2005] IsrSC 59(5) 218.

[9] LCA 267/06 Yilmazlar International v. Yagel (unreported decision of 9 January 2006).

[10] HCJ 4999/03 Movement for Quality Government in Israel v. Prime Minister (not yet reported decision of 10 May 2006).

[11] HCJ 1030/99 Oron v. Knesset Speaker [2002] IsrSC 56(3) 640.

[12] CA 10078/03 Shatil v. State of Israel (not yet reported decision of 19 March 2007).

[13] HCJ 6427/02 Movement for Quality Government in Israel v. Knesset (not yet reported decision of 11 May 2006).

[14] HCJ 8111/96 New Federation of Workers v. Israel Aerospace Industries Ltd [2004] IsrSC 58(6) 481.

[15] CA 105/92 Re’em Contracting Engineers Ltd v. Upper Nazareth Municipality [1993] IsrSC 47(5) 189.

[16] CA 337/62 Riezenfeld v. Jacobson [1963] IsrSC 17(2) 1009; IsrSJ 5 96.

Israeli District Court cases cited:

[17] LCA (TA) 2782/05 Yilmazlar International v. Yagel (unreported decision of 4 January 2006).

Israeli Magistrates Court cases cited:

[18] CC 2992/05 (Ram) Yagel v. Nomdar (unreported decision of 4 September 2005).

Canadian cases cited:

[19] Dunmore v. Ontario (Attorney General) [2001] 3 S.C.R. 1016.

For the first petitioner — N. Levenkron, Y. Berman.

For the second petitioner — Y. Livnat.

For respondents 1-3 — A. Helman.

For the fourth respondent — T. Benenson.

For the fifth respondent — R. Wolf.

JUDGMENT

Vice-President E. Rivlin

The background to the petition and the arguments of the parties

1. In 2002, an agreement was signed between Israel Military Industries Ltd (IMI) and the Turkish Ministry of Defence to upgrade 170 Turkish Army tanks, for a sum of approximately 700 million dollars. The agreement included an undertaking on the part of the State of Israel to make reciprocal purchases in an amount of approximately 200 million dollars over a period of ten years, i.e., approximately 20 million dollars per annum. An undertaking of this kind for a reciprocal purchase, which is called an ‘offset arrangement,’ is intended as a rule to compensate local industry for sending sources of income and employment out of the country, as well as to create an economic balance so that together with the purchase from a party outside the country, foreign currency will also travel in the opposite direction, which in our case is from Israel to Turkey. There is therefore no dispute that, without the undertaking to make a reciprocal purchase, the Turkish Ministry of Defence would not have approved the transaction as a whole.

In 2003, it was agreed between IMI and the Turkish Ministry of Defence that a part of the offset undertaking to which IMI committed itself would be realized by means of granting a permit to the fourth respondent, Yilmazlar International Construction Tourism & Textile Co. Ltd (hereafter: the Yilmazlar company), a company registered in Israel with Turkish owners, to employ workers from Turkey in the construction industry. Within the framework of the agreement it was stipulated that the wages of the Yilmazlar company’s workers, less the amounts of money that the employees would keep for themselves for the purpose of their living expenses in Israel, would be sent directly to Turkey, and would be deducted from the offset debt. In order to ensure that most of the amounts that the Yilmazlar company’s workers would receive would indeed be sent to Turkey and be deducted from the offset liability, it was stipulated that at least 90 per cent of the Turkish workers who would be employed by the Yilmazlar company within the framework of the agreement would have families to support.

The aforesaid agreement was enshrined in government decision no. 2222 of 11 July 2004 (hereafter: the government decision). It was stipulated in the decision that the Yilmazlar company would receive a special permit to employ 800 foreign workers from Turkey in the construction industry during the years 2004-2007, without this leading to an increase in the overall maximum number of foreign workers in the construction industry. The petition before us was filed against this decision.

2. The petitioners before us — the Hotline for Migrant Workers and the non-profit organization Kav LaOved Worker’s Hotline — are challenging the aforesaid decision of the government. In their petition, they explain that the workers of the Yilmazlar company are not subject to the procedures that apply to other foreign workers in the construction industry in Israel with regard to the possibility of changing employers, but they are subject to the arrangement that existed before the aforesaid procedures were formulated. According to the previous arrangement, a worker may work solely and exclusively for the employer for whom he came to work in Israel, and when the contract between the worker and that employer ends, the validity of the worker’s entry visa and his permit to live in Israel expires. As a result of this, the workers of the Yilmazlar company are ‘bound’ to their employers. In view of the aforesaid, the petitioners demand that respondents 1-3 (hereafter: the respondents) apply to the workers of the Yilmazlar company the arrangements that apply to the other foreign workers in the Israeli construction industry. In particular the petitioners demand that the ‘change of employer’ procedure and the ‘closed skies’ procedure should be applied to the workers of the Yilmazlar company. The ‘change of employer’ procedure, it should be clarified, was intended to allow a worker to submit an application to change employers before he leaves his lawful employer or immediately after leaving him, if he proves that he was unable to submit the aforesaid application before he left. The procedure stipulates conditions that allow a worker to leave the employer whose name is stated in his permit and change over to a different employer, subject to the conditions and requirements stipulated therein. The ‘closed skies’ procedure allows in certain circumstances a worker who has been arrested for illegal residence in Israel to be released from custody and to obtain work with another employer. This is intended to provide a solution for employers who have a shortage of workers, in view of the closed skies policy. The petitioners therefore argue that the government decision, which provides that the Yilmazlar company’s workers shall not be subject to the aforesaid procedures, is an unreasonable decision that violates the basic constitutional rights of the workers.

3. The petitioners give details in their petition of several cases in which the Yilmazlar company’s workers applied, because of allegedly harsh and illegal conditions of work and wages, to change over to another employer within the framework of the ‘closed skies’ procedure. The applications of these workers were refused — so it is alleged — because the state relied on the government decision that is the subject of the petition. The petitioners argue that the Yilmazlar company’s workers suffer from harsh work conditions and meagre, illegal wages. They explain that the Yilmazlar company’s workers are recruited for the work in Turkey and are immediately required to sign a several-page agreement, without being given the possibility of reading the agreement and without being given a copy of it. It is alleged that the workers’ wages, without overtime, are less than the minimum wage required by law. The workers are required to sign a blank promissory note, which remains in the possession of the Yilmazlar company and allows it to attach the worker’s money and property unconditionally and for whatever amount that it sees fit to write in the promissory note. The petitioners further argue that when the workers come to Israel, their passports are taken from them; that in the first few months of their work, the Yilmazlar company does not pay their wages; that they work many hours each day and in rare cases they are even required to work almost a whole day without interruption; that the workers are not paid for overtime; that in some cases the workers are forbidden to leave the site after the workday ends without the approval of the work manager or they are required to return home no later than 10:00 p.m.; that at some sites the workers are forbidden to have cellular telephones; that if workers make a complaint, they are fined by the company and threatened that they will be dismissed and sent back to Turkey; and that the company has the habit of holding ‘threat meetings’ from time to time. The petitioners claim that the respondents’ policy, according to which they do not allow the Yilmazlar company’s workers to change over to another employer, gives Yilmazlar absolute power over its workers, who are compelled to suffer any condition and any stricture that is imposed upon them. They also say that the petition is filed as a public petition and that the petitioners do not include any worker of the Yilmazlar company who has been personally harmed by the company’s policy. The reason for this, according to the petitioners, is that the Yilmazlar company has succeeded in exploiting its absolute power over the workers in order to suppress any possibility of a ‘revolt’ against its conditions of work, as well as against the restriction upon changing over to another employer.

The petitioners raise a host of arguments against the government decision. Inter alia, they argue that the government decision with regard to the restrictive arrangement was made ultra vires and is contrary to the provisions of the Employment Service Law, 5719-1959, and contrary to the decision of a previous government; that it is a restrictive arrangement that violates the dignity and liberty of Yilmazlar’s workers, the freedom of occupation, the freedom of contracts and their freedom to enter into contracts; that the decision is contrary to public policy, contrary to the principle of equality and unreasonable. Finally they are of the opinion that we ought to decide that the offset transaction that was signed between the Government of Israel and the Government of Turkey is nothing more than trafficking in human beings.

4. The state argues at the beginning of its reply that no foreigner has an inherent right to work in Israel, and a foreigner certainly does not have an inherent right to work in any place of work where he wishes to work, for any employer whom he chooses. It argues that every state may make its willingness to allow a foreign national to enter and work in it conditional upon him working only for a specific employer for whose benefit a visa was issued to the worker. On the merits, the state is of the opinion that the government decision does not violate any inherent rights of the company’s workers and that there are objective and reasonable grounds that justify not applying the ‘closed skies’ procedure and the ‘change of employer’ procedure to the Yilmazlar company’s workers. The state argues that there are significant differences between the Yilmazlar company’s workers and other foreign workers. First, the state says that the Yilmazlar company’s workers do not, when they enter into a contract with the company, pay large sums of money for their actual employment in Israel. This is different from other foreign workers, who pay huge sums to manpower companies or other agents in return for their actual employment in Israel, and they are therefore subject to the possibility of exploitation by the employer. In view of the aforesaid, the state argues that a worker who is not satisfied with the terms of his employment with the Yilmazlar company and wishes to terminate his employment with it can return to Turkey without suffering serious economic loss as a result, and there is no ground or reason that justifies allowing him to remain in Israel and to work here. Second, the state claims that the Yilmazlar company’s workers are different from other foreign workers in Israel in that they are employed in Israel within the framework of an agreement that was made with the approval of the Turkish government and they are entitled to the protection of the Turkish government with regard to their rights as workers. Third, the state further argues that the State of Israel has a clear special interest in protecting the rights of the Turkish workers to earn proper wages and to receive their wages on time. It is emphasized that the State of Israel attributes great importance to carrying out the offset undertaking within the framework of the agreement with Turkey, both because of the serious economic consequences that could result from a breach of the undertaking and because of the negative consequences that could result from a breach of the undertaking in the sphere of Israel’s foreign relations with Turkey. The respondents say in this regard that the Turkish Ministry of Defence and the Israeli government check the conditions of employment of the Yilmazlar company’s workers. Thus a delegation from the Turkish Ministry of Defence visited Israel in order to check the conditions of employment of Yilmazlar’s workers. In addition, the Director of the Foreign Workers Department at the Ministry of Industry, Trade and Employment (hereafter: the Ministry of Industry) ordered a comprehensive investigation to be made of the conditions of employment of Yilmazlar’s workers at the various sites of the company throughout Israel. It is claimed that the findings of this investigation showed that, as a rule, the company’s workers are employed on fair conditions, their wages are not less than the minimum wage provided by law and their housing conditions at the company’s sites are reasonable. The state clarifies that where problems were found, a further check was made and this showed that most of the problems had been corrected, and it declares that, in any case, the department will continue to consider whether to take action pursuant to its powers under the law to prevent additional problems in the future. Finally, the state claims that the petitioners did not succeed in establishing their claim with regard to a systematic violation of the rights of the Yilmazlar company’s workers, and that in any case, even if there is a basis to their claims, nothing prevents the workers who are dissatisfied with their terms of employment from leaving their work and returning to Turkey.

5. The Yilmazlar company, the fourth respondent, requests in its reply that we deny the petition against it in its entirety. Yilmazlar claims that the petitioners, in their innocence, have been deceived by parties that have economic interests — employers and manpower contractors — who wish to devise a method of bringing foreign workers into the State of Israel, who will operate without supervision and in circumvention of the ‘closed skies’ policy of the Israeli government. Yilmazlar regrets the fact that the petitioners made no contact with it requesting to receive the relevant details and to clarify the truth of the claims raised against it. The company claims that the documents in its possession — salary slips, confirmations of the payment of wages by bank transfer, confirmations of direct payments to workers and work agreements — show that it fully complied with the employment laws, and that investigations that have been carried out, both by Turkish government authorities and by Israeli authorities, show this to be the case. Yilmazlar requests that we do not accept the affidavits of the three foreign workers on which the petition is based. It claims that a comparison of these affidavits with other affidavits, which were filed by workers in administrative petitions relating to them, show many contradictions and that many of the facts included in them are incorrect. Inter alia, Yilmazlar says that the workers keep their Turkish passports, which they claim was proved in the investigation carried out by the Ministry of Industry; that the workers, including the deponents, come to Israel after signing work agreements with Yilmazlar that are supervised and approved by the Turkish Ministry of Labour; that the terms of the agreements with them, including increases in wages, are punctiliously observed by Yilmazlar; that the Turkish Ministry of Employment controls the travelling of Turkish workers to Israel and supervises the procedure carefully; and that the fact that many of the workers who return to Turkey, including one of the petitioners’ deponents, wish to return to Israel and to be reemployed specifically by Yilmazlar shows that the employment is fair and the wages are proper and lawful. Yilmazlar claims that the offset agreement constitutes a golden economic opportunity for the Turkish workers, and that granting the petition and setting aside the agreement will inflict a mortal blow upon hundreds of Turkish workers who are employed by the company.

6. IMI, which was joined as a party to the petition at a later stage, is also of the opinion that it should be denied. It argues that the petition should be denied in limine because of delay in filing it, both because it was filed more than four months after the date on which the government decision was made, and because IMI was joined as a party to the proceedings another four months thereafter. IMI explains that the realization of the undertaking to make a reciprocal purchase — in an amount of tens of millions of dollars, and in accordance with predetermined timetables — involves lengthy and complex planning. It argues that setting the government decision aside will case IMI real and serious damage, since it will have difficulty, and maybe will not succeed at all, in complying with its undertakings to make a reciprocal purchase within the timetable that applies in this regard. IMI points out that Turkey is one of its important strategic targets. It argues that a failure to comply with the undertakings that IMI took upon itself is likely to result in fines in a sum of millions of dollars; damage to its chances of winning a further order for the project; the inclusion of IMI on the ‘blacklist’ of the Turkish defence establishment; exclusion from participation in additional tenders in Turkey in the military-security sphere; damage to IMI’s additional projects in Turkey; and damage to other joint projects between Israel and Turkey and the strategic relationship between the countries.

Decision no. FW/3 of the ministerial committee and Government Decision no. 4024

7. Before we turn to consider the merits of the petition, we should discuss several developments that have occurred since the court began hearing the petition. First, on 7 September 2005, the state filed an update statement, in which it gave notice that on 7 June 2005 the ministerial committee for the employment of foreign workers adopted a decision concerning the workers of the Yilmazlar company (hereafter: ministerial committee decision no. FW/3), which states the following:

‘1. a. Further to Government Decision no. 2446 of 15 August 2004 and Government Decision no. 2222 of 11 July 2004 [the decision that is the subject of this petition], it shall be determined that the permits that were given to Yilmazlar… to employ 800 foreign workers until the end of 2007 shall not be subject to the procedures concerning the employment of foreign workers through licensed corporations, and the Minister of Industry, Trade and Employment shall be directed to grant an exemption to the Yilmazlar company from paying the permit fees for employing those workers. In addition, the Ministry of the Interior shall be directed not to apply the transfer procedure and the change of employer procedure to the Yilmazlar company’s workers, subject to the decision of the Supreme Court in petition HCJ 10843/04, and at the same time the Director of the Foreign Workers Department at the Ministry of Industry, Trade and Employment shall be directed to carry out special periodic checks of the conditions according to which the company’s workers are employed, in order to ensure the payment of wages and ancillary benefits to the workers according to law.

b. It is clarified that only the government has the power to approve, in very exceptional cases, any additional arrangement for the bringing or the employment of foreign workers as a part of reciprocal purchase transactions.’

The update statement made it clear that the Minister of Finance submitted an objection to the aforesaid ministerial committee decision no. FW/3, and on 31 July 2005 the government adopted decision no. 4024 (hereafter: decision no. 4024), in which it decided, inter alia, to approve the aforementioned paragraph 1, which lies at the heart of this petition and which concerns the arrangement whereby the foreign workers are employed by the Yilmazlar company. The state, therefore, emphasizes that both the ministerial committee and the government directly considered the matter lying at the heart of the petition, and they decided, in the circumstances of the case, that the transfer procedure and the change of employer procedure should not apply to the 800 foreign workers who are employed by Yilmazlar. It is argued that the margin of discretion given to the government, as the executive branch of the state, with regard to the policy of employing foreign workers in Israel, is very broad. In view of the aforesaid, the state argues that Government Decision no. 4024 falls within the margin of reasonableness, and that there are no legal grounds for the court's intervention.

8. For their part, the petitioners filed a response to the update statement, in which they clarified that they stand behind everything stated in their petition and insist upon the relief sought therein. The petitioners claim that the decision of the ministerial committee and Government Decision no. 4024 do not change the position of Yilmazlar’s workers. Moreover, the petitioners emphasize that other foreign workers who work in the construction industry are no longer employed by construction companies, but through licensed corporations who supply manpower to the construction companies. As we said above, these workers are subject to the ‘closed skies’ procedure and the ‘change of employer’ procedure, which allow workers to change over from one manpower company to another once every three months. The petitioners argue that, by contrast, Yilmazlar remains the only construction company in Israel which has permits to employ non-Israeli construction workers directly, and whose workers suffer from being absolutely bound to their employer and from a continued violation of their rights.

9. On 8 February 2006, the petitioners filed an application to attach documents, which they claim are capable of shedding light on the harsh consequences of the arrangement under discussion in the petition, and of the violation of the rights of the Yilmazlar company’s workers. The documents that the petitioners wish to attach are the decisions of three instances of the courts in an action filed by the village of Yagel against the Yilmazlar company. In the action, the Yilmazlar company was requested to vacate a building in the village in which it had housed its workers. It was alleged that the company housed approximately one hundred of its workers in a building designed as a home for one family, thereby violating their rights. The petitioners claim that the Magistrates Court, the District Court and finally this Court accepted the factual contentions of the village of Yagel in this regard.

In response, Yilmazlar argues that the housing conditions of its workers are not a part of the petition, and the facts of this matter should be examined, if at all, in other proceedings. It argues that the citations from the judgments that the petitioners wish to attach are obiter remarks that were made within the framework of the hearing for a temporary order, before the actual claim was tried. Finally, Yilmazlar argues that inspectors from the Department for Enforcing the Employment Laws at the Ministry of Labour and Social Affairs made an inspection of the housing conditions of the workers who were housed in the village of Yagel. They argue that that the report that was compiled shows that the housing conditions of the workers were satisfactory and that Yilmazlar passed the inspection after correcting minor defects. Yilmazlar therefore wishes to attach to its submissions the report of the inspection of the foreign workers’ housing by the Department for Enforcing the Employment Laws of the Ministry of Labour and Social Affairs of 8 November 2005, and the report of the inspection after correcting the defects, in order to prove that there is no basis to the petitioners’ claims.

The judgment in Kav LaOved Worker’s Hotline v. Government of Israel [1]

10. On 40 March 2006, judgment was given by this Court in HCJ 4542/02 Kav LaOved Worker’s Hotline v. Government of Israel [1]. The petition in Kav LaOved Worker’s Hotline v. Government of Israel [1] was filed inter alia by the petitioners before us. In that petition it was claimed that the arrangement that bound foreign workers in Israel to one employer seriously violated the rights of those workers. The Supreme Court granted the petition. In a comprehensive judgment (written by Justice E. Levy, with the agreement of President A. Barak and Vice-President M. Cheshin), the court first considered the realities of the employment of foreign workers in Israel. The position of the workers was described (in paragraph 27 of the judgment) as follows:

‘A consideration of the reality of employing foreign workers in Israel during these years reveals a problematic and troublesome picture. It transpires that workers from foreign countries are able to come to Israel ab initio only after paying large amounts of money — sometimes involving the mortgaging of their property and taking out loans — to manpower providers and agencies. These amounts of money are shared between the manpower company in the country of origin and the manpower providers in Israel (State Comptroller, Annual Report no. 53b for 2002, at pp. 655-656; LabC (Hf) 1565/05 Rosner v. Ministry of Industry, Trade and Employment). In this manner:

“The profit involved in actually bringing the foreign workers from abroad (which arises from payments that the foreign workers are prepared to pay in their country of origin in return for the right to work in Israel) induces various manpower providers to bring foreign workers to Israel in as large a number as possible, whether there is work for them in Israel… or not” (Recommendations of the Inter-ministerial Committee, at p. 11).

The wages paid to foreign workers are in most cases low, and frequently even lower than the minimum wage. The State Comptroller’s Annual Report for 1999 found that:

“The main economic incentive for employing foreign workers is that they cost less than the Israeli worker, and that they are prepared to work without social benefits and on terms that are unacceptable to the Israeli worker… Foreign workers are the most vulnerable sector, from the viewpoint of breaching the Minimum Wage Law. Exploitation of foreign workers by employers can also be seen from a survey conducted by the Manpower Planning Authority in 1998 with regard to foreign workers in Israel without a permit. Approximately 70% of those interviewed earned less than the minimum hourly wage…” (State Comptroller’s Annual Report for 1999, at pp. 278-279).

Even the work and subsistence conditions offered to foreign workers are poor, and many of them find themselves living in crowded accommodation and unpleasant living conditions (see State Comptroller’s Annual Report for 1995, at pp. 476, 493; CrimC (Jer) 106/03 State of Israel v. Mordechai Aviv Construction Enterprises Ltd). They do not benefit from the effective protection of protective legislation (see O. Yadlin, “Foreign Work in Israel,” Menachem Goldberg Book (A. Barak et al. eds., 2001), at p. 350 and the references cited there; LabC (BS) 1347/03 Atzova v. Sansara Health Club Management Ltd); they are exposed to abuse, exploitation and oppression (see LCrimA 10255/05 Hanana v. State of Israel; see also the Report of the Ministry of Justice, Ministry of Labour and Social Affairs and the Ministry of Foreign Affairs, Implementation of the International Covenant on Economic, Social and Cultural Rights (1997), at p. 27), and they find it difficult, inter alia because of a lack of the knowledge and the funds that are required in order to pursue a legal recourse, and because of their great dependence on their employers, in bringing their cases to the courts (see LabA 1064/00 Kinianjoi v. Olitziki Earth Works, at p. 638).’

Against the background of this harsh reality, the court reached the conclusion that the arrangement that restricts a worker to one employer violates the basic rights of the foreign workers to dignity and liberty. The court explained that in view of the large sums that the worker invests in acquiring the possibility of working in Israel, the connection between the residency permit in Israel and working for one employer seriously violates the foreign worker’s autonomy of will, which constitutes a central part of the human right to dignity. It was held that the restrictive employment arrangement means that the act of resignation, which is a legitimate act and a basic right of every worker, is accompanied by a serious sanction — the person who wishes to terminate the employment relationship loses the licence to live in Israel. This involves a violation of the worker’s right to operate in the work market as a free agent. The judgment explains that:

‘Associating the act of resignation with a serious resulting harm is equivalent to denying the individual of the possibility of choosing with whom to enter into a contract of employment, and compelling a person to work in the service of another against his will. This not only violates the right to liberty, but it creates a unique legal arrangement that is by its very nature foreign to the basic principle of employment law, the moral value of the employment contract and the basic purpose of the employment contract in guaranteeing the economic survival, dignity and liberty of the worker. It gives the employer of the foreign worker an enforcement tool that is unrecognized in our legal system, which has freed itself of the idea of enforcing employment contracts (see s. 3(2) of the Contracts (Remedies for Breach of Contract) Law, 5731-1970). It deprives the worker of the basic ability to negotiate for the remuneration that he will receive for his work potential, and for the terms of his employment and his social benefits’ (Kav LaOved Worker’s Hotline v. Government of Israel [1], at para. 32).

The court went on to hold that the arrangement that binds a worker to one employer does not satisfy the proportionality test. In view of the aforesaid, the court ordered the respondents:

‘…to formulate a new employment arrangement, which is balanced and proportionate, with regard to foreign workers in these industries. This should not be based on the restriction of the worker who comes to Israel to a single employer, and it should refrain from linking the act of resigning with any sanction, including the loss of the status in Israel.’

11. Following the judgement in Kav LaOved Worker’s Hotline v. Government of Israel [1], the parties were asked to notify the court of their position with regard to the ramifications of the aforesaid judgment on the petition before us. From the statements of the parties it can be seen that both the petitioners and the respondents have not changed their positions. According to the petitioners, the judgment in Kav LaOved Worker’s Hotline v. Government of Israel [1] strengthens their petition and what is stated therein applies a fortiori to the specific restrictive arrangement of the Yilmazlar’s company’s workers. The petitioners are of the opinion that the arrangement that is the subject of this petition should also be set aside, since it is a unique and even more drastic arrangement than the arrangement that previously governed all of the foreign workers in Israel. For their part, the respondents are of the opinion that Kav LaOved Worker’s Hotline v. Government of Israel [1] does not have any effect upon their response. According to them, there is a material and relevant difference between the workers of the Yilmazlar company and the other foreign workers, who are required to pay large sums of money in order to come to Israel. The respondents are of the opinion that in view of the special employment arrangements of the Yilmazlar workers, the additional supervision of their employment, the fact that that this is an exceptional and special arrangement and the fact that the arrangement is supposed to continue only until the end of 2007, a distinction should be made between the specific case in this petition and the general question considered in Kav LaOved Worker’s Hotline v. Government of Israel [1].

Consideration of the arrangement that applies to the Yilmazlar workers

12. No one disputes that the offset arrangement between the Turkish government and IMI, which is the background to this petition, involves important public interests of the State of Israel. Granting the petition, by ordering the state to apply to the workers of the Yilmazlar company the arrangements that apply to all the foreign workers in the construction industry, in so far as this concerns the ability to change employers, is likely to result in serious damage to essential interests of the state, since it will lead to one of two possibilities. The first possibility is that the Yilmazlar company will be given an opportunity to employ new workers from Turkey, as replacements for workers who leave it and change over to other employers. This course of action will allow foreign workers to be brought into Israel without any limit, which is completely contrary to the ‘closed skies’ policy that the government adopted in order to limit the number of foreign workers and to encourage Israelis to re-enter the work market. The respondents explain that this policy has, in the last two years, resulted in thousands of new Israeli workers joining the construction industry. It has also been approved in several decisions of this Court, which has held that it contains no flaw and that there are no grounds for court intervention (HCJ 8155/03 A. Arenson Ltd v. Director of the Foreign Workers Department [2]; HCJ 3541/03 A. Dori Engineering Works Ltd v. Government of Israel [3]; HCJ 1963/04 Resido Fi. Bi. Ltd v. Ministry of Industry, Trade and Employment [4]; HCJ 10692/03 Plassim Development and Construction Co. Ltd v. Prime Minister [5]). The second possibility available to the state is that it will not allow Yilmazlar to bring new workers from Turkey to replace those workers who have changed over to other employers. It should be noted that the employment of a worker who changes over to any employer other than the Yilmazlar company, which as we said above has Turkish owners, will not be credited to the implementation of the reciprocal purchase undertaking, unless the Turkish Ministry of Defence approves the identity of the employer. Consequently, this course of action will lead to a breach of the offset agreement with Turkey, and the respondents assert that it is likely to result in serious damage to IMI in particular, and to Israel’s foreign relations and security in general. In this regard, the state emphasized the great importance of the strategic relationship between the State of Israel and Turkey and the fact that Turkey is one of Israel’s most important allies.

13. Indeed, the concern that important interests of the state may be harmed carries great weight. However, in the case before us, I have reached the conclusion that in and of itself this concern need not lead to the denial of the petition because I am persuaded that the petition is unjustified on its merits and that the rights of the foreign workers, whom the petitioners wish to protect, are not being violated to a degree that justifies our intervention.

The position of the Yilmazlar company’s workers is incomparably different from the position of the foreign workers whose case was considered in Kav LaOved Worker’s Hotline v. Government of Israel [1], because of a combination of several factors that are all present in our case. First, there is no dispute that the workers of the Yilmazlar company are not required to pay large sums of money in order to come to Israel for the purpose of working for Yilmazlar. In the judgment in Kav LaOved Worker’s Hotline v. Government of Israel [1], the court emphasized that:

‘The question whether the restrictive employment arrangement violates the rights of the employee to dignity and liberty cannot be considered in a vacuum. It should be considered in view of the reality of the employment of foreign workers in Israel. It should be sensitive to the complex circumstances that led to the possibility of foreign workers coming to Israel in the first place. It should take into account the special status of the group of foreign workers in the Israeli work market — a group that is composed of weak, “temporary,” poor and unorganized workers. It should take into account the huge disparity in forces between the foreign worker and the state that is allowing them to enter its work market on its terms , and the manpower agencies and companies that operate in this work market’ (Kav LaOved Worker’s Hotline v. Government of Israel [1], at paragraph 28; emphasis supplied).

Indeed, the court went on to discuss this reality. It explained that:

‘… foreign workers that come to Israel to work here do so against a background of economic distress and their desire to provide for their families. In the process of coming here, they are charged, not infrequently, large sums of money, which in terms of what is customary in their countries of origin are sometimes enormous, in return for arranging their coming and staying in Israel. For these reasons, deporting them from Israel before the worker has the opportunity of earning an amount of money that is at least sufficient to “cover” his debt is an action that deals a mortal economic blow to the worker and his dependents’ (Kav LaOved Worker’s Hotline v. Government of Israel [1], at paragraph 28; emphasis supplied).

Later the court said:

‘…according to the restrictive employment arrangement the residence permit given to the foreign worker who comes to Israel is conditional upon him working for a specific employer whose name is stipulated in the residence permit. A termination of the work for this employer, whatever the reason for it may be, means that the permit to reside in Israel expires. In view of the money and the effort that the foreign worker invests in “acquiring” the possibility of working in Israel for a fixed period, it is clear that this connection between the validity of the residence permit and the work for a single employer seriously violates the autonomy of his will…’ (Kav LaOved Worker’s Hotline v. Government of Israel [1], at para. 31; emphasis supplied).

The conclusion of the court in the aforesaid Kav LaOved Worker’s Hotline v. Government of Israel [1] was therefore based to a large extent on the factual background. In the case before us, as we have said, the position is different: the Turkish workers are not required to pay huge amounts to middlemen or to manpower companies in order to come to Israel to work for Yilmazlar. The opposite is true: Yilmazlar pays the cost of bringing the workers to Israel, including the costs of medical checks, flights to Israel and medical insurance. In view of the aforesaid, and as the respondents justly point out in their replies, an employee of the Yilmazlar company who is not satisfied with his conditions of employment may terminate his work relationship with the company, return to his country of origin, and this too is at Yilmazlar’s expense (except in exceptional cases where the worker is dismissed because of damage and loss that he deliberately and wilfully caused to the company), without the worker being encumbered by any significant debt. Indeed, a foreign worker who enters Israel within the framework of the offset arrangement does not have any acquired right to work in Israel; he certainly does not have an acquired right to work at any place of work that he wishes and for any employer that he chooses. Notwithstanding, a worker who has returned to Turkey can, if he so wishes, take the necessary steps in order to be employed by another Israeli employer, like any foreign national who wishes to be employed in Israel.

14. Moreover, I have been persuaded that there is a significant difference between the Yilmazlar workers and other foreign workers. This difference finds expression in a host of other parameters: the procedure of making a contract with Yilmazlar’s workers is carried out under the auspices and supervision of the Turkish government; the employment agreement with the workers is drafted and prepared by the Turkish Ministry of Labour together with the Turkish Ministry of Defence; the agreement is written in Turkish, the mother-tongue of the workers, and a copy of it is kept in the file that is maintained by the central management of the Turkish employment office; the work agreement is signed in Turkey as a three-party agreement by the worker, the Yilmazlar company and also a representative of the Turkish Ministry of Labour; the agreement grants the Yilmazlar workers a right to sue Yilmazlar even in Turkey. In this respect, their situation is also different from other foreign workers, since the deportation of the latter from Israel to their country of origin is likely to make it impossible for them to pursue their rights against their Israeli employer. With regard to the work conditions of the Yilmazlar company’s workers, the employment of these workers requires compliance with very strict conditions that were determined by the Turkish authorities. The respondents declare that the workers enjoy good working conditions, which includes receiving three meals a day, housing and medical insurance that are all paid for by Yilmazlar. The activity of the Yilmazlar company, in so far as it concerns the protection of the rights of the Turkish workers employed by it in Israel, is subject to the institutional supervision and strict review of several bodies, both on the Turkish side and on the Israeli side: the Turkish Ministry of Labour recruits the workers, prepares the work agreement with them and signs it, as aforesaid, as a third party, together with the worker and the Yilmazlar company. In this way, it is possible for the Turkish authorities to monitor the conditions in which the workers are employed. It was also stated that a delegation from the Turkish Ministry of Defence actually visited Israel in order to check the employment conditions of the Yilmazlar workers; the Turkish authority that supervises the offset arrangement supervises the transfers of the money and payments to the workers. The money (at least 75% of the workers’ salaries) is transferred to a central account that is managed in a bank in Turkey and from that account the money is transferred to the private accounts of the workers. From the Israeli side, there is an equal degree of supervision: IMI sends the Turkish authorities copies of all the transfers of money to the workers’ accounts and in return it benefits from a credit for the reciprocal purchase in the total amount of those transfers; the Israeli Ministry of Industry, which is responsible for the performance of the offset agreement, conducts inspections of the Yilmazlar company. As the state explained in its reply, the Foreign Workers Department at the Ministry of Industry carries out checks at the company’s sites throughout Israel. In the most recent check that was made, it was found that all of the company’s workers are employed in decent conditions, their wages are not less than the minimum wage provided by law and their housing conditions at the company’s sites are reasonable. The state also declared that in places where problems were found, a further inspection was made, and this showed that most of the problems had been corrected. The state further declared that the Foreign Workers Department will continue to check that measures are taken in accordance with its powers under the law in order to prevent additional problems in the future. It will be remembered that in decision no. FW/3 of the ministerial committee, which was approved in Government Decision no. 4024, it was stated that:

‘The Director of the Foreign Workers Department at the Ministry of Industry, Trade and Employment shall be directed to carry out special periodic supervision of the conditions of employment of the company’s workers, in order to ensure the payment of wages and ancillary benefits to the workers according to law.’

In addition, the Israeli Ministry of Labour and Social Affairs is also carrying out checks, on a regular basis, of the manner in which Yilmazlar treats its workers.

15. From all of the aforesaid and after reviewing all the additional documents in the application to attach documents, it transpires that the position of the Yilmazlar company’s workers is materially different from the position of the foreign workers whose case was considered in the aforesaid Kav LaOved Worker’s Hotline v. Government of Israel [1]. In the circumstances described, I am satisfied that the rights of Yilmazlar’s workers are being protected, thanks to the strict supervision that is imposed both from the Turkish side and from the Israeli side. Indeed, the arrangement under review in this petition is an unusual and special arrangement. Counsel for the state emphasized that, according to Government Decision no. 4024, it will not be possible in the future to make an additional arrangement to bring foreign workers to Israel or to employ them as a part of reciprocal purchase agreements without the approval of the government. In view of the state’s foreign affairs and security interests that are in the balance, the fact that the arrangement under discussion is supposed to continue only until the end of this year, and that the workers’ terms of employment were dictated by the Turkish government, which has a sincere concern for the conditions in which its citizens are employed, there are no grounds for granting relief to the workers. This is especially so when considering that it is questionable whether they want such relief. I propose to my colleagues that the petition should be denied.

16. I have studied the comprehensive opinion of my colleague Justice E.E. Levy and the opinion of my colleague Justice E. Hayut. I agree in principle with everything stated in them. Indeed, no one could dispute that the restrictive employment arrangement is highly undesirable, and that its causes very great harm to the foreign workers.

In the course of his wide-ranging opinion, my colleague devoted approximately two pages to an examination of the ‘actual harm’ to the Yilmazlar workers. In his consideration of the concrete expression of the harm to the workers, my colleague reaches the conclusion that ‘the factual picture is not entirely clear,’ but he determines that, from his point of view, it is sufficient that there is ‘a real concern that arises from the case that the rights of the Yilmazlar workers may be violated in various respects.’ The heart of the matter, in his opinion, is therefore ‘the normative situation created by the Government Decision’ (paragraphs 19 and 20 of his opinion; emphasis in the original). It should be noted that this is the point of dispute between us: I agree with the rule held in Kav LaOved Worker’s Hotline v. Government of Israel [1] as well as with the vast majority of the legal analysis put forward by my colleague in the course of his opinion in this case. But, I am of the opinion that this Court cannot consider the legal position without reference to the actual factual position. In our case, we are dealing with a special group of workers, and in the special circumstances that have been brought before us. As I have emphasized and I emphasize once again, there is no basis for granting the petition.

17. In the case before us, it is not possible to examine the specific work relationship between the parties — the foreign worker on the one hand and the employer on the other — without reference to all of the factors that are involved in the transaction between them. In the case before us, the contract between the foreign workers and Yilmazlar is based on the agreement between the Israeli and Turkish governments, with the respective supervision mechanisms contained therein, which constitute a kind of ‘collective protection’ for Yilmazlar’s workers. The fundamental agreement between the governments strengthens the position of Yilmazlar’s workers; these workers benefit ab initio from a different status than that of other foreign workers, since the Turkish government represents them, conducted the negotiations concerning their terms of employment and is responsible for ensuring that the terms that were agreed to are upheld. In the present case, the protection of the rights of Yilmazlar’s workers does not rely solely on the goodwill of the employer, but involves international political interests, which arise from the relationship between the two countries. Thus, the Yilmazlar workers are employed within the framework of a government arrangement, by virtue of a political agreement, which imposes on the private subcontractor (Yilmazlar) duties that do not apply in general to private manpower contractors. We cannot ignore the clear purpose of the offset agreement between the two countries, which is the background to the employment of the workers. Whereas, as a rule, the assumption is that the employer, who is motivated by economic interests, is likely to minimize his workers’ rights, in the present case it is in the interest of the Turkish government that foreign currency—the workers’ wages—will flow into it. In these circumstances, the Turkish government can be presumed to ensure that the economic value that was agreed to will actually be transferred, since this is the main declared and agreed purpose of the agreement.

18. Finally, I should point out that a consideration of the operative consequences of my colleague’s opinion raises the question of whether, if the outcome proposed by him is adopted, the condition of Yilmazlar’s workers will actually be improved. Since a cancellation of the open skies policy is no longer a possibility, adopting my colleague’s position would lead to the cancelling of the offset agreement, and, as a consequence thereof, completely denying the Yilmazlar workers the possibility of earning their livelihoods in Israel. I think that, in view of the serious state of the Turkish job market, which my colleague also discusses in his opinion, the actual harm that such a decision will cause the Yilmazlar workers is very serious indeed, and is far greater than the theoretical concerns raised by my colleague. The interests and concerns of the foreign workers are the main focus of my decision. I also agree with the remarks of my colleague, Justice E. Hayut, that we are dealing with an agreement that is limited in time and subject to special supervision, and that any change will justify a reconsideration of the matter by this Court.

Justice E.E. Levy

1. On 30 March 2006, this Court held that a procedure that made the entitlement of a migrant worker to a residency and work licence in Israel conditional upon his remaining with the employer whose name is stipulated in the licence was void because it violated basic rights excessively (HCJ 4542/02 Kav LaOved Worker’s Hotline v. Government of Israel [1]). It was held that the procedure blatantly conflicted with a major principle in labour law — the right of a person to cease working for an employer with whom he no longer wants to be associated, without this involving such a serious sanction that it makes the termination of the employment relations not worthwhile. If you deny this right of someone — and with it the fundamental principle of competition between employers — there is a significantly greater risk that his rights as an employee will be violated. This violation, as we know, frequently results in serious cases of exploitation. It deprives the worker of the only real protection that he has — his "market value". Thus, in the absence of any sense of moral responsibility, which it would appear many people have long forgotten, it is as if we have removed the last barrier preventing the dissemination of the outlook that seeks to blur the image of the worker as a human being and to reduce his existence to being no more than a pair of working hands, a machine to be used by the employer. In the works of Aristotle:

καὶ ὁ δοῦλος κτῆμά τι ἔμψυχον, καὶ ὥσπερ ὄργανον πρὸ ὀργάνων πᾶς ὑπηρέτης. [Greek letters unclear in source – Trans.]

‘And the slave is a living possession, and every slave is like a tool that is preferable to all others’ (Aristotle, Politics 1, 21).

The fundamental case law ruling that the restrictive arrangement is void remains valid, even if it has not been implemented in full (see the decisions of October-December 2006 in the aforesaid Kav LaOved Worker’s Hotline v. Government of Israel [1]; see also Hotline for Migrant Workers and Kav LaOved Worker’s Hotline, Binding Migrant Workers to Corporations, 11 (March 2007), and Freedom Inc. — Binding Migrant Workers to Manpower Corporations in Israel, 14, 38 (August 2007)). It created a new legal position, in which the law is no longer prepared to tolerate the making of arrangements of this kind. It plays a major role in the normative framework in which migrant workers are employed in Israel. It looks equally to the present and the future. It binds all the organs of government, and in particular the government. As long as it is valid, it is also the concern of the court, whether it is this Court, the administrative courts, the labour courts or the detention courts.

2. The ink has not yet dried on that ruling, and the question of employment restrictions has once again come before us. This time, it is alleged, it takes a different form, which should be distinguished from the case that we decided. It presents us with a specific and special arrangement that is based on important security, economic and political interests. This arrangement is limited in scope and prima facie concerns no more than several hundred workers. The seriousness of this arrangement is reduced — so it is alleged — because of the low level of the violation of rights that is actually inflicted. In all of this my colleague Vice-President Rivlin found a basis for departing from the case law ruling that was made. My position is different. Adopting my colleague’s approach means nothing more than turning the normative clock back and returning to a previous legal position that was found to betotally unacceptable. Were my opinion heard, we would hold that the restrictive element in the Government Decision cannot stand, because it is inconsistent with the provisions of the prevailing law.

Restrictive arrangements come in many forms but have the same result

3. In Kav LaOved Worker’s Hotline v. Government of Israel [1] my colleagues and I discussed briefly the negative effects of restricting foreign workers to one employer, throughout the world in general and in Israel in particular (see, inter alia, paragraphs 24 and 38 of that decision and the citations there). I personally wonder whether the normative position that was set out in that case was not clear enough. I will not mention my own comments there, but can anyone who reads the judgment not be be disturbed by the profound question of Vice-President Cheshin who asked —

‘What has happened to us that we are treating the foreign workers, those human beings who leave their homes and their families in order to provide for themselves and their families, in this way? We are overcome with shame when we see all this, and how can we remain silent?’ (ibid., at paragraph 4 of his opinion).

It is therefore incumbent upon us, and this time with even greater force, to reemphasize the gravity of the harm caused by restrictive employment mechanisms, and the immense injustice caused by their toleration. By considering these, we will also find an answer to the claims that are unique to the case before us.

4. Throughout the world there are arrangements that apply to migrant workers, which, despite the many ways in which they are expressed, the different methods that they adopt and the various sectors of industry to which they apply, all have a similar purpose — to restrict an employee to one employer. By denying the employee of the natural protection inherent in the idea of the free market, the restrictive arrangement exposes him to violations of his rights concerning wages, including the payment of lower wages than the minimum wage provided by law and prohibited deductions from the wages actually paid, to the imposition of hours of work that are far longer than those permitted, to the seizing of travel papers by employers as a means of guaranteeing the continued existence of the work relationship, to poor quality housing, to the denial of proper medical care, to forced movement from one work site to another, and not infrequently also to sexual abuse and actual imprisonment. Where it concerns the treatment of migrant workers there is a considerable, surprising and most regrettable similarity between countries that are very distant from one another and between peoples who are completely foreign to one another. .

5. A description of some of these phenomena in Israel was given by the State Comptroller in reports that he issued (State Comptroller, Annual report no. 49 (1998), at page 279; State Comptroller, Annual Report no. 55b (2005), at p. 379). Scholars have also written about them (see, inter alia, Amiram Gill and Yossi Dahan, ‘Between Neo-Liberalism and Ethno-Nationalism: Theory, Policy, and Law in the Deportation of Migrant Workers in Israel,’ 10 Mishpat uMimshal (Law and Government) 347 (2006), at p. 361; Adrianna Kemp and Rivka Reichman, ‘“Foreign Workers” in Israel,’ 13 Information on Equality and Social Justice in Israel 1 (2003), at p. 13). They were well described in the annual journal of the Israeli Society for Labour Law and Social Security for 2004:

‘The “restrictive arrangement” has led to widespread and serious phenomena of abuse and violations of the human rights of foreign workers. Many employers have exploited foreign workers in various ways. Workers are “charged” for fees and taxes that they [the employers] are liable to pay to the state, huge sums are deducted from the salaries of foreign workers on various pretexts and the workers are housed in wretched conditions. A large number of employers do not pay the foreign workers for all the hours during which they work, they pay less than the minimum wage and they do not pay overtime. Many employers do not pay medical insurance for their workers, and they shirk responsibility for them when they are hurt in work accidents and need medical treatment’ (Sharon Asiskovitch, ‘The Political Economy of Migrant Workers in Israel and the Immigration Policy vis-à-vis Foreign Workers in the 1990s,’ 10 Labour, Society and Law 79 (2004), at p. 90).

6. But the negative consequences of restricting workers to their employers are not found in Israel alone. In Great Britain the recognition of the serious harm caused by this restriction to foreign domestic workers led to the amendment of the law in 1998 and the cancellation of the restriction (recently human rights organizations are warning of its return, de facto, because of government policy. See Kevin Bales, Disposable People: New Slavery in the Global Economy (2000), at page 28; Kate Roberts, ‘An important progressive response to globalisation is about to be reversed,’ Compass (May 22nd, 2007)). In Italy migrant workers are compelled to endure harsh treatment by their employers, since an attempt to change employers results in immediate deportation from the country and a three-year ban upon returning to work there (John Wrench, Migrants and Ethnic Minorities at the Workplace — The Interaction of Legal and Racial Discrimination in the European Union (Danish Centre for Migration and Ethnic Studies, Papers, Migration No. 19, 1997), at p. 29). In the United States the restriction of a whole sector — seasonal migrant workers whose main occupation is in agriculture — is a key factor in the serious exploitation of migrant workers by their employers. A comprehensive report, which was published this year by an American human rights organization, discussed this relationship between the restrictive arrangement and the violation of the rights of temporary migrant workers, who are sometimes treated like commodities:

‘Unlike U.S. citizens, guestworkers do not enjoy the most fundamental protection of a competitive labor market – the ability to change jobs if they are mistreated. Instead, they are bound to the employers who “import” them. If guestworkers complain about abuses, they face deportation, blacklisting or other retaliation… They are the foreseeable outcomes of a system that treats foreign workers as commodities…’ (Southern Poverty Law Center, Close to Slavery — Guestworker Programs in the United States (2007) 1, 2, 33-40).

7. Some people regard restrictive arrangements as a means used by the host countries to keep the migrant workers apart and estranged from society, and to make them a cheap and available work force that can only be employed in difficult and unattractive jobs. The direct link between being bound to one employer, on the one hand, and a reduction in the wages paid and the migrant worker being forced to the bottom of the work ladder, on the other, was well illustrated by what is happening in the labour markets in East and South Asia (Stuart Rosewarne, ‘The Globalisation and Liberalisation of Asian Labour Markets,’ 21 World Economy 963 (1998), at page 973) as well as in Canada (Nandita Sharma, ‘On Being Not Canadian: The Social Organization of “Migrant Workers” in Canada,’ 38 Canadian Review of Sociology and Anthropology 415 (2001), at pages 425, 433). This was also discussed in a working paper describing the territory of Macao in China, which each year attracts a significant number of migrant workers:

‘[Scholars] have gone a long way to expose the role of the state in keeping the migrant workers “cheap” and “flexible.” The state has constructed a regulatory system in managing this category of foreigners. Many of these mechanisms are legislated into laws. Typically, migrant workers are denied the right to change employers. Since the ability of foreign workers to switch employer is severely curtailed, they are forced into a status of bonded labour and thus allow their employers to pay them a rate below that of the local workers’ (Alex H. Choi, ‘Migrant Workers in Macao: Labour and Globalisation,’ Southeast Asia Research Centre Working Paper Series no. 66 (2004), at page 6).

In the United Arab Emirates, migrants that constitute the majority of the work force, are forbidden to change employers during their first two years and thereafter can only do so with the employer’s consent. A particularly serious consequence of this is in the construction industry, where dozens of migrant workers lose their lives every year as a result of poor safety conditions. Dozens of others, in their distress, take their own lives. Others do not receive wages on time, live in poor conditions and are compelled to work long hours. All of this is because the employers regard themselves as not needing to compete for the market value of the worker (Hassan M. Fattah, ‘In Dubai, an Outcry from Asians for Workplace Rights,’ The New York Times (March 26th, 2006)). This was discussed by the international human rights organization, Human Rights Watch, in a comprehensive report published last year:

‘In most other places, a worker faced with hazardous working conditions and unpaid wages, in a free market economy that has an extreme shortage of labor, would move to a different job. But this is not an option for the migrant construction workers of the UAE, who like all other migrant workers in the country are contracted to work only for a specific employer’ (Human Rights Watch, Building Towers, Cheating Workers – Exploitation of Migrant Workers in the United Arab Emirates (2006), at p. 13).

8. But what happens around the world does not only include direct restrictive arrangements. Sometimes the arrangements in the law take on an indirect guise, so that it appears that they originate in the free will of workers, even though this is not the case. The United States also provides an example of this. Not many years ago, in 2000, the American legislator addressed the impropriety whereby foreign skilled workers were subject to restrictions by law and repealed it (S. 2045 American Competitiveness in the Twenty-first Century Act of 2000, Pub. L. 106–313, title I, § 105, Oct. 17, 2000 (8 USCS §1184(n))). These workers are therefore allowed to change employers, but few of them take advantage of this, since their loyalty to a single employer is almost always an essential condition for recognition of their entitlement to a permanent residency visa (‘green card’). The strong desire to obtain this visa results in most workers binding themselves to an employer for many years. The direct and obvious result of this constraint — which as we have said appears to be a voluntary act deriving from freedom of choice — is the lack of competition for the workers, and consequently a significant worsening of their terms of employment. The figures show that even though these are skilled workers, including engineers, software and hi-tech personnel (who include, incidentally, no small number of Israelis), the wages paid to them are significantly lower than their American counterparts, they are compelled to work far more than the customary number of hours and they are harmed in other ways (Mark Krikorian, ‘Slave Trade: Permitting Guest Workers Sounds like the Perfect Solution to the Immigration Imbroglio: Look Again,’ National Review (September 14th, 1998); Norman Matloff, ‘On the Need for Reform of the H-1B Non-Immigrant Work Visa in Computer-Related Occupations,’ 36(4) University of Michigan Journal of Law Reform 50 (2003), at page 64).

9. Additional aspects of an indirect restrictive arrangement, which results in workers refraining from changing employers and suffering unfair treatment and the loss of basic rights, may also be found in the following two measures. The first of these is where workers are required to sign promissory notes for large amounts or for unstated amounts, which allows the employer to sue the workers for large amounts of money at will and for any reason that he chooses. According to the petitioners, Yilmazlar’s workers were required to sign such promissory notes. The second is where there are ‘blacklists’ by means of which employers work together to blacklist workers who have the temerity to complain about their conditions of employment. Being blacklisted has serious consequences, since not only does the complaint result in many cases in an immediate termination of the work and deportation, but in the future also, even if those workers have a right in principle to ask for another work permit, they will have difficulty in finding someone who will be willing to employ them.

The restrictive arrangement and the alleged consent

10. Only a consideration of the complexity of the issue of restrictive arrangements, with the multitude of situations that it manifests, allows us to understand the real difficulty faced by migrant workers, for whom the restriction to one employer — whether overt or concealed, whether official or de facto, whether clearly the result of coercion or apparently the result of the worker’s free choice — is a main source of the violation of their rights. It is clear to everyone that were migrant workers not prepared to suffer the restrictive arrangement, because they have no choice, the restrictive arrangement would never have come into existence. Were the workers to make their arrival in the host country conditional upon their ability to change employers, were they to apply on a constant basis to the courts and to enforcement agencies in government ministries for help and receive a positive response, and were they to refrain from working under the restrictive arrangement system, then it is doubtful whether it would survive for long. Similarly, were they to refuse poor employment conditions, the employers would be compelled to improve them.

Does this lead us to the conclusion that the responsibility for the restrictive arrangement should be imputed to those who suffer from it? Do migrant workers bring upon themselves the wrongs that they suffer, by continuing to look for employment despite what they know of it? Should they complain to no one other than themselves for choosing to look for work abroad? This is exactly how we should understand the argument of the respondents before us. This can also be seen from an approach that, regrettably, has obtained some credibility in the public debate concerning migrant work in Israel. It was written in one research paper that the treatment of migrant workers ‘is based today on a contractual-commercial approach, according to which the consent of the migrant workers to accept the “rules of the game” makes the rules legitimate’ (Ofer Sitbon, ‘The Role of Courts in Israel and France in Designing the Policy towards Migrant Workers,’ 10 Mishpat uMimshal (Law and Government) 273 (2006), at page 278). This was well described by Professor Guy Mundlak:

‘One of the arguments raised in the public debate is that the discussion of the rights of the foreign worker is not important, since the state does not have a duty to take in foreign workers… The foreigner can decide if he wishes to accept the status that Israel offers and to work accordingly, or he can choose a competing status offered by another country or stay in his own country. [According to this argument], the willingness of a foreigner to enter a country with the status offered in itself indicates his consent to the conditions accompanying it that are presented before him. When this consent is given, it constitutes the moral basis for the whole set of rights that the state offers… If the number of foreigners who are interested in adopting this status, with its accompanying conditions, fills the quota, it means that these conditions are fair. The mere consent of the foreigners to accept them is the stamp of approval for their fairness’ (Guy Mundlak, ‘Workers or Foreigners in Israel? “The Basic Contract” and the Democratic Deficit,’ 27 Tel-Aviv University Law Review (Iyyunei Mishpat) 423 (2003), at page 428).

11. According to the respondents, the violation of rights inherent in the restrictive arrangement of the Yilmazlar workers is not a violation, since it can be remedied at any time by means of a simple act — the return of the worker to his country of origin. If he does not choose to do this, on the basis of a profit and loss reckoning that finally leads him to the conclusion that working in Israel is worthwhile, what right does he have to complain about a work system that he chooses to join? A similar approach is also implied in the position of my colleague, the Vice-President, when he says: ‘… an employee of the Yilmazlar company who is not satisfied with his conditions of employment may terminate his work relationship with the company [and] return to his country of origin…’ (paragraph 13 of his opinion, supra). Moreover, according to my colleague’s approach, the employee has the right to apply once again, when he returns to Turkey, for a work permit in Israel, as if there were no ‘closed skies’ policyand as if the number of positions were not limited, and as if the workers could be confident or certain that they would not be prejudiced because they left in the first place.

In my opinion, this position cannot be tolerated, mainly for reasons of principle. It is inconsistent with the basic principles of our legal system. I am referring primarily to a fundamental principle in the law, which is a principle of public policy. It was my colleague, the Vice-President, who regarded this principle as ‘one of the legal tools that were designed to protect the fundamental core values of the legal system and to steer the operation of the rules of law in a direction that is consistent with those basic values’ (CA 11152/04 Pardo v. Migdal Ltd [6]). Indeed, the whole of public policy is based on the recognition of the superiority of social values, which are even capable of prevailing over a contractual consent that was made freely and willingly. It allows the court to invalidate a contract whose content is immoral (section 30 of the Contracts (General Part) Law, 5733-1973); it denies the right of a person to form a company whose purpose is not a proper purpose (section 2 of the Companies Law, 5759-1999); a mediator may terminate a mediation proceeding where he is of the opinion that the settlement reached by the parties is an improper one (regulation 4A of the Courts (Mediation) Regulations, 5753-1993), and so on.

12. Thus we see that the outlook that regards consent as the whole of the matter is an idea that is foreign to our legal system. A clear example of this was provided in the past by the rulings that addressed the serious issue of trafficking in human beings, which despite the clear differences has more than one point of similarity with the issue that we are currently considering. In several cases that came before it, this Court emphasized the limited value of the argument of consent in that context. In CrimA 11196/02 Frudenthal v. State of Israel [7], at p. 46, Justice D. Beinisch emphasized that the consent of the victim of the trafficking to what is done to him is of no relevance. In CrimA 7757/04 Borstein v. State of Israel [8], at p. 233, Vice-President Cheshin also held that ‘there is no significance to the issue of the consent or lack of consent of a person to work in prostitution; consent does not reduce the severity of the offence nor can it serve as a defence for the trafficker.’ Within the narrow limits of the case before us, we are not dealing with criminal liability. But the criminal prohibition is one of several tools for expressing our unwillingness to tolerate moral wrongs, which harm the ethical basis on which our society is founded. Where someone wishes to put forward the argument of consent in order to indicate prima facie acquiescence in a situation that is regarded as ethically wrong, we have the power — or perhaps I should say that we are required by the law — not to satisfy ourselves with that argument but to investigate further the moral basis underlying the matter, and where necessary to set matters right.

This is the position in the law in general, and it is also the position in labour law, which for some time has not regarded a contract as the final word with regard to the relationship between a worker and his employer. An approach that consent is sufficient to make a contract for providing a service valid, whatever its contents, is inconsistent with our understanding of the labour laws and their purpose — to encompass, within the well-established limits of decency and morality, interactions between an employer and an employee. It is also clearly contrary to the rationale underlying protective legislation, and regrettably we so often find ourselves acquiescing in the blatant breach of such legislation (see Gill and Dahan, supra, at p. 363). A ‘foreign worker,’ before he is a foreigner, is a worker. The spirit of labour law, which extends its protection to him, does not allow us to regard his relationship with his employer, as well as with the state, merely from the narrow viewpoint of informed consent.

Basic values of law, as well as basic principles of morality, cannot be excluded from the normative framework that applies to migrant workers. Mundlak answers the questions that we cited above so correctly that it is fitting that I should cite his remarks:

‘Even if we accept the premise that the arrival of the foreigner to work in Israel is based on consent, there are limits to the extent of the consent that can be attributed to the contract that was agreed by the foreigner when he came to work in Israel. First, there are universal rights that do not depend upon prior association with the national community; contracting out of these in an agreement with a foreign worker has no effect… The mere presence of foreign workers in Israel cannot provide the answer to the question of the extent of the rights to which they are entitled. In essence, the argument of consent grants a legitimacy that does not depend on content but merely on procedure (a kind of offer and acceptance). But offer and acceptance are not the proper procedure… There is a basis for making the prima facie consent in the basic contract subordinate to norms of public policy, including the protection of human rights and democratic norms’ (Mundlak, supra, at pages 430, 432, 480).

Although we have spoken above of ‘market value,’ we should always remember that this is a starting point, but not the end of the matter, and to this important element we ought to add other factors that are also capable of protecting workers — whether foreign or local — when their market value is limited.

13. The position adopted by my colleague also does not sufficiently take into account factors that are inherent to migrant workers. The first and foremost of these is the question of motivation. The foreign worker is almost always looking for employment opportunities outside his country of origin because of a desire to improve his economic condition. Sometimes poverty, which is clearly recognizable to western eyes, and a difficulty to support his family are what compel him to look for work abroad. The same economic distress is also what leads temporary workers to return time after time to countries in which they were exploited in the past, in the hope — usually a false one — that this time they will receive better treatment. Indeed —

‘Propelled by desperate economic circumstances in their home countries, and perhaps misplaced naive optimism, they return a second or third time with hopes of better conditions, only to experience salary reductions again’ (Human Rights Watch, Bad Dreams: Exploitation and Abuse of Migrant Workers in Saudi Arabia (2004), ch. 2).

In other cases, and it is possible that this is also the case before us, the background from which the migrant worker comes is better. But we should not treat lightly the economic constraints which the migrant worker faced and which led him to seek an alternative source of livelihood. Not infrequently the opportunity of employment in the host country is the alternative to a high level of unemployment in the country of origin, which reduces a person’s chances of finding work in his homeland. The wages paid in the host country, which are often considerably higher than those in the country of origin, are also a major factor in encouraging migration for the sake of work. The economic enticement is great, and its effects are considerable. It is not difficult to imagine what motivates a person who earns a relatively low wage in his country of origin, sometimes merely a few dollars a day, to uproot himself from his home and his family and look abroad to the promise of wages that are hundreds of times higher. This promise, whether it is realized or not, is very powerful and has great effect. Frequently, it overrides concerns of difficulties, and even specific knowledge concerning the danger of exploitation and the loss of rights. This too was considered by the American report, which asked:

‘This raises the question: Why do workers choose to come to the United States under these terms? The simple fact is that workers from Mexico, Guatemala and many other countries often have very few economic opportunities… Where jobs exist [in those countries], the pay is extremely low; unskilled laborers can earn 10 times as much, or more, in the United States as they can at home. So even though they risk being cheated, many workers are willing to take that chance. Most perceive the guestworker program as their best chance to provide a better life for their families. These desperate workers are easily deceived’ (Southern Poverty Law Center report, supra, at p. 12).

14. Turkey is a developed country in comparison with many of the countries from which workers come to find employment in Israel. The Turkish economy has undergone considerable changes in recent years, and the economy of that country is experiencing growth and making efforts to increase employment opportunities. Notwithstanding, the report of the World Bank, which was written in 2006, indicates that the increase in jobs available there still lags considerably behind the natural growth of the population. Whereas the number of residents of working age has increased considerably — between 1980 and 2004 approximately 23 million potential employees entered the market — only six million additional jobs have been created (World Bank, Turkey Labour Market Study, report no. 33254-TR 12 (April 2006)). For this reason, the World Bank states that the employment rate in Turkey is one of the lowest in the world (ibid.). The report goes on to reveal that as a result of economic crises that Turkey underwent in 1994 and 2001, there was a significant reduction in the amount of the average wage paid in Turkey, and only recently has there been some degree of improvement in this index (ibid., at p. 21). To illustrate this, in 2004 — the year in which the arrangement that is the subject of the petition before us began to be implemented — the average monthly salary of a worker in Turkey was the equivalent of approximately 3,600 NIS. In Israel the amount of the average wage at that time was double — approximately 7,000 sheqels.( http://www.databasece.com/international.htm)

Moreover, precisely because of extensive protective legislation that is included in the Turkish code of laws and that makes the dismissal of a worker there very expensive for his employer, not only is the incentive for Turkish employers to take upon themselves the risk of creating new jobs small, but there is a flourishing market of informal workers who do not benefit at all from the protection of the labour laws (World Bank report, supra, at pp. iii, 21). The vast majority of formal workers do not benefit from proper protection because they are not parties to collective arrangements that are the result of collective bargaining (ibid., at p. 26). Turkey has, of course, a long tradition as an ‘exporter’ of migrants to foreign countries, and the migration consciousness in Turkey, including for the purposes of work, is well developed. According to official figures of the Turkish Ministry of Labour, in June 2005 more than three and a half million persons with Turkish nationality lived in countries around the world (approximately five per cent of the country’s population at that time), and of these almost a million and a half persons worked in the foreign workers market.

15. From reading all this it becomes very clear what motivates the persons who are employed as workers by Yilmazlar to look for a livelihood outside their country of origin, notwithstanding the difficulties that may accompany their work in Israel, including the absence of any possibility of choosing their employer here. Even more important is the understanding that it is not their informed choice — their preferred choice between several good options — that is the basis for their agreeing to the restrictive aspect of the agreement. Difficulty and distress are the essence of the matter. Their fear of a harsh economic fate, their natural desire to improve the living conditions of their families, their ambition to take advantage of an opportunity that the global village of the beginning of the twenty-first century has opened up to them — these are the motives of these workers to agree to a well-institutionalized denial of their rights. Can anyone fault them for this?

The argument concerning enforcement

16. It may be argued, and this reasoning is also used by my colleague the Vice-President in his opinion, that the concern with regard to the evil consequences of restricting the workers is allayed by the protection given to them in labour law, and especially the declared policy of the Israeli and Turkish governments that the employment of the workers shall be subject to ‘institutional supervision and strict review,’ in the words of my colleague. First I will say that I question how strict the supervision measures adopted can really be, and of this I will say more below. But before this I will emphasize that experience in most countries around the world, as well as in Israel, proves that in the main the enforcement authorities cannot provide a solution to the concern that we have described.

Not infrequently there is an inherent conflict of interests, even if it is an unspoken one, between the system of laws that is the basis for the policy whose main purpose is to provide a cheap and effective work force for various industries in the economy and the part of the legal system that concerns workers’ rights.

‘If supplying this labor force is a primary goal of immigration policy, then legal protections for guest workers cannot be guaranteed, since they contradict its essential purpose’ (David Bacon, Be Our Guests, The Nation (September 27th, 2004)).

Second, the protection of the rights of foreigners, who are found on the margin of society, is usually a low-level priority for governments, and only limited resources are devoted to it. As a direct result, in many countries that host foreign workers the enforcement system has difficulty in preventing a violation of their rights. It should be emphasized that I am not referring to rights of a vague or external nature that rely on the overburdened foundations of universal morality or general principles, which may well not be given any expression in the law of the host country. Even those principles that are expressly enshrined in the laws of the state and whose solid foundations are unchallenged, both in their application to local employees and also to temporary guests in the work force, are not sufficiently enforced. Often, even if on paper these rules are quite well-developed, when put to the test they are an empty shell and have no real effect (Sitbon, supra, at page 278). This is the case throughout the world, including in the United States (Southern Poverty Law Center report, supra, at pages 1, 7), in East Asia (Rosewarne, supra, at page 22), in Africa (Nasseem Ackbarally, Foreign workers in Mauritius face torrid time, Mail & Guardian Online (28 November 2006)), and in the countries of the United Arab Emirates (Human Rights Watch report regarding UAE, supra, at pages 9, 13, 48).

Even the countries of origin of migrant workers do not always have the same interests as their citizens abroad. Even if in some cases an effort is made to further the rights of the workers, usually in agreements with host countries, this effort is often confronted by, and sometime in direct conflict with, the interest of the country of origin to develop its economy by means of income from a foreign source and the import of knowledge and work methods. When this interest prevails, the first to be harmed are the workers (S. Rosewarne, Globalisation and the Valorisation of Migrant Labour: Recasting the Migration-Development Nexus (Paper presented to the Regional Conference on Institutions, Globalisation and their Impacts on Labour Markets in Pacific Island Countries, October, 2006), at page 4).

17. The case of the Yilmazlar workers, which according to the state’s argument before us — an argument that my colleague the Vice-President sees fit to accept — also benefits from the protection of representatives of the Turkish authorities, is very similar to the case of temporary workers in Canada, who are employed in the agricultural industries and are bound to a single employer during all the months when they are in that country (Sharma (2001), supra, at page 423). The unique aspect of work migration to Canada is that almost all of it is based on bilateral agreements, in which the federal government is one party and the authorities of the country of origin the other. These agreements contain mechanisms that allow the two countries to supervise the enforcement of proper conditions of employment. If a foreign worker has any complaint with regard to any aspect of his work, he may bring it before the representatives of his country, and they, in turn, are supposed to raise the matter with the Canadian authorities. In practice, those representatives of the countries of origin are faced with a conflict: on the one hand, they owe a duty of faith to the worker, but on the other hand, they have a similar duty to the interests of their country, including to its good diplomatic relations with Canada. It is not surprising to discover that in this competition of interests, the workers find themselves at a disadvantage. They are employed in very harsh conditions and with small salaries, and there is no real address for their complaints. Because they fear being deported, they are compelled to suffer conditions that would be unacceptable to local workers (Nandita Sharma, Mexican Standoff – Canadian ‘Guest Workers,’ The Globe and Mail (March 29th, 2006)). The Supreme Court of Canada discussed this in a judgment in 2001, in which it set aside a provision of legislation that forbade foreign workers to form unions (Dunmore v. Ontario (Attorney General) [19], at paragraphs 41, 102). This harmful reality is also described in an article that was published last year and reviewed the Canadian experience, which is so bad that some have called it ‘Canada’s shameful little secret.’ The article states:

‘…the consular liaison officers [of the sending nation] appointed to look out for the workers suffer from a conflict of interest: maintaining good relations with Canada and the smooth operation of the scheme versus taking up the fight on behalf of individual workers.

As one former contract worker from Mexico puts it, a complaint to a consular official “enters in one ear and goes out the other.” It is simpler for consular officials to replace workers who raise concerns in the workplace than to address the root cause of their complaints’ (Peter Mares, Workers for all seasons, The Diplomat (July-August, 2006). See also World Bank, Pacific Islands At Home & Away — Expanding Job Opportunities for Pacific Islanders Through Labor Mobility, Report No. 37715-EAP 117 (September, 2006)).

Moreover, contacting the enforcement authorities, which is often the most effective way in which workers who have been harmed can bring their case to the attention of the authorities, is not practicable in view of the concern, which is a common occurrence in the experience of migrant workers, that it will lead to the loss of their livelihood. Another report of Human Rights Watch, which deals with the American labour market, found that migrant workers in that country are generally reluctant to sue for legal remedies to which they are entitled under the law, in case it leads to their being blacklisted for work. In the words of the report:

‘… found widespread fear and evidence of blacklisting against workers who speak up about conditions, who seek assistance from Legal Services attorneys, or who become active in [labor organizations]’ (Human Rights Watch, Unfair Advantage: Workers’ Freedom of Association in the United States under International Human Rights Standards (2002), at pages 42, 202, 206).

18. To all of this we should add the recognition that despite the well-developed labour law in the country of origin of Yilmazlar’s workers, the legal protection actually afforded to workers in Turkey leaves much to be desired. This was discovered by the World Bank, which said: ‘Compliance with labor law is weak in Turkey. Many workers are not receiving the protection that is the intent of the laws’ (World Bank report, supra, at page xi). In view of the aforesaid, one can only look sceptically upon the promise that the authorities will carry out enforcement measures, both in Israel and in Turkey. In the absence of any real course of action in the legal sphere, there is additional support for the conclusion that a worker who refuses to acquiesce in his being bound to one employer faces a real difficulty in protecting his rights.

To complete the picture I will add that this difficulty is aggravated by an additional element that is integral to work migration, and this is the limited ability of foreign workers to form unions and to achieve collective protection. In many places the local workers’ organizations are not prepared to admit foreigners into their ranks, and there are places where the law prevents this and even forbids the creation of alternative frameworks. It is also natural that temporary workers, who come from different countries, speak different languages and sometimes have conflicting interests (for example, because of the competition over a limited number of positions or a desire to improve their work conditions at the expense of other workers), have difficulty in forming unions. To all of this we should add the well-known difficulty, which is inherent in work migration, of being removed from a familiar environment, the normative system to which the workers are accustomed and the family unit, which is capable of weakening them and preventing them from becoming organized in an effective manner.

Theoretical harm and actual harm

19. What is the concrete expression of all this in the case of the Yilmazlar workers? The parties disagree on this question. On the one hand, workers of the company have testified, in affidavits that were attached to the petition before us, with regard to difficult conditions in which they were employed, harsh treatment that they received, being required to sign contracts whose content — which is sometime draconic — was unclear to them, prolonged delays in receiving wages, the confiscation of passports, the payment of wages that are lower than the minimum wage in force in Israel, non-compliance with the provisions of the Hours of Work and Rest Law, 5711-1951, and an absolute dependence on their employer, which prevents any possibility of improving the situation. On the other hand, Yilmazlar remains insistent that everything stated in those affidavits is false and unfounded. As proof, the company presented affidavits from other workers, in far greater numbers, that testify to fair employment conditions and the payment of wages on time. Unfortunately, these affidavits are all drafted in identical language, as if they were all dictated word for word. All that I can hope is that it is merely a false concern that someone wished to have workers sign a declaration that does not reflect their true position. In any case, these affidavits do not address at all the amount of the wages paid to the workers, the content of the work contract, the claim that workers were compelled to sign blank promissory notes, the question of the workers’ dependence on the company including the claim that passports were confiscated, the proper housing conditions that are provided and the question of vacations and rest days.

In practice, checks that were conducted by the Ministry of Employment on the work sites where Yilmazlar operates, on 8 November 2005 and 23 November 2005, found nothing detrimental to the company. This was also the case when a visit was made by representatives of the Undersecretariat for Defence Industries (SSM) at the Turkish Ministry of Defence. On the other hand, in a legal proceeding that took place not long ago against Yilmazlar in the Ramla Magistrates Court, a case was considered in which dozens of its workers were housed with considerable overcrowding in a residential house in a village in the centre of the country. At the request of the village, the Magistrates Court ordered the company to remedy the matter immediately (CC 2992/05 (Ram) Yagel v. Nomdar [18]). In its decision to deny an application for leave to appeal filed by Yilmazlar, the Tel-Aviv District Court (the honourable Judge S. Dotan) held that: ‘If we are dealing with the rights of the workers, there is no greater violation of their rights than housing them with inhuman overcrowding as described above’ (LCA (TA) 2782/05 Yilmazlar International v. Yagel [17]). The same conclusion was reached by this Court, which approved the decision and added (per the honourable Justice E. Arbel): ‘I agree with the remarks of the District Court with regard to the serious conditions in which the workers were placed — a hundred people in one overcrowded house’ (LCA 267/06 Yilmazlar International v. Yagel [9]).

20. Even though the facts are not entirely clear, it is sufficient that there is a real concern, which arises in this case, that the rights of the Yilmazlar workers are likely to be violated in various respects. In any case, this Court is not the appropriate framework for clarifying questions of fact (HCJ 4999/03 Movement for Quality Government in Israel v. Prime Minister [10], in the second paragraph of the opinion of President A. Barak). The focus of the matter, therefore, is upon the normative situation created by the Government Decision. This has created an opportunity, which is very considerable, for the abuse of Yilmazlar’s workers, as well as other foreign workers in the future. Experience teaches us that where there is an opportunity, there will always be someone who tries to avail himself of it. I cannot acquiesce in this.

The argument concerning the imminent expiry of the arrangement

21. I should further emphasize that the respondents should not rely on the assumption that in any case the entire arrangement is soon to expire, at the end of 2007. First, I should say that I would not be surprised if someone decides to extend it. Second, even though the decision of the Ministerial Committee for Foreign Workers no. FW/3 of 7 June 2005 states that ‘only the government has the power to approve, in very exceptional cases, an additional arrangement for the bringing or the employment of foreign workers as a part of reciprocal purchase transactions,’ I think that I will not be mistaken in my assessment that giving legal sanction to the Government Decision in this case will result in similar decisions in the future. Indeed, the normative impropriety of the decision is the heart of the matter, and this should not be countenanced, no matter how long it is valid.

22. My colleague the Vice-President bases his position mainly on the fact that the case of the Yilmazlar workers does not involve debt bondage. This is almost the entire basis for the distinction that he wishes to make between the case before us and the ruling made in the aforementioned Kav LaOved Worker’s Hotline v. Government of Israel [1].

Indeed, the question of debt bondage is of critical importance in the context of migrant workers, and a major factor in the cruel fate — no less — that ensnares them in host countries. In brief, the meaning of this concept is that a worker who wishes to obtain a visa to work in a foreign country is often required to pay huge sums to various agencies and middlemen, who are responsible for obtaining it. To illustrate the point, the average agency fee that a foreign worker is required to pay, when he earns in Israel an average wage of 500-1,000 US dollars a month, is 10,000 dollars and even more (Binding Migrant Workers to Corporations, supra, at page 23; Freedom Inc. — Binding Migrant Workers to Manpower Corporations in Israel, supra, at pages 12, 26). Most of the workers borrow money for this purpose in their countries of origin, and they thereby become debtors who pay high rates of interest. Often they are given a promise that they can work in Israel for several years, even though their residency permit in Israel is valid only for one year and there is no certainty that it will be renewed. Even a very small delay in receiving the wages — for example because of not turning up to work because of illness or another reason, may result in a situation in which this debt increases significantly to a point where it can no longer be repaid. This harsh reality, which threatens to bring serious economic disaster upon them, is the lot of foreign workers throughout the world. It is possible that it is the main problem in work migration in modern times. There are three petitions addressing this issue that are pending in this Court (HCJ 2405/06, HCJ 1193/07, HCJ 2768/07).

It also cannot be denied that when the two evils — debt bondage and being restricted to one employer — befall a worker simultaneously, the extent of the harm to him is greatly increased. In the absence of any bargaining power, not only does the worker have difficulty in earning the true value of his work (which is usually greater than what he is paid) and repaying his debt, but he will think twice before he dares to complain about his conditions of employment, because of the fear that he will be dismissed, which means — in the absence of an alternative possibility of employment — that he will be unable to repay the debt. Indeed, a worker who is not burdened with a debt, but is bound to one employer, is in a better position that his fellow worker who both has a debt and is also bound to one employer.

23. But all of this is not capable of combining the two — the debt and the restrictive arrangement — into one entity that cannot be separated. It should be emphasized that we are dealing here with two different factors that are independent of one another, even though each one of them may be affected by the other in its deleterious effects. A restrictive arrangement without a debt is still a restrictive arrangement, and the harm that it causes, as I have described above, is great.

It is therefore clear that there is no basis to the state’s claim that the special position of the Yilmazlar workers, who do not leave behind them any debt to be repaid when they come to Israel, lies in the fact that the restrictive arrangement does not cause them any real harm. This harm, the essence of which is the worker’s loss of his bargaining power, does not depend — it should be emphasized once again — on the existence of a debt and does not derive from it. It is independent. Can it seriously be argued that the removal of the element of debt is sufficient to make employers willing to pay their workers wages that will reflect the true value of their work, adhere strictly to the hours of employment, stop taking passports or provide fitting housing conditions? Is the absence of a debt capable of repairing the moral flaw inherent in the restrictive arrangement mechanism? I think that the answer to these questions is self-evident.

24. Another aspect of the argument, if I have understood it fully, is that in the absence of a debt there is nothing to prevent an employee, who is not satisfied with the conditions offered to him, from leaving Israel. Once again the same error has arisen, since, as I clarified above, often the option of leaving Israel and giving up the job is a bad one, both because of the alternative in the country of origin and because of the reliance that has already taken place. If there are workers — and there are very many of these — who are prepared to work under a regime of both a debt and a restrictive arrangement, with its double evils, then a fortiori there will certainly be those who will be prepared to work subject to the restrictive arrangement only, while suffering the harm that it causes them. I have already discussed the weakness of the argument of consent, and I need not elaborate further.

My colleague, the Vice-President, bases his position on remarks that were written in Kav LaOved Worker’s Hotline v. Government of Israel [1]. In this matter too I think I should make matters clear. Debt bondage was mentioned there as one of the factors that made the restrictive arrangement so evil, but it is not the only one, and not necessarily the dominant one. The violation of ‘the foreign worker’s autonomy of will’ — in the words of my colleague in paragraph 10 of his opinion above — does not arise solely from the debt bondage. The following is what I wrote in Kav LaOved Worker’s Hotline v. Government of Israel [1]:

‘The restrictive employment arrangement violates the basic rights of the foreign workers. It violates the inherent right to liberty. It violates human freedom of action. It denies the autonomy of the free will. It tramples the basic right to be released from a work contract. It takes away a basic economic bargaining power from a party to employment relations who is already weak. By doing all this, the restrictive employment arrangement violates his human dignity and liberty in the most basic sense’ (paragraph 29 of my opinion).

These violations, regrettably, are unaffected by the absence of debt bondage.

All of the above shows that the special characteristics of the Turkish transaction cannot undermine the basis of the claim that the restrictive arrangement seriously violates the rights of the workers. I shall now consider how this violation is consistent with the public interest.

The public interest and the purpose of the administrative act

25. The contract with the Turkish Ministry of Defence is important to the respondents. It is important to the State of Israel. Their counsel emphasized the interests that it serves, in both the economic and the political spheres. First and foremost it would appear, and I am prepared to accept this as a fact, that without the offset component, the agreement would not have been made. The Israeli economy, and especially the fifth respondent, Israel Military Industries Ltd, would then have lost substantial income in foreign currency. IMI’s ability to enter into future transactions with the Turkish authorities would have been impaired. It would have to suffer the consequences of a breach of contract. The effects on workers in the security industries would have been considerable, and possibly employment in the economy as a whole would have been affected. It is possible that in the long term this would have even harmed the security of Israel. Moreover, it cannot be denied that the agreement plays a part in Israel’s relationship with Turkey, a main ally without any doubt, and it is difficult to exaggerate the importance of maintaining good relations with it. In so far as the agreement, with its various elements, can benefit the interests of that country, this too is indirectly desirable for Israel, its ally. Indeed, ‘the phenomenon of work migration is an inseparable part of international relations’ and of ‘the mutual interest of governments in developing relations’ (Kemp and Reichman, supra, at page 10).

The realization of this interest by means of implementing the Turkish transaction imposes a duty on Israel, which is not at all a light one. It is obliged to carry out its share in the offset mechanism, and for this purpose it was required to take upon itself an undertaking with a significant financial value. A particularly creative mind gave rise to the idea that it would be possible to make use of human beings in order to cover a part of this liability. As the state explained in its response to the petition (in paragraph 9 of the preliminary response), of the two hundred million dollars that Israel is required to ‘return’ to Turkey, approximately 28 million dollars are supposed to be derived from the employment of the Turkish workers (which is only approximately fourteen per cent of the total amount). The restriction of the workers to their employer makes it much easier to reach this target. It ensures that the majority of the wages will be transferred in an orderly manner to Turkey. It is particularly important in view of the fact that the Turkish Ministry of Defence has taken upon itself the task of supervising the implementation of the agreement and it refuses to hold discussions with several different employers but is prepared, and it has its reasons, to work only with Yilmazlar.

26. When enquiring into the dominant purpose of an administrative act such as the one undertaken by the government of Israel in the case of the Yilmazlar workers, we should of course consider those aspects that indicate, in so far as possible, the essence of the act and properly reflect the reality and the context in which it arose (see and cf. HCJ 1030/99 MK Oron v. Knesset Speaker [11], at page 665; CA 10078/03 Shatil v. State of Israel [12], at paragraph 26 of my opinion)). In view of the aforesaid, it is possible to determine without any difficulty that a main purpose of the Government Decision is to create an effective mechanism of discharging a part of the offset debt, by means of ensuring that Yilmazlar has foreign manpower available at all times.

But this is not the only purpose of the restrictive arrangement mechanism. It serves another purpose. The concern of the authorities that the floodgates will be opened, after they have been erected with considerable effort in recent years and prevented Israel from being inundated by legal and illegal migrant workers, is what led them to act so that the number of Yilmazlar’s workers would be limited and watched carefully at all times, and that no use would be made of the narrow route that was provided for individual cases in order to bring hundreds and thousands of others into the Israeli economy.

These, then, are the two dominant purposes of the decision that is the subject of this petition. They seek to realize important interests, and to this end the government of Israel took the liberty of restricting the rights of the Yilmazlar company’s workers. In order to determine whether the government did this lawfully, we are required to consider the matter — just as we did in Kav LaOved Worker’s Hotline v. Government of Israel [1] — from the perspective of the formulae that we have borrowed from the limitations clauses in the Basic Laws.

Judicial scrutiny

27. The first stage in the process of scrutiny seeks to ascertain whether the purposes are proper ones. With regard to the first purpose of which I spoke above, I think that it can be determined with the utmost clarity that it is not a proper purpose. Whoever looks at the facts of the case before us cannot, in my opinion, fail to be outraged at the use that has been made of these workers as an instrument and a means of furthering the interests of the Israeli government and commercial companies. After all, of what concern to the Turkish worker are international relations? What does he care for the success of the security industries in Israel? Of what interest is it to him that tanks are improved for his country’s army? What is the source of the obligation, for which that worker is required to pay with his liberty, his dignity, his ability to earn a livelihood and his hopes for a better future for his family, in order to further these interests? What justification is there that he should be subjected to the binding force of the restrictive arrangement? (cf. HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [13], at para. 6 of my opinion). What justification is there that in addition to the consideration that he is required, in the usual manner, to provide within the framework of a free and fair contract with an employer, he should be required to pay an additional price, from which he does not benefit and with regard to whose nature and character he was never consulted?

28. This purpose is inherently inconsistent with the ethical foundations on which the State of Israel was established. The basic principles of liberal morality have taught us that a human being is always an end and not merely a means to an end. Kant wrote:

‘… der Mensch und überhaupt jedes vernünftige Wesen existiert als Zweck an sich selbst, nicht bloß als Mittel zum beliebigen Gebrauche für diesen oder jenen Willen… dagegen vernünftige Wesen... das nicht bloß als Mittel gebraucht werden darf... mithin sofern alle Willkür einschränkt (und ein Gegenstand der Achtung ist).’

‘… man and generally any rational being exists as an end in himself, not merely as a means to be used arbitrarily by this or that will…; but rational beings… are… something that should not be used merely as a means, and consequently all arbitrariness is thereby eliminated (and he is an object of respect)’ (Immanuel Kant, Groundwork of the Metaphysic of Morals).

To this I would add that, prima facie, even if a person is required to take part in achieving any purpose, it should be one in which he is directly the goal of that purpose. Any other approach is tantamount to treating a human being as an object, and in our case, as the property of the employer. Justice M. Cheshin said: ‘An inanimate object and likewise an animal may be taken by its owner from place to place, transferred from one person to another, and no one will object. But man is different; nothing should be done to him against his will’ (HCJ 8111/96 New Federation of Workers v. Israel Aerospace Industries Ltd [14], at p. 575). And Justice D. Beinisch emphasized: ‘The dark ages in which a person could be regarded as the property of another person have passed’ (CrimA 11196/02 Frudenthal v. State of Israel [7], at p. 47). Particularly appropriate here are remarks written by my colleague Vice-President Rivlin himself in New Federation of Workers v. Israel Aerospace Industries Ltd:

‘… We should not also include within the scope [of the employer’s property rights] the power to hold onto the worker, even if only as a premise. I said as a premise, because no one disputes that the worker always has the power to leave his new employer, just as he had the power to leave his previous employer. But a right to leave an employer that is based on the premise of the liberty of the worker is not the same as a right to leave an employer that is based on the premise of the employer’s prerogative. There can only be one premise, the former one, if we agree that the employer’s property rights will never also include control of the worker’s liberty… The liberty of the worker to choose his employer is derived from the right to liberty, which is enshrined in the Basic Law: Human Dignity and Liberty, and from the value of human dignity, which is the foundation of the aforesaid Basic Law… This liberty of the worker is derived directly from the outlook that the human being is an end and not a means’ (ibid., at page 595).

These remarks were admittedly written with regard to Israeli workers, but I do not know what moral basis there is for distinguishing between them and their foreign counterparts. The principle is simply that the idea that Yilmazlar’s workers can be used as a tool for performing the obligation in a commercial transaction between third parties is immoral and cannot stand. The restrictive arrangement mechanism, which turns the migrant worker into an object, cannot be accepted in a normative environment that seeks to emphasize — in the course of implementing the processes of globalization and openness — the value of the human being, every human being, as a subject rather than an object (Stuart Rosewarne, ‘Globalization and the Recovery of the Migrant as Subject: “Transnationalism from Below”,’ 15(3) Capitalism, Nature, Socialism 37 (2004); Ivan G. Alvarado & Hilda Sánchez, ‘Migration in Latin America and the Caribbean: A view from the ICFTU/ORIT,’ 129 Labour Education 101 (2002), at page 104). Such an environment, which raises the banner of the autonomy of the human will and the dignity of the human being, cannot stand idly by when it sees, in the words of the poet Yehuda Amihai: ‘How people who went out whole are returned in the evening to their homes like pocket change’ (Yehuda Amihai, ‘Out of three or four in a room,’ Poems 1948-1962 (2002), at page 97).

29. I might have ended here, since the impropriety of the dominant purpose of an administrative act is sufficient in order to annul the act itself . But since a similar conclusion — that the act should be set aside — also arises from a consideration of the second purpose of which I spoke, I should also add the following: admittedly, preventing a possibility that the employment market in Israel will be flooded with migrnat workers is likely, as a rule, to be regarded as a proper purpose, and therefore it will pass the first part of the test of judicial scrutiny. But my opinion is that the measures that were adopted to realize this purpose do not satisfy the second part of the test of judicial scrutiny, by which I mean the principle of proportionality.

30. I have difficulty in imagining what motive may induce a migrant worker who enjoys fair conditions of employment that are compatible with his market value to stop working for his employer. If the picture is so rosy, and reflects — in the words of counsel for Yilmazlar — the ‘huge advantage given to the Turkish workers in the offset agreement’ without which ‘they would not be able to come and work in Israel at all’ (pages 708 of the statement of reply), why is there any need for a restrictive arrangement? One is compelled to wonder why this ‘huge advantage’ is not capable of ensuring loyalty to the employer. Is it perhaps because the main advantage is actually enjoyed by the Yilmazlar company, which, because of the power of control given to it by the restrictive arrangement mechanism, must be an object of envy to other employers?

It is precisely the restrictive arrangement that threatens to deprive the worker of fair conditions that is likely — and this is the heart of this case — to provide an incentive for workers to leave their employers, and to result in an increase in the market of unlicensed workers and the breakdown of control over what happens in this sphere. As I said in Kav LaOved Worker’s Hotline v. Government of Israel [1], figures that were compiled by the Ministry of Industry, Trade and Employment indicate that there is such a connection between a restrictive arrangement and illegal work, since the latter is ‘a rational act necessitated by reality’ in the efforts of the migrant worker to improve his conditions (Yoram Ida, Factors Influencing Foreign Workers to Revert to Illegal Employment (Research Department of the Ministry of Industry, Trade and Employment, 2004), at page 57). That research found that the phenomenon of foreign workers in Israel resorting to illegal employment was not usually the result of a worker receiving a better financial offer, nor of the expiry of his residency permit. It was mainly the result of the worker’s desire to extricate himself from the difficulties that he experienced in consequence of unfair employment conditions enforced by the employer (ibid., at pages 64, 74; see also Malsiri Dias & Ramani Jayasundere, ‘Sri Lanka: Good Practices to Prevent Women Migrant Workers From Going Into Exploitative Forms of Labour,’ 9 GENPROM Working Paper 26 (ILO, Geneva, 2000)). From this we can see the lack of a rational connection between the purpose and the means adopted to achieve it, since the restrictive arrangement not only does not reduce the illegal employment market but it is one of the factors creating it. An additional conclusion is that the restrictive arrangement is a more harmful measure than other measures that could be adopted in order to realize the purpose under discussion, especially the measure of ensuring that workers are given their rights.

31. The proportionality test in the ‘narrow’ sense is also not satisfied, since in my opinion, as I explained above, the impropriety in the restrictive arrangement is greater than the benefit that it provides. In this respect I should add the following: it is hard to dispute the contribution of work migration to economic success in the host country and to ensuring the existence of industries in which it would otherwise be difficult to recruit workers, by which I am referring especially to the construction and agriculture industries. This can be shown clearly by Germany after World War II, the markets of the United States and Canada today and what is happening in additional countries (see, for example, Michael J. Piore, ‘Illegal Immigration to the U.S.: Some Observations and Policy Suggestions’, in Illegal Aliens: An Assessment of the Issues 26 (1976). But the foreign work market does not only make a positive contribution. The public interest is not monolithic, and some aspects of it may be harmed — even from a narrow economic viewpoint of the interests of the economy — as a result of acquiescing in a reality where migrant workers are deprived of their rights. Thus, inter alia, there is a concern that unemployment may be increased among local workers and the level of their salaries may be adversely affected by being ‘dragged’ down by a whole sector of migrant workers whose salary is inconsistent with what is required by law. The willingness to ignore the value of having fair employment relations in the economy is a two-edged sword, which will ultimately harm local workers. Cheap labour also removes the incentive to develop new technologies and hi-tech industries, and it leads instead to an excessive focus on manual labour industries that impede the development of the economy. There are other negative aspects as well (see and cf. O. Yadlin, ‘Foreign Work in Israel,’ Menachem Goldberg Book 337 (2001), at page 342). All of these, which are strengthened when the restrictive employment mechanism operates, should not be ignored. We should also consider the possible risk of harm to the international standing of the State of Israel as well as its image in the eyes of the exploited community of workers, who ultimately return to their country of origin and share their impressions with others.

On membership of the community of civilized nations

32. In this last context, I would add another significant aspect that may have remained, unjustifiably, in the background of the discussion of the technical aspects of the restrictive arrangement. I am referring to the responsibility that the State of Israel is obliged to take upon itself as a member of the community of civilized nations and on the basis of its commitment to universal values of justice and morality (CA 105/92 Re’em Contracting Engineers Ltd v. Upper Nazareth Municipality [15], at p. 206). In my opinion, these do not allow the continued implementation of the restrictive arrangement. Even if the migrant worker does not have an inherent right to work in Israel, the state has a duty not to harm him once he comes within its borders, especially after the state has itself invited him to do so. The spirit of the twenty-first century, a spirit of openness and transnational cooperation, cannot allow this. A strange and questionable combination of globalization on the one hand, and adherence to old laws of serfdom and bondage on the other, is unacceptable. Indeed, in the first part of my remarks I gave many disturbing examples of the harm that restrictive employment arrangements inflict on foreign workers all around the globe, including in progressive and enlightened western democracies. I do not think that the conclusion that follows from this is that we should regard restrictive arrangements as a necessary evil or — worse still — as a desirable and acceptable phenomenon. We can learn from the bad experience of others, and we should not hasten to adopt into our legal system anything other than what should be adopted. In the words of Justice A. Witkon: ‘It is possible that in one question or another the [Israeli] public will have an outlook of its own that is different from the outlook of other peoples, and it need not be said that in such a case we will be guided solely by the outlook of our public’ (CA 337/62 Riezenfeld v. Jacobson [16], at page 1026 {113}). The rights of the weak are naturally not the subject of great popularity and enthusiasm, but they are rooted in a solid and well-founded ethical outlook. This is the direction in which our social conscience leads us, and we can only hope that its light will also shine on others.

With regard to work migration in Europe in the 1970s, the Swiss novelist and playwright coined a phrase that many quote. ‘Wir riefen Arbeitskräfte, und es kamen Menschen’ (‘We called for workers, and human beings came’). Indeed, the Yilmazlar workers, before they are workers, are human beings. We should recognize this. This should be reflected in our legal arrangements. This is how we should treat the migrant worker who enters into our gates.

Justice E. Hayut

My colleague Justice E. Levy has once again set out in his comprehensive opinion the basic principles that this Court addressed not long ago in HCJ 4542/02 Kav LaOved Worker’s Hotline v. Government of Israel [1]. By virtue of these principles, the decision in Kav LaOved Worker’s Hotline v. Government of Israel [1] set aside a procedure that was practised in the agriculture, nursing and manufacturing industries, according to which the residency and work licence of foreign workers was conditional upon being bound to a specific employer. With regard to this procedure, my colleague Justice E. Levy said in that case (in para. 29 of his opinion):

‘The restrictive employment arrangement violates the basic rights of the foreign workers. It violates the inherent right to liberty. It violates human freedom of action. It denies the autonomy of the free will. It tramples the basic right to be released from a work contract. It takes away a basic economic bargaining power from a party to employment relations who is already weak. By doing all this, the restrictive employment arrangement violates the individual’s human dignity and liberty in the most basic sense.’

These pertinent remarks were adopted by President A. Barak and by Vice-President Emeritus M. Cheshin who added some remarks of his own in that case, and as a result the arrangements that bound foreign workers to their employers were set aside. It seems that there is not, nor can there be any dispute between my colleagues with regard to the basic principles underlying the ruling made in Kav LaOved Worker’s Hotline v. Government of Israel [1], but my colleagues are in disagreement with regard to the implementation of this ruling in the special circumstances of the case before us. In this dispute, I agree with the opinion of my colleague Vice-President E. Rivlin, and like him I too am of the opinion that the offset arrangement is an exceptional arrangement with special characteristics that justifies the exclusion of the Government Decision under consideration in this petition from the rule that invalidates restrictive arrangements. Notwithstanding, I would like to emphasize that in my opinion it is possible to allow this arrangement as an exception inter alia because it is limited in time. But if the concern that my colleague Justice E. Levy raises is realized, and the denial of the current petition ‘will result in similar decisions in the future,’ then it will be necessary to re-examine the legality of those decisions and it is not improbable that a different conclusion will be required in those cases. I would also like to emphasize that in view of the restriction imposed on the Yilmazlar workers when they are in Israel that prevents them from changing over to another employer, there is in my opinion an extra and special duty to protect the rights of these workers, and it is to be expected that the respondents will take care to do this and will continue to carry out regular and strict supervision of their conditions of employment.

Petition denied, by majority opinion (Vice-President Rivlin and Justice Hayut), Justice Levy dissenting.

7 Tishrei 5768.

19 September 2007.

Full opinion:

Hotline for Migrant Workers v. Government of Israel.pdf

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/04/430/108/P26/04108430.p26.pdf

Goren v. Home Center (Do It Yourself) Ltd.

Case/docket number:

HCJ 1758/11

Date Decided:

Thursday, May 17, 2012

Decision Type:

Original

Topics:

Employment

Equality Before the Law

Goren v. Home Center (Do It Yourself) Ltd..pdf

Discrimination

Abstract:

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Can a showing of a wage gap between a female employee and a male employee for equal work or work of equal value at the same workplace can “automatically” substantiate a cause of action under the Equal Pay for Female and Male Employees Act 1996 (hereinafter: the Equal Pay Act) as well as under the Equal Opportunities in Employment Act 1988 (hereinafter: the Equal Opportunities Act)? The implication of this questions for our matter is in regard to the option granted by the Equal Opportunities Act to award compensation without actual showing of damages, that does not exist in the Equal Pay Act.

Background: The First Petitioner (hereinafter: the Petitioner) won a suit she had filed with the Regional Labor Court against the First Respondents (“Home Center”, and hereinafter: the Respondent) under the Equal Pay Act after it was found that the compensation she received for her employment with the Respondents was 35 per cent lower than the compensation for a man who worked for the Respondent at the same job (hereinafter: Mor) and once the Respondent failed to show any justification for this gap. It was noted, among others, that the fact that the Petitioner’s pay was set following a negotiation between her and the branch manager, where she asked for pay (NIS 3,500 per month) that was lower than pay for which Mor asked (NIS 5,000 per month) cannot justify the significant pay gap between the two. The Regional Labor Court went on to hold that once it was found that the Respondent violated the provisions of the Equal Pay Act, then the Petitioner’s suit was to be granted under the Equal Opportunities Act as well. In this context, the court noted that since it was demonstrated that the Petitioner’s pay was established according to her own demands rather than by the initiative of the Respondent, she must not be awarded the maximum rate of compensation as stipulated by the Equal Opportunities Act. Therefore the Regional Court set the amount of compensation for the Petitioner at NIS 6,944 – which is identical to the sum awarded her under the Equal Pay Act. An appeal and a counter appeal that were submitted to the National Labor Court examined the issue of whether proving a claim under the Equal Pay Act automatically establishes a cause of action under the Equal Opportunities Act as well. The majority opinion of the National Labor Court decided the above issue in the negative while examining the circumstances under which the burden of proof shall shift to the employer under section 9 of the Equal Opportunities Act. In this context the majority decided that in order for the burden to be shifted to the employer’s shoulders, the employee must first present evidence demonstrating discrimination or unequal treatment by the employer. The majority judges further held that the employee must present to the Court evidence and documents that demonstrate to the necessary standard that that this is a discriminating employer. The mere proof of the claim under the Equal Pay Act does not, in the perspective of the majority judges, meet such necessary standard. Hence this Petition.

The High Court of Justice (in a decision written by President (Ret.) D. Beinisch and joined by Justices I. Amit and N. Hendel) granted the Petition for the following reasons:

The Equal Pay Act was designed to address one of the most common expressions of discrimination between men and women in the workforce, and thus establishes a burden of proof that favors to great extent the female employee when proving her claim – in a suit under the Equal Pay Act it is sufficient to point to gaps in pay between a man and a woman who perform the same work (or a generally equal job or a job of equal value), that the employer fails to show a relevant justification under the consideration detailed in section 6(a) of the Equal Pay Act in order to prevail in the claim (an outcome based test). But on the other hand, the Act limits the extent of compensation that may be awarded to a female employee who suffered discrimination.

The considerations detailed in section 6(a) of the Equal Pay Act do not constitute an exhaustive list. However, demonstrating other considerations that are not listed in section 6(a) of the Equal Pay Act requires that these considerations, too, are of the same type listed in the section and point to the fact that the gaps in pay are a necessary result of the “nature of character of the relevant work.” In this context, the High Court of Justice (as opposed to the position expressed in the dissenting opinion of Judge Virt-Livne) ruled that the employer’s freedom of contract must not be recognized as a single consideration which my justify wage discrimination between men and women.

The Equal Opportunities Act was designed to address different types of discrimination toward various groups and requires demonstrating a causal connection between the prohibited consideration taken into account by the employer and the decision the employer made in regard to the employee. Still, the Act permits awarding compensation to the employee without requiring a showing of harm, as well as establishes a criminal sanction against the discriminating employer.

On its face, it seems that in light of the difference in the manner in which the causes of action in the Equal Pay Act and the Equal Opportunities Act are defined, it is insufficient to only prove the claim under the Equal Pay Act in order to necessarily and “automatically” substantiate a claim under the Equal Opportunities Act. Each of these Acts was designed to target different types of discrimination in the workforce, establishes different tests to proving the discrimination, and mandates different sanctions to be placed upon the discriminating employer. Under these circumstances creating a complete overlap between the causes of action established in the two acts is inconsistent with the purposes that each act was designed to achieve and the problems with which each of the acts is meant to deal.

On the other hand, the Equal Opportunities Act acknowledges the difficulty faced by an employee required to prove the motives of the employer, and it stipulates in section 9(a) that should the employee prove that he or she meets the requirements of possesses the skills that the employer set for the purpose of the issue subject to the discrimination claim, the burden would shift to the employer in order that the employer could undermine the discrimination claim and prove that the decision regarding the employer was not based on a prohibited consideration. It is therefore asked what the minimal evidentiary burden necessary is in order to shift the burden of proof under the Equal Opportunities Act toward the shoulders of the employer, and whether proving the claim under the Equal Pay Act meets such evidentiary burden.

In the HCJ’s view, the burden placed upon the employee is a relativity light burden. It is sufficient that the employee who claims discrimination due to belonging to one of the identity groups detailed in section 2 of the Act show that he meets the requirements and possesses the skills set by the employer for a particular purpose, or that he was able to demonstrate prima facia evidence that the employer discriminated against him in order to shift the burden onto the employer. It is possible that under particular circumstances a significant gap in pay between a female employee and a male employee would be sufficient to shift the burden of proof in a claim under the Equal Opportunities Act onto the employer’s shoulders. The issue of passing the test of whether there are prima facia evidence for discrimination will be settled according the circumstances of the case, and strict standards should not be set in this context. Therefore, there is not place for the requirement raised in by the majority of the National Labor Court that the female employee be required to present evidence and documents to sufficiently show that this is a discriminating employer.

Where the employee has successfully met this evidentiary burden, the burden shifts onto the employer to prove that the discrimination is a necessary result of the nature and characteristic of the job, as mandated by section 2(c) of the Equal Opportunities Act, or that it is based on some good reason that is not rooted in one of the prohibited considerations detailed in section 2(a) of the Equal Opportunities Act. In this context it is important to make clear that the Equal Opportunities Act explicitly lists the considerations that an employer is prohibited from considering when making decisions related to an employment relationship. Where the employer succeeds in showing that a seemingly discriminatory outcome is not based on one of the prohibited considerations but on another consideration or other considerations, the employer has met the burden to show that the employee was not discriminated against “because” of the prohibited considerations.

As for the case of the Petitioner in the matter before us, proving a claim under the Equal Opportunities Act meets the evidentiary burden necessary to shift the burden of proof in a claim under the Equal Opportunities Act onto the shoulders of the employer. Once a female employee has shown that a male employee at the same job (or a generally equal job or a job of equal value) for the same employer and in the same workplace receives a higher pay then her, and once the employer was unable to demonstrate a relevant justification for this gap which is a necessary outcome of the nature of the job or of its characteristic (according to section 6 of the Equal Pay Act), then seemingly the assumption that the root of the gap is the sex of the female employee is a necessary conclusion.

Under these circumstances the burden is shifted onto the employer to demonstrate there is no causal connection between the pay gap and the sex of the female employee, and thus the gap is not “because” of the employee’s sex. Should the employer meet this burden and prove that the sex of the female employee was not one of the considerations that led to the decision as to her pay, then the female employee has not claim under the Equal Opportunities Act. On the other hand, should the employer fail to meet the above burden, the necessary conclusion would be that the female employee has a claim under the Equal Opportunity Act and under the Equal Pay Act.

The Only argument that the Respondent here has is that the Petitioner’s pay was lower than Mor’s pay because the pay she asked for to begin with was lower.

In the HCJ’s view, an employer who demonstrates that it’s employees’ pays is determined through a negotiation, and this when the employer adopts an identical policy for men and women as to the pay of candidates for work, it may meet the burden in a suit filed against it under the Equal Opportunities Act. This, when it is able to demonstrate its pay policy without it being influenced by the sex of the candidates or other considerations prohibited by section 2(a) of the Act. Still, the greater the pay gap between male and female employees, the heavier the burden on the employer to show that the sex of the employee did not serve as a consideration in establishing her pay and that her pay was set lower only because she initially asked for lower pay in the negotiation. In other words, gaps in the relative negotiation power between employees may be used as a reasonable explanation for a certain gap in their pay, but to the extent that the gap is more significant it will become more difficult for the employer to demonstrate that the gap is wholly rooted in the differences in the employees’ negotiation powers and that it is not rooted – even in part – in one of the prohibited considerations listed in section 2(a) of the Equal Opportunities Act.

Under the circumstances of the case, in light of the significant gap between the Petitioner’s pay and Mor’s pay, the mere fact that the two initially asked for different pay does not have the evidentiary force required in order to permit the employer to meet the burden shifted to it under the Equal Opportunities Act. Therefore, demonstrating this fact, and in the absence of any additional evidence from the employer, does not alleviate the concern that the sex of the female employee served as a consideration in setting her pay. In this context it should be noted that the fact that it was shown that the employer does not have a policy of discriminating against women may be taken into account in determining the extent of compensation awarded under the Equal Opportunities Act, as indeed was held by the Regional Labor Court. However, it is irrelevant to the issue of proving the claim itself, once it was found that the relevant comparator group in our case is the other employees in the branch where the Petitioner worked, rather than the entire employee body of the Respondent.

Therefore, the Petition against the decision by the National Labor Court is granted. The High Court of Justice ordered granting the Petitioner’s claim under the Equal Opportunities Act due to her discrimination because of her sex and due to the Respondent’s failure to meet the burden of proof. In light of the delay in submitting the Petition, the HCJ does not find it fit to award the Petitioner compensation under the Equal Opportunities Act. To the extent that the Petitioner followed the decision by the National Labor Court and returned the compensation awarded to her in the Regional Court under the Equal Opportunities Act, the Respondent is not obligated to compensate her now under the Equal Opportunities Act. However, to the extent that the Petitioner still must return the compensation awarded her under the Equal Opportunities Act, this obligation is reversed. In light of the delay in submitting the Petition, there is also no place to award costs in favor of the Petitioners.

Voting Justices:

Beinisch, Dorit

Primary Author

majority opinion

Hendel, Neal

Author

concurrence

Amit, Isaac

Author

concurrence

Full text of the opinion:

IN THE

SUPREME COURT OF THE STATE OF ISRAEL

SITTING AS THE

HIGH COURT OF JUSTICE

HCJ 1758/11

Before: Hon. President D. Beinisch (Ret.)

Hon. Justice N. Hendel

Hon. Justice I. Amit

Petitioners: 1. Orit Goren,

2. The Women’s Lobby of Israel

Respondents: 1. Home Center (Do It Yourself) Ltd.,

2. The National Labor Court in Jerusalem

Argued: 28 Elul 5771 (27 September 2011)

Decided: 25 Iyyar 5772 (17 May 2012)

On behalf of Petitioner 1: Adv. Orna Lin; Adv. Odeliah Ettinger; Adv. Barak Calev

On behalf of Petitioner 2: Adv. Yaniv Wiseman

On behalf of the Respondent 1: Adv. Dror Gal; Adv. Carmit Levi Zamir; Adv. Sima Golin

On behalf of Representatives for Equal Opportunity in the Workplace:

Adv. Tziona Kenig-Yair; Adv. Janet Shalom

Judgment

President Dorit Beinisch (Ret.)

Petitioner 1 (Orit Goren; henceforth, “Petitioner”) won a lawsuit against Respondent 1 (Home Center Ltd.; henceforth, “Respondent”) under the 1996 Equal Pay Act, upon the determination that the salary she received from the Respondent was lower than that of a male employee who performed the same task, and given that the Respondent could not justify the discrepancy. The issue decided by the National Labor Court, among others, in this case was whether proof of discrimination under the Equal Pay Act automatically gives rise to a cause of action under the 1988 Equal Job Opportunities Act. The main issue arising from this question is the fact that under the Equal Job Opportunities Act, unlike the Equal Opportunities Act, it is possible to award damages without proving actual damage. A majority opinion in the National Labor Court determined that a successful claim under the Equal Pay Act does not automatically give rise to claim under the Equal Job Opportunities Act; hence, this petition.

Facts

1. Petitioner worked as a consultant in the tool department of the Respondent’s store at the Ayalon Mall in Ramat Gan from August 25, 1997 until December 27, 1997, where she was paid NIS 17/hr. Along with the Petitioner in the tool department worked Steven Mor, a male, who earned a salary of NIS 5000/month (which amounts to approximately NIS 26/hr.). The two were hired after filling out a questionnaire and an interview by the department head. When asked before their hiring how much they wanted to be paid, the Petitioner requested NIS 3500/month while Mor requested NIS 6000/month. When the Petitioner discovered that Mor received a higher salary than her, she wrote a letter, dated November 16, 1997, to the department head asking for a raise to the effect of either NIS 5000/month or NIS 26/hr. Her letter went unanswered. On December 14, 1997, the Petitioner wrote another letter to her department head pointing out that to the best of her knowledge other employees in her department earn more money than she does. She requested information regarding the salaries of the other employees in her department and provided notice of her resignation effective December 27, 1997. 2. After her resignation, Petitioner filed a lawsuit against the Respondent in the Labor Court for the District of Tel Aviv, claiming the difference in salary between her and the other employees on the basis of both the Equal Pay Act and the Equal Job Opportunities Act. On April 1, 2004, a panel consisting of Judge M. Nachtomi and Public Representatives T. Braffman and Y. Eldar found in her favor. The panel determined that both the Petitioner and Steven Mor worked as consultants in the tool department in the Respondent’s Ramat Gan branch, and that the Respondent did not sufficiently establish either a distinction between the job done by the Petitioner and the job done by Mor; or that Mor had any superior abilities to those of the Petitioner; or that the reason Mor received a higher salary was because he was in line for a managerial position. However, the court determined that the Respondent sufficiently proved that, generally speaking, its male employees do not receive a higher salary than its female employees.

Given the circumstances of the case, the court also had to decide what reference group to use in determining whether the Petitioner was discriminated against.. Should the court compare her salary to all those working in the Respondent’s tool departments across the country or should it compare it to the salaries of those working in the Ramat Gan branch? Regarding this question the court looked to Section 2 of the Equal Pay Act which says that any discrepancy in wage should be calculated against employees employed “by the same employer” and “at the same place of employment.” In light of the fact that the Respondent’s policy in this case is to leave all salary decisions to the discretion of the manager of each branch, the labor court determined that the Petitioner’s loss due to discrimination should be calculated against the salaries of her coworkers at the Ramat Gan branch. Since the Respondent did not provide information regarding the wages of the other workers in the tool department of the Ramat Gan branch, and the court determined that the services provided by the Petitioner were equal to those Mor was hired to do, the court concluded that the Petitioner had sufficiently proven that the disparity in salary between herself and Mor constituted discrimination. The court noted that the fact that the salary offered to the Petitioner was a result of negotiation between her and the department head during which she requested a lower salary than that which Mor requested does not justify the disparity in their salaries. Therefore, the district labor court determined that the Petitioner successfully established a claim under the Equal Pay Act and awarded her NIS 6,944, which is the difference in salary earned between the Petitioner and Mor.

Additionally, the district labor court determined that once it has been found that the Respondent violated the Equal Pay Act, the Petitioner has a legitimate claim under the Equal Job Opportunities Act. The court held that since the Petitioner’s salary was set as a result of her salary request and not at the behest of the Respondent, the Petitioner could not be awarded the full amount under the Equal Job Opportunities Act. Therefore, the court set the amount of compensation owed to the Petitioner under the Equal Job Opportunities Act at NIS 6,944, equal to the compensation awarded to her under the Equal Pay Act.

3. The Respondent appealed the decision to the National Labor Court, and the Petitioner filed a counter-appeal. The Respondent claimed that the Petitioner should not be entitled to compensation under either law, while the Petitioner claimed that she should be entitled to higher damages than those awarded to her under the Equal Job Opportunities Act. In a November 20, 2007 decision, the National Labor Court decided to affirm the lower court’s ruling awarding the Petitioner compensation under the Equal Pay Act, but, in a split decision, held for the Respondent with regards to the Equal Job Opportunities Act and reversed the lower court’s decision to award damages under the Equal Job Opportunities Act.

The Decision of the National Labor Court

4. Judge V. Wirth-Livnah delivered the decision of the National Labor Court. In the decision, Judge Wirth-Livnah interpreted the relevant provisions of both the Equal Job Opportunities Act and the Equal Pay Act and compared the claims available under both statutes. Regarding the Equal Pay Act, Judge Wirth-Livnah agreed with the ruling of the district court according to which the Petitioner’s loss should be calculated against the salaries of those working in the tool department at the branch at which she worked in Ramat Gan, because every branch of the Respondent acts independently, as the manager of each branch determines each employee's salary. Judge Wirth-Livnah added that in this case the information provided by the Petitioner regarding the disparity in salary between her and Mor and the fact that they performed the same task sufficiently fulfilled the Petitioner’s burden of proof in establishing her case. With regards to the exceptions to the Equal Pay Act listed in Section 6 of the statute, Judge Wirth-Livnah determined that it is the responsibility of the Respondent to prove that the case falls into one of the exceptions, and in this case, the Respondent did not meet its burden. Judge Wirth-Livnah pointed out that there may be exceptions to the right to equal pay not listed in the Act, and noted that the right to equal pay is not absolute. Therefore, the right to equal pay must be balanced with the right of employers to privately contract and negotiate a salary with its employees. Thus, Judge Wirth-Livnah determined that if an employer can prove that any discrepancy (so long as it is not extreme) between the salaries of its male and female employees who perform the same task is due solely to the individual salary negotiation the employer has conducted with each individual employee, the right to contract will outweigh the right to equal pay. The employer, however, is required to ensure that the differences in his employees’ salary are reasonable. Additionally, Judge Wirth-Livnah pointed out that if the court were to take away an employer’s right to contract, there could be a negative effect on women, as it could cause employers to avoid hiring women altogether as a means of avoiding the problem of wage gaps.

In this case, Judge Wirth-Livnah determined that because the difference between the Petitioner’s salary and that of Mor stood at 35% and because the Respondent failed to provide information regarding the salaries of other employees working at the branch, this is not a situation in which the right to contract trumps the right to equal pay under the Equal Pay Act. Therefore, Judge Wirth-Livnah concluded that the Petitioner sufficiently established a claim under the Equal Pay Act, and upheld the lower court’s decision in this regard.

While the other members of the panel joined Judge Wirth-Livnah in her decision, it is important to note that Judge S. Tzur (and employer’s Rep. D. Blumberg who joined his opinion) and President S. Adler (with whom employer’s Rep. Y. Shilon joined) did not agree with Judge Wirth-Livnah regarding the circumstances in which the right to contract trumps the right to equal pay. President Adler held that an employer acting in good faith cannot take advantage of the weakness or unfamiliarity of female employees of the appropriate wage rates for the job she is seeking when requesting a lower salary than what a male applicant is requesting. Finally, President Adler noted that the difference in bargaining power between the genders cannot serve as a valid justification for a difference in salary.

5. The main disagreement between the judges in the National Labor Court, however, surrounds the question of the relationship between a claim based on the Equal Pay Act and a claim based on the Equal Job Opportunities Act. Judge Wirth-Livnah, together with Judge Tzur and Employee's Rep. D. Blumberg, held that an award under the Equal Pay Act does not automatically trigger a claim for damages under the Equal Job Opportunities Act. In her opinion, Judge Wirth-Livnah focused on the difference between the two statutes. Under the Equal Pay Act, the plaintiff can be awarded damages for the difference in salary up to the 24 months prior to filing a complaint, whereas under the Equal Job Opportunities Act, a plaintiff can be awarded damages as the court sees fit without the need to establish any monetary loss. Judge Wirth-Livnah noted that compensation under the Equal Job Opportunities Act are aimed at educating employers and deterring discrimination. Therefore, judges have wide latitude in determining what the compensation should be. Furthermore, Judge Wirth-Livnah added that the two Acts are different with regards to the evidence a plaintiff must provide in order to establish a prima facie case of discrimination thus shifting the burden of proof over to the defendant. Under the Equal Pay Act, all that is required of a plaintiff filing suit is to provide the court with information regarding a difference in salary between her and a male employee who performs the same task and in the same workplace; whereas a plaintiff filing suit under the Equal Job Opportunities Act must present actual evidence of discrimination, despite the fact that the Equal Job Opportunities Act does not require the plaintiff to prove that the discrimination was intentional. Judge Wirth-Livnah adds that there are various pieces of legislation intended to protect equality in the workplace, among them the Equal Pay Act, the Equal Job Opportunities Act, the 1954 Women in the Workplace Act and the 1998 Law to Prevent Sexual Harassment. The fact that there are different statutes to this effect calls upon us to look upon them as complimentary of one another as opposed to redundant in which fulfillment of the elements of one claim will automatically fulfill the elements of another. Judge Wirth-Livnah noted that under Section 2 of the Equal Job Opportunities Act, the plaintiff-employee must prove actual discrimination. The importance of this requirement is that any lawsuit filed on the basis of the Equal Job Opportunities Act requires the plaintiff to first and foremost establish that there was gender discrimination, because only proof of discrimination can result in punitive damages.

Judge Wirth-Livnah added that the differences in the evidentiary requirements between the Equal Pay Act and the Equal Job Opportunities Act necessary to establish a cause of action is whether the facts of the case are branded as “discriminatory” and entail punitive damages, which is the case in a Equal Job Opportunities Act lawsuit, but not in a claim filed under the Equal Pay Act. Therefore, Judge Wirth-Livnah concluded that successfully establishing a claim under the Equal Pay Act does not necessarily mean the plaintiff will be successful in a claim under the Equal Job Opportunities Act. Hence, in this case, Judge Wirth-Livnah found that the fact that the lower court concluded that the Respondent’s business did not have a discriminatory policy in place meant that it was not deserving of the punitive measures consistent with a claim under the Equal Job Opportunities Act and that the compensation awarded to the plaintiff under the Equal Pay Act sufficed.

6. President Adler, with whom Employees Rep. Y. Shilon joins, disagreed with Judge Wirth-Livnah and held that a successful claim under the Equal Pay Act gives rise to a claim under the Equal Job Opportunities Act. President Adler ruled that an unequal salary demonstrates discrimination in the workplace which violates Section 2 of the Equal Job Opportunities Act. President Adler pointed out that under both statutes the plaintiff must provide evidence of a difference in salary and unequal treatment between herself and a male employee, thereby shifting the burden of proof to the employer-defendant to prove that he acted legally. Accordingly, an employer who successfully shows that the difference in salary is justified under Section 6(a) of the Equal Pay Act has sufficiently proven that the difference in wage is not a result of the plaintiff’s gender as required by the Equal Job Opportunities Act. Therefore, President Adler held that so long as the employer cannot show that the difference in salary is justified under Section 6(a) of the Equal Pay Act, the only conclusion is that the difference in treatment is a result of the employee’s gender. Furthermore, President Adler added that neither Acts requires the plaintiff to prove that the discrimination was intentional and that every case is to be decided objectively. Additionally, the situations in which a plaintiff can file a claim under the Equal Job Opportunities Act are no less than those available under the Equal Pay Act, and the defenses available to an employer under the Equal Job Opportunities Act are no more than those available under the Equal Pay Act. Thus, concludes President Adler, the two statutes complement one another when they are interpreted in a consistent manner.

With regards to this case, according to President Adler’s approach, the fact that the lower court agreed that the Respondent did not discriminate as a matter of policy is not a good defense against the claims stemming from the two statutes. Paying an employee less than what others, performing the same task, are earning, even if it is against company policy, is a violation of both these laws. Finally, according to President Adler, the question of whether a company policy results in discrimination is a factor in determining the amount of damages to award under the Equal Job Opportunities Act.

The Parties’ Claims

7. The main claims of the Petitioner and of petitioner no.2, The Women's Lobby of Israel (henceforth, “the Petitioners”) touch upon the nature of the relationship between the cause of action under the Equal Pay Act and the cause of action under the Equal Job Opportunities Act given the circumstances of this case and the evidentiary threshold necessary to prove a claim under the Equal Job Opportunities Act. According to the Petitioners, the fact that the Petitioner’s salary was 35% less than that of Mr. Mor is reflective of the deep rooted problem of wage discrimination in the Israeli economy and is sufficient to meet the burden of proof necessary to establish a successful claim not only under the Equal Pay Act, but also under the Equal Job Opportunities Act. The Petitioners further argue that the court cannot deny the Petitioner's compensation under Section 10 of the Equal Job Opportunities Act solely because she could not prove widespread discrimination. According to the Petitioners, the majority ruling in the National Labor Court requiring that a claim of discrimination under the Equal Job Opportunities Act to be "because of" the employee’s gender, is, for all intents and purposes, the same as requiring proof that the employer "intended" to discriminate. Such a burden is, according to the Petitioners, unrealistic. The Petitioners point to the decision of the district labor court (upon which the National Labor Court relied) that there was no company-wide policy resulting in discrimination and argue that the decision of the National Labor Court essentially requires proof of widespread discrimination in the workplace as a condition for relief under the Equal Job Opportunities Act. Additionally, the Petitioners argue that when a court determines that there is a discriminatory effect that cannot be explained by relevant considerations, such as the case at hand, it must not be required to rule on whether the source of the result is a deliberate policy of discrimination. The Petitioners also argue that the National Labor Court’s interpretation of the Equal Job Opportunities Act does not fit with its plain language. The statute itself contains no language suggesting that courts should deviate from the established test for determining discrimination, namely, determining whether there is disparate treatment between two entities that are otherwise equal. The Petitioners further allege that the interpretation of the National Labor Court goes against the purpose of the Equal Job Opportunities Act, which is to serve as a deterrent to discrimination. They argue that in Section 10 of the Equal Job Opportunities Act the legislature permitted punitive damages to be awarded without any proof of damages as a deterrent measure. However, they claim, the National Labor Court’s decision to refrain from imposing such a penalty by setting a high burden of proof for the plaintiff effectively makes such a claim worthless and creates an incentive for the employer to act with indifference towards the Equal Job Opportunities Act. The Petitioners add that parties may not waive the provisions of either the Equal Pay Act or the Equal Job Opportunities Act; therefore, an employee's agreement to take a lower wage should not be looked at as consent to unequal treatment on the part of the employer.

Finally, the Petitioners argue that under the circumstances, this Court should not reject the petition because it was filed three years after the decision in the National Labor Court. The Petitioners claim that the public interest in eliminating discrimination against women and blocking their path up the corporate ladder and the need to permit the use of the Equal Job Opportunities Act to advance this objective outweigh the interest of the Respondent’s reliance on the decision of the National Labor Court. The Petitioners conclude that the Petitioner never gave up her right to compensation and the reason for her delay in filing is due to her lack of financial resources.

8. The Respondent argues that the petition should be dismissed outright due to the long period of time it has taken the Petitioner to file, and thus, the Court cannot accept her factual or legal arguments because of the prolonged time lapse. The Respondent also claims that this case does not justify review by this Court, sitting as the High Court of Justice, based on the rules set forth by Court precedence. The Respondent argues that the claims of the Petitioners regarding the proper interpretation of the relationship between the Equal Pay Act and the Equal Job Opportunities Act with regards to the plaintiff’s burden of proof does not justify this Court’s intervention in a decision of the National Labor Court. Furthermore, the Respondent argues that the effect of reducing the burden of proof required under the Equal Job Opportunities Act to that of the Equal Pay Act, as the Petitioners request, is contrary to the legislative intent. The Respondent points to the fact that the 1996 amendment to the Equal Pay Act expanding the grounds on which a plaintiff may file a claim entered into force eight years after the Equal Job Opportunities Act was enacted. Therefore, had the legislature intended for the burden of proof required by the Equal Pay Act to be sufficient for a successful claim under the Equal Job Opportunities Act, it would have explicitly said so in the amendment, but it did not. The Respondent adds that the two laws complement one another in that while the focus of the Equal Pay Act is the difference in salary between a male and female employee, the Equal Job Opportunities Act focuses on the cause of the difference in salary.

Additionally, the Respondent argues that the Petitioners' argument suggesting that the majority opinion in the National Labor Court decision requires a plaintiff to prove intent to have a successful claim under the Equal Job Opportunities Act should be rejected. The Respondent argues that the Petitioners confuse between the lack of a requirement to prove intent and the requirement to show a causal connection to prove the existence of discrimination. The Respondent adds that the difference in salary between the Petitioner and Mor was a result of, among other things, the salary requests they made to the department head during the course of negotiating their salary. The Respondent adds that granting a specific salary request is not one of the things forbidden to an employer under the Equal Job Opportunities Act, as opposed to the Equal Pay Act which grants am employee the right to equal pay to other employees performing the same task or a job of the same value, even if the difference in pay does not stem from the gender of the employee.

Another point raised by the Respondent concerns the fact that the discrimination prohibited by the Equal Job Opportunities Act is discrimination based on the employee’s membership in a specific protected class (for example, religion, gender, race, etc.). Thus, claims the Respondent, in order for an employee to prove discrimination on the basis of his/her membership in a protected class, (s)he must establish that the employer in question has a policy which results in discrimination against that particular class. In this case, the Respondent claims that it has sufficiently proven that it does not discriminate against its female employees, and even in the same tool department in which the Petitioner and Mor both worked, there were male employees who earned less than Mor. Under these circumstances, the Respondent argues that the earnings difference between the Petitioner and Mor is not enough for a successful claim under the Equal Job Opportunities Act, even though she was granted damages for her claim by the National Labor Court under the Equal Pay Act.

9. In addition to the claims of the parties in this case, we also received an amicus brief filed by the Equal Opportunities Commission of the Ministry of Industry, Trade and Labor. In light of the commission’s interest in this case and its role in the statute involved, we decided to allow its intervention into the proceedings. The commission claims that significant wage gaps between men and women are common in both the public and private sectors. It argues that both the Equal Pay Act and the Equal Job Opportunities Act should be interpreted in light of the existing realities in which significant wage gaps are a commonplace in society. It further argues that the difficulty in proving the existence of discrimination has led us to the point where the Equal Pay Act test is simply a showing of a wage gap between employees and does not require any showing of intent, and that under the Equal Job Opportunities Act, in certain circumstances, the burden of proof is shifted to the employer. The commission claims that the majority opinion in the National Labor Court has serious implications as to the implementation of the Equal Job Opportunities Act, which go against the prevailing theory as to the ability of the plaintiff to prove discrimination under the Equal Job Opportunities Act.

Given the circumstances, the commission argues, the Court should adopt a middle ground between the majority opinion in the National Labor Court and the dissent. It argues that when an employee successfully establishes a difference in salary between her and another employee, despite the implementation of an equal employment policy, the burden of proof would then shift to the employer to prove that there was no discrimination on the basis of gender. If the employer cannot withstand this burden, it would be assumed that it is a case of gender discrimination.

Analysis

10. Before discussing the main question presented by this case regarding the relationship between the Equal Pay Act and the Equal Job Opportunities Act, we will first address the issue raised by the Respondent with regards to the dismissal of the petition. The two issues presented by the Respondent’s claim are (1) whether the amount of time that has elapsed between the date of the decision of the National Labor Court and the filing of this petition has any bearing on whether this Court may hear this case; and (2) whether this Court, in its capacity as the High Court of Justice, can review a decision by the National Labor Court.

Regarding the delay in filing, it seems hard to dispute the fact that filing a petition more than three years after the judgment of the National Labor Court poses a significant hurdle to the Petitioners. Such a delay can be grounds for immediate dismissal when filed with the High Court of Justice. When determining whether such a delay is grounds for dismissal we analyze the delay in three ways: (1) subjectively; (2) objectively; and (3) the effect upon the rule of law if such a claim is allowed to proceed. See HCJ 170/87 Assulin v. Mayor of the City of Kiryat Gat [1988] IsrSC 42(1) 678, 694-95. The subjective test looks to the behavior of the petitioner to determine whether, during the elapsed time, the evidence shows that the petitioner gave up his right to contest the ruling. The objective test asks whether the delay has any impact on the rights or interests of any administrative bodies or third parties. The final test requires the Court to determine whether the delay negatively impacts the rule of law. This is done by balancing the aforementioned considerations consistent with the relative weight of each circumstance. The balance is especially cognizant of the private or public interests impacted by the objective test and the impact on the rule of law. See AA 7142/01 Haifa Local Committee for Planning and Building v. Organization for Protecting the Environment, [2002] IsrSc 56(3) 673, 679.

In this case, it seems that the Petitioner’s delay in filing is evidence of her willingness to forgo her rights in the case, and that the Respondent may have legitimately relied on the decision of the National Labor Court, which is up for review now by this Court. However, due to the importance of the question arising from this petition, which concerns the relationship between various pieces of legislation and the prohibition against gender discrimination in the workplace, we conclude that we should review this petition despite the delay in filing. See HCJ 244/00 Organization for Democratic Discourse v. Minister of National Infrastructure IsrSc [2002] 56(6) 25, 80 - 81. The importance of our decision concerning the parties in this case may have a considerable impact on the rights and obligations of all employers and employees. Additionally, we should add that the Petitioner through her learned attorney, Adv. Orna Lin, has left to this court’s discretion whether it should adjudicate the case of the Petitioner or merely address the underlying legal question.

Furthermore, it is well known that this Court, when sitting as the High Court of Justice, will only intervene in a decision of the National Labor Court when the decision contains a clear legal error, whose correction justice demands. See HCJ 525/84 Hatib v. National Labor Court [1986] IsrSc 40(1) 673, 693; HCJ 3512/04 Shezifi v. National Labor Court [2004] IsrSc 59(4) 70, 74. In light of the importance and implications present in the questions arising from this case, we decided to adjudicate this case.

11. The main question before us is whether proving the elements of a claim under the Equal Pay Act will give rise to a claim under the Equal Job Opportunities Act. In other words, whether proving a difference in salary between a male and female employee performing the same, or substantially the same, task or one equal in value in the same workplace can serve as a basis for a claim under both statutes. In order to answer the question we will look to the language and purpose of the two statutes and determine the relationship between them.

First, the relevant language of Section 2 of the Equal Pay Act which stands at the center of this claim:

The Right to Equal Pay: 2. A male and female employee who perform the same task, or substantially the same task or one which is worth the same, at the same place of employment have the right to equal pay…

Once it has been proven that the employees work at the same workplace (this element has been discussed in the decision of the National Labor Court, but is not relevant to the question before us), the burden of proof shifts to the defendant to prove that the difference in salary is justified under Section 6 of the Equal Pay Act, which states:

Difference in Salary: 6(a) The provisions of Section 2 meant to prevent discrimination in pay, does not prohibit wage differences based on the character or nature of the work under consideration, including productivity, quality of work, seniority at work, training or education, or geographic location of the work, which do not constitute gender discrimination.

(b) In an action under this Act, the Labor Court has determined that when, in the dispute in question, the employees perform the same or essentially the same task or a task of equal value, the burden of proof shifts to the employer to prove that the difference in salary is justified under subsection (a)

The Equal Job Opportunities Act prohibits gender discrimination in the workplace. The basic point of the law is in Section 2(a) of the Equal Job Opportunities Act which states:

The Prohibition of Discrimination: 2(a) An employer may not discriminate between employees or between job seekers on the basis of their gender, sexual orientation, marital status, pregnancy, infertility treatment, in vitro fertilization treatments, parenthood, age, race, religion, nationality, country of origin, worldview, their political party, reserve duty, their potential to be called to reserve duty or duration of reserve service… regarding any of the following work decisions:

(1) hiring;

(2) work conditions;

(3) promotions;

(4) professional development;

(5) dismissal or severance pay; and

(6) retirement benefits.

Subsection 2(a) is qualified by subsection 2(c) of the Equal Job Opportunities Act which states, “There is no discrimination under this Act, when it is required by the nature or character of the task or the position.” Regarding the burden of proof in claims filed under the Equal Job Opportunities Act, Section 9 states:

Burden of Proof: 9(a) In an action filed by a prospective employee or an employee filing a claim under Section 2, the employer must prove that he acted in accordance with Section 2 when:

[(1)]Regarding hiring, promotion, working conditions, professional development, severance pay - if the employer established conditions or qualifications, and the employee proves that he or she fulfills the said requirements;

[(2)]Regarding dismissal - if the employee proves that his conduct did not amount to grounds for dismissal.

12. In this case, the Petitioner has proven, as the National Labor Court determined, that her salary was 35% lower than that of Mor – a male employee who performed the same task as the Petitioner. Given the circumstances and the fact that the Respondent did not justify the disparity under Section 6 of the Equal Pay Act, the Petitioner successfully proved her claim under the Equal Pay Act. The question in this case is now whether the disparity automatically gives rise to the conclusion that the Petitioner was discriminated against unlawfully by the Respondent (regarding her salary) because of her gender under Section 2(a) of the Equal Job Opportunities Act. To decide this, we must look to the purpose of each law to determine the relationship between them.

13. Both the Equal Pay Act and the Equal Job Opportunities Act were enacted for the purpose of advancing equality in the workplace by prohibiting an employer from discriminating on the basis of irrelevant or illegitimate considerations. The principle of equality and the prohibition against discrimination is an essential principle in our legal system and is a prerequisite for any democracy based on fairness and justice. As Justice M. Landau noted with regards to the principle of equality, “This notion, which is unwritten, is the essence of our entire constitutional system of law.” HCJ 98/69 Bergman v. Minister of Finance and State Comptroller [1969] IsrSc 23(1) 693, 698. This Court has upheld this principle on more than one occasion, and has even determined that this principle enjoys constitutional protection. See HCJ 6427/02 The Movement for Quality Government in Israel v. The Israeli Knesset [2006] IsrSc 61(1) 619, 688 - 89 (2006). Regarding the essence of this principle and the prohibition of discrimination in our system of law, then-Deputy President A. Barak stated:

[P]eople are different from one another. ‘...No person is completely identical to another’…Every person is a world in himself. Society is based on people who are different from one another. Only the worst dictatorships try to eradicate these differences. Moreover, the presumption behind the Basic Law: Human Dignity and Liberty is that every person is free to develop physically and spiritually as he sees fit (see HCJ 5688/92 Wechselbaum v. Minister of Defence [15]). This underlying freedom is the basis for the principle of equality. It means equality before the law and the law being impartial to the differences between people. It means equality in applying freedom. It means equality in opportunities. This equality presumes a normative arrangement that is applied uniformly to all individuals, irrespective of the factual difference between them. However, the principle of equality does not presume only one rule for everyone. Indeed, the principle of equality does not rule out different rules for different people. The principle of equality demands that the existence of a rule that treats people differently is justified by the nature and substance of the issue. The principle of equality therefore presumes the existence of objective reasons that justify a difference (a distinction, dissimilarity). Discrimination — which is the opposite of equality — exists therefore in those situations where a different law for people who are (de facto) different from one another is based on reasons that are insufficient to justify a distinction between them in a free and democratic society.... Therefore a particular law will create discrimination when two individuals, who are different from one another (factual inequality), are treated differently by the law, even though the factual difference between them does not justify different treatment in the circumstances. Discrimination is therefore based on the factors of arbitrariness, injustice and unreasonableness.

HCJ 721/94 El Al Israel Airlines Ltd. v. Danielowitz [1994] IsrSc 48(5) 749, 760 - 61.

The principle of equality and the prohibition of discrimination have been applied in different ways in the labor market, and have been explicitly mentioned in labor legislation. This is because of the presumption that labor relations is one of the main areas of society in which members of certain groups in society are prone to unjust discrimination affecting their economic and social status on the basis of unjustified stereotypes or prejudices. Preventing discrimination in the labor market will therefore prevent unjust prejudice based on assumptions which are irrelevant to the position in question. Furthermore, it stands to reason that in the long run, a ban on discrimination in the labor market, as has been implemented, will undermine stereotypes and prejudices that largely form the basis for illegal discrimination in society. As then-Justice E. Matza appropriately states,

[D]iscrimination against women in the employment and economic sectors has a cumulative effect on their negative image, as a class which is supposedly inferior, in other spheres as well. Thus, for instance, the lack of proper representation of women in various fields and various workplaces contributes to fostering a negative image of their ability to manage their lives independently. It follows that discrimination against women in economic spheres in its own way nurtures the long-term entrenchment of distorted social outlooks.

See HCJ 453/94 The Women’s Lobby v. The Minister of Transportation [1994] IsrSc 48(5) 501, 524 (henceforth, “In Re The Women’s Lobby”). In order to achieve these objectives and prevent illegal discrimination, the two statutes at issue here restrain an employer’s general right to contract and limit his discretion in managing his business.

14. The Equal Pay Act was enacted to decisively combat one of society’s greatest expressions of illegal discrimination, namely, compensating men and women differently for the same, or substantially the same, task or for a job of equal value. The statute was first enacted in 1964 and then reenacted in 1996. Section 1 of the Equal Pay Act explains the law’s purpose,

Purpose: 1. The goal of this law is to advance the principle of equality and prevent gender discrimination with regards to wage or any other aspect of the workplace.

The right to equal pay arises when the employees perform the same, or substantially the same, task or one of equal value. The law establishes a legal presumption of gender discrimination when there is a difference in salary between a male employee and a female employee. It is important to note that despite the amount of time that has passed since the law was enacted, gender discrimination with regards to wages is, unfortunately, still in practice. A 2010 Knesset survey, released by that National Center for Statistics on September 7, 2011 stated that women earn on average 66% of what men earn a month and 84% of what men earn per hour. See http://www.cbs.gov.il/reader/newhodaot/hodaa_template.html?hodaa=201115219.

Furthermore, it is important to note that lower wages is only one method of discrimination against women in the labor market. Others include not hiring women, sexual harassment, the inadequate representation of women in senior positions and the mistreatment of pregnant women and mothers. Throughout the years, the Knesset has attempted to deal with these various expressions of gender discrimination whether through the two laws at issue in this case or by other pieces of legislation (see, e.g., The 1951 Equal Rights for Women Act, the 1954 Women in the Workplace Act, and the 1998 Law Against Sexual Harassment in the Workplace). This Court has also acted to protect the rights of women and to prevent discrimination against them (see, e.g., HCJ 153/87 Shakdiel v. The Minister of Religious Affairs [1988] IsrSc 42(2) 221; In Re The Women’s Lobby; HCJ 2671/98 The Women’s Lobby in Israel v. The Minister of Labor and Welfare [1988] IsrSc 52(3) 630). Regarding the laws in place to advance equality between men and women we quote the words of then-Justice M. Cheshin in HCJ 2671/98 at 657 - 58:

We reviewed statutes and established rules based on our interpretation of the law. The common denominator of these rules was and is the pressing social need to recognize the equal status of women and to strengthen this notion of equality. These laws are progressive and the rules are no different. When seen from afar, these laws and rules may seem strange and indirect, but I assume that a day will come when these laws will seem like child’s play, laws which are praised by the great ones of today. Here we have a woman's right to "equal pay for the same job" as per Section 2 of the Equal Pay Act, does this law not state the obvious? Does it matter whether 500 boxes are packed by a man or a woman? Was this legislation not obvious and self evident even before its enactment? Had this law not been passed would we have not established it as a rule stemming from the (constitutional) principle of equality? The same can be said about the Equal Job Opportunities Act. There is no law which states that which we already know, namely that it is wrong to discriminate against women for no reason other than her gender. This can be said for these two laws and any other law enacted with the same purpose. These statutes have been enacted solely to explain illegal discrimination which has taken root in society, and the instructions therein are only to spell out to the masses what norms should prevail. The legislator explicitly warns us of the need to eliminate illegal acts that have taken hold and place women in the place they should have been in to begin with. The legislator has not declared new norms that are not self evident, rather, it has taken its time to spell out what exactly our legal and societal norms should be. After having done that, the legislator correctly sanctions anyone who violates the law. These laws are like rays of light, and the light in this case is equality, or, more specifically, gender equality in all matters. If we go from one ray of light to another, the doctrine of equality will reveal itself in all its glory.

Unfortunately, even today, the second decade of the 21st century, we still need legislation to protect women from gender discrimination. I would have hoped that today we would be in the era in which these laws would be, as Justice Cheshin described, “child’s play;” however, this era is still far, perhaps even very far, away from us.

15. The Equal Job Opportunities Act is broader than the Equal Pay Act and was enacted to deal not only with gender discrimination, but with other forms of discrimination as well (such as age, sexual orientation, race and religion). Likewise, the purpose of the Equal Job Opportunities Act is to prevent discrimination not only in pay, but in other aspects of the workplace as well (like hiring, work conditions and promotions). These two statutes have different definitions for what constitutes illegal discrimination. The Equal Pay Act looks to the end result by requiring only a showing of difference in pay between a male employee and a female employee in order to have a successful claim. Under Sections 2 and 6 of the Equal Pay Act, the labor court adjudicating such a claim must see if there is a difference in salary between the female plaintiff and a male employee to whom she is comparing her salary and who performs the same, or substantially the same, task or a one of equal value. Once this is successfully established, the burden of proof shifts over to the employer to prove that the difference in salary is justified under Section 6(a) of the Equal Pay Act. As President Adler pointed out in his decision, the list provided in Section 6(a) is not exhaustive. However, any considerations not listed in Section 6(a) of the Equal Pay Act must be of the same kind as those listed and must be ones that demonstrate a difference in the “nature or the character” of the job in question. If the employer cannot meet his burden of proof, the court must conclude that the plaintiff has a valid claim under the Equal Pay Act.

I must note that I cannot accept the opinion of Judge Wirth-Livnah - who on this point was a lone opinion – arguing that the employer’s freedom to contract is a consideration which may, under certain circumstances, justify a difference in salary between a male employee and a female employee, even when it is not in the framework of one of the considerations listed in Section 6(a). Through the considerations outlined in Section 6(a), the legislature determined what the balance should be between the freedom to contract and the protection of equality by listing relevant considerations which can justify a difference in salary between a male and female employee performing the same task. Due to the importance of the principle of equality in our legal system and the need to prevent unjust gender discrimination, I believe that the freedom to contract cannot, on its own, be a legitimate consideration justifying a difference in wage between a male and female employee. Recognizing the freedom to contract by itself as a legitimate defense to a claim of gender discrimination may lead to its utilization as a fig leaf to cover up real discrimination, completely undermining the purpose of the Equal Pay Act. Allowing this as a defense ignores the fact that there are actual gaps between the genders in the labor market with regards to salary demands and salary negotiation. See Sharon Rabin-Margaliot, The Market Explanation to Wage Differences: In Light of the Home Center (Do It Yourself) Ltd. v. Orit Goren, 50 HaPraklit 501, 512 – 20 (5770) (henceforth, “Market Explanations”).

In order to deal with the difficulty women have in the labor market, the legislature decided to limit the employer’s freedom to contract in order to advance the principle of equality. In the absence of any other considerations affecting the worker in question (as outlined in Section 6 of the Equal Pay Act), the employer may not differently compensate a male and female employee who are performing the same task. Therefore, the legislature made a value judgment to limit the contractual freedom of an employer in order to reduce gender discrimination in the labor market. To further this goal, taking into account the imbalance of power inherent between employees (especially females) and employers, the legislature lightened the burden imposed on the employee-plaintiff by shifting the burden of proof onto the employer under Section 6 of the Equal Pay Act. Accepting the idea that the freedom to contract may justify a wage gap is contrary to the fundamental purpose of the Equal Pay Act, which is reducing the impact of gender discrimination on market forces in determining the salaries of women.

Additionally, I reject the argument of Judge Wirth-Livnah according to which allowing the right to equal pay to supersede the freedom to contract will cause employers to avoid hiring women. By instituting such a policy, an employer will violate the Equal Job Opportunities Act, which prohibits an employer from considering gender in making personnel decisions. Such an employer would be liable to both civil and criminal penalties. Therefore, the method by which we can prevent gender discrimination in the labor market is by enforcing the laws in place to that effect and not by avoiding these laws by taking into account market conditions.

16. Unlike the Equal Pay Act, a claim under the Equal Job Opportunities Act requires the plaintiff to establish causation. Illegal discrimination under the Equal Job Opportunities Act is discrimination committed “because of” the plaintiff’s identity as a member of a protected class. In order to prove a claim of discrimination under the Equal Job Opportunities Act, a plaintiff must prove that the employer acted discriminatorily when making one of the employment decisions listed in Section 2(a) of the Equal Job Opportunities Act. We must point out that the Equal Job Opportunities Act does not require the plaintiff to prove the defendant acted intentionally to be successful in her claim.

Regarding a policy requiring different retirement ages for men and women, Justice G. Bach stated:

I am prepared to assume that Petitioner's employer did not intend to discriminate against [the petitioner] and the other female employees when it signed the Labor Constitution. However, the Respondent's intentions are not conclusive as to the question that we are called upon to determine, because the test for assessing the existence or nonexistence of discrimination is objective and not subjective. The motive for creating a distinction between men and women is not determinative in the matter addressed, and for the purposes of determining the existence of discrimination, it is necessary to examine the final outcome as it appears in social reality.

HCJ 104/87 Nevo v. National Labor Court, IsrSc [1990] 44(4) 749, 759.

Therefore, an employer taking into account one of the considerations listed in Section 2(a) of the Equal Job Opportunities Act when making an employment decision can trigger liability. Even without any intent to discriminate, taking into account an employee’s gender, age, religion or any of the other protected classes listed in Section 2(a) of the Equal Job Opportunities Act is prohibited, unless the nature or character position in question reasonably requires such discernment as provided by Section 2(a) of the law. Furthermore, in light of the difficulty in proving that the employer took into account the employee’s membership in a protected class in making a personnel decision, Section 9 of the Equal Job Opportunities Act allows the employee to merely prove that he or she meets the qualifications of the position in question in order to shift the burden of proof onto the employer to rebut the claim of discrimination and prove that his decision was not based on any illegal consideration. See HCJ Rehearing 4191/97 Recanat v. National Labor Court [2000] IsrSc 54(5) 330, 351 – 52; Sharon Rabin-Margaliot, The Elusive Case of Employment Discrimination – How to Prove its Existence, 44 HaPraklit 529, 539 – 43 (5758 - 5760).

In short, in a claim filed under the Equal Pay Act, one needs to establish that there is a difference in salary between herself and a male employee performing the same (or substantially the same) task (or a task of equal value), and if the employer cannot prove that the difference in salary is justified, the plaintiff will be successful. However, to file a claim under the Equal Job Opportunities Act, the plaintiff must prove that the employer took into consideration the plaintiff’s membership in a protected class when making the employment decision in question. In other words, the Equal Pay Act creates a legal presumption of discrimination if the plaintiff can prove that there is a difference in salary between her and a male employee and the employer cannot legally justify the difference. Such a legal presumption does not exist under the Equal Job Opportunities Act, and therefore, the burden upon a plaintiff in such a claim is much heavier. However, the Equal Job Opportunities Act does not require proof that the employer intended to discriminate, only proof that there is causation between the employer’s consideration of the plaintiff’s membership in a protected class under Section 2(a) and the employment decision in question.

17. Another important distinction between the Equal Pay Act and the Equal Job Opportunities Act is the remedy prescribed by the legislature for the violation of the laws. Under the Equal Pay Act, punitive damages may not be awarded, and Section 8(a) of the law limits the time in which an affected employee can file a claim for back pay to 24 months. By contrast, under Section 2 of the Equal Job Opportunities Act, a labor court may, pursuant to Section 10(a)(1) of the law, award damages as it sees fit given the circumstances, even in the absence of any proof of loss. These damages serve as a deterrence and are not available under the Equal Pay Act. Under Section 10(a)(2) of the Equal Job Opportunities Act, a labor court may even, under certain circumstances, issue an injunction or a direct order if it determines that a monetary award is not sufficient. Additionally, under Section 15(a) of the Equal Job Opportunities Act, a person in violation of the statute may be fined up to double the fine established by Section 61(a)(3) of the 1977 Penal Code.

18. The purpose of the Equal Pay Act is to deal with one of the more common expressions of gender discrimination in the workplace; therefore, the plaintiff has a considerably lighter burden of proof. However, the law limits the damages that can be awarded in such a case. The purpose of the Equal Job Opportunities Act is to deal with different types of discrimination that affects different classes of people and requires proof of causation between the illegal consideration taken into account and the employment decision in question. Additionally, the Equal Job Opportunities Act permits an award of damages even without any proof of economic damages on the part of the plaintiff and allows for punitive measures to be taken against the discriminating employer.

19. In this case, the Petitioner’s claim under the Equal Pay Act is not in question considering the salary difference between her and Mr. Mor who performed the same task as the Petitioner. The issue we must decide is whether this claim is enough for the Petitioner to also have a claim under the Equal Job Opportunities Act. The majority opinion in the National Labor Court decided this question in the negative, when determining that it is not one of the circumstances in which a plaintiff can shift the burden of proof over to the employer in accordance with Section 9 of the Equal Job Opportunities Act. The National Labor Court determined that in order to shift the burden, the plaintiff must bring evidence that the employer discriminated against or treated his employees unequally. Furthermore, Judge Wirth-Livnah determined that the employee must provide evidence adequately demonstrating discrimination on the part of the employer. The mere fact that the plaintiff has a successful claim under the Equal Pay Act does not fulfill this requirement.

By contrast, the dissenting opinion of President Adler held that a successful claim under the Equal Pay Act suffices to create a prima facie case of discrimination under the Equal Job Opportunities Act. Because the employer could not successfully rebut the claim of the employee under Section 6(a) of the Equal Pay Act, it stands to reason that the cause for the pay difference is the employee’s gender. We will now determine whether this is so.

20. In light of the differences between the two laws, a successful claim under the Equal Pay Act will not automatically trigger a claim under the Equal Job Opportunities Act. Each statute is meant to safeguard against different forms of discrimination in the workplace; each have different ways of testing whether discrimination has occurred; and each provide for different penalties for their respective offenders. It seems, therefore, that allowing for the laws to overlap would be inconsistent with the respective purposes of the statutes and the problems they are designed to address. The Equal Pay Act deals with one common example of gender discrimination in the workplace and the cause of action created by the law fits this type of discrimination. This cause of action is not the same as that of the Equal Job Opportunities Act, which sets a higher bar for establishing a successful claim against an employer and relates to various types of employment decisions. However, the Equal Job Opportunities Act recognizes, so to speak, the difficulty an affected employee may have in demonstrating the considerations taken into account by the employer, and allows, under certain circumstances, for the burden of proof to be shifted over to the employer to prove that he did not act out of wrongful discrimination. The question is, what is the evidentiary minimum necessary to shift the burden of proof over to the employer under the Equal Job Opportunities Act, and whether a successful claim under the Equal Pay Act fulfills this requirement.

21. Section 9 of the Equal Job Opportunities Act deals with the circumstances by which a plaintiff may shift the burden of proof over to the defendant. Under Section 9(a), the burden may be shifted if the plaintiff can prove that he fulfills the conditions and requirements set by the employer to be considered for the employment decision in question. The burden placed upon the plaintiff is relatively light. A close reading of Sections 2 and 9 of the Equal Job Opportunities Act leads to the conclusion that a plaintiff claiming discrimination on the basis of his membership in one of the protected classes listed in Section 2 must prove that he fulfills the conditions and requirements set forth by the employer for the employment decision in question in order to shift the burden onto the employer to prove that his decision was not influenced by any wrongful considerations.

22. The circumstances established by Section 9 of the Equal Job Opportunities Act are only one example of where the burden of proof may be shifted, and I accept the argument made by the Equal Opportunities Commission that there may be other circumstances in which the burden of proof may be shifted as well. Because the question of whether or not the employer discriminated against the plaintiff is not necessarily related to whether or not the employee was fit for the position in question, Section 9 of the Equal Job Opportunities Act is not a complete list of methods by which a plaintiff can shift the burden of proof. Therefore, in light of the difficulty in proving the considerations of the employer in making his decision, it stands to reason that the burden should be shifted in a case where the employee can prove that the employer had discriminated against him in the past. Furthermore, because of the power imbalance inherent in an employer/employee relationship, the burden upon the plaintiff should not be particularly high. Hence, the establishment of a prima facie case of discrimination will depend on the independent circumstances of each case.

Therefore, I do not believe that the opinion of the National Labor Court requiring the plaintiff to prove discrimination on the part of the employer, as is the opinion of the National Labor Court, is correct. As will be explained below, it is sufficient for the plaintiff to prove that there is a significant wage gap between her and a fellow male employee in order to shift the burden of proof to the employer under the Equal Job Opportunities Act.

Additionally, the plaintiff can also shift the burden by demonstrating a policy of discrimination on the part of the employer based on the criteria outlined by Section 2 of the Equal Job Opportunities Act. The evidence provided may have the same effect if it can prove that the result of any decision or policy undertaken by the employer has a discriminatory effect, even if it is not based on one of the prohibited considerations. The evidence the plaintiff must provide in order to meet the requirements of this evidentiary test must relate to the relationship between the employer and the plaintiff employee in comparison to the employer’s relationship with the other employees who are not members of the same protected class as the plaintiff. The evidence should also compare the employer’s behavior towards employees who are members of the plaintiff’s protected class to his treatment of employees who are not members of the class in question. Once the plaintiff has successfully demonstrated disparate treatment, the burden of proof will shift onto the employer to prove either that the disparity in treatment stems from the nature of the position under Section 2(c) of the Equal Job Opportunities Act, or that it stems from a reason unrelated to any of the illegal considerations listed in Section 2(a) of the Equal Job Opportunities Act. It is important to note that the Equal Job Opportunities Act explicitly lists the considerations which an employee may not take into account when making certain employment decisions. If he can prove that the discriminatory result was not based on any wrongful considerations, he will successfully establish that he did not discriminate “because of” any wrongful considerations. As President Barak stated regarding age discrimination in the Recanat Further Hearing:

As a general rule, the burden of proof is imposed upon the employee-plaintiff claiming discrimination. This burden is met when the plaintiff proves that the employer mandates retirement when employees reach a certain age (this is direct discrimination). The burden may also be met by establishing that a regular practice of the employer results in age discrimination (this is indirect discrimination). In the first case, it is enough to prove that company policy dictates different retirement ages for different workers. Proving the existence of such a rule, irrespective of the position of the employee, will prove the existence of discrimination “because of” age. In the second case, the official policy is indiscriminate and does not mandate different retirement ages for different employees. However, the requirements of the job set by the employer effectively results in different retirement ages for different employees. By establishing this practice, the employee meets his burden of proof demonstrating the existence of discrimination “because of” age. Needless to say, such a case is only indirect, but enough proof to show that the employer discriminates “because of” age (Section 2(a)). At this point, a court must determine whether the difference in retirement ages is a result of the nature of the position in question (Section 2(c)). The burden of proof will shift to the defendant (usually the employer, see Section 9(a) of the Equal Job Opportunities Act) to prove this is the case. Note that with regards to the substantive law, whether discrimination exists is linked to the nature of the job in question. In terms of the procedural law, a distinction is made regarding the burden of proof.

FH 4191/97 Recanat, IsrSc 54(5) at 351 - 52.

23. Regarding the issue at hand, I have come to the conclusion that a successful claim under the Equal Pay Act suffices to fulfill the evidentiary threshold necessary to shift the burden of proof over to the employer in a claim filed under the Equal Job Opportunities Act. Once the plaintiff has proven that a male coworker receives a higher salary while performing the same, or substantially the same, task or one of equal value in the same workplace, and the employer cannot justify the difference in salary based on the nature of the task performed (under Section 6 of the Equal Pay Act), the plaintiff will have established a prima facie case of gender discrimination. Note that there is no dispute with regards to the understanding that Section 2(a) of the Equal Job Opportunities Act forbids an employer from taking into account the gender of an employee when determining her salary. When an employee successfully establishes a claim under the Equal Pay Act, the implication is that she was discriminated against by her employer on the basis of her gender, which is demonstrated by the wage gap between her and a male employee, which could not be adequately justified by the employer under Section 6(a) of the Equal Pay Act. These circumstances will shift the burden of proof onto the employer to prove that the wage gap is a result of the nature of the position in question under Section 2(c) of the Equal Job Opportunities Act or that the reason for the difference in salary is unrelated to any of the considerations prohibited by the Equal Job Opportunities Act. In other words, the employer must prove that there is no causal relationship between the wage gap and the gender of the employee, and thus, the difference in salary is not “because of” the plaintiff’s gender. If the employer can successfully prove that the plaintiff’s gender was not taken into account when determining her salary, the plaintiff will not have a successful claim under the Equal Job Opportunities Act. By contrast, if the employer cannot meet his burden of proof, the court will have no choice but to determine that the employee-plaintiff has a valid claim under both the Equal Pay Act and the Equal Job Opportunities Act.

24. In the case before us, it is undisputed that the Petitioner has a successful claim under the Equal Pay Act. Given the circumstances, the burden of proof now shifts over to the Respondent to prove that there is no causal connection between the gender of the Petitioner and the 35% difference in salary between her and Mor, meaning that her gender was not taken into consideration when determining her salary. The factual background outlined by the district labor court indicates that the Respondent successfully proved that there is no general company policy regarding pay which results in discrimination against women; however, it did not provide the salaries of the other workers working in the tool department of the Ramat Gan branch, which is where the Petitioner worked. This information is important in light of the fact that at the time, individual salaries were not determined by the Respondent’s corporate administration, but rather by the managers of each individual branch. Therefore, the only claim of the Respondent is that the reason for the Petitioner’s lower salary is because of the fact that she asked for a lower wage when negotiating her salary (the Petitioner asked for NIS 3,500/month, while Mor requested NIS 6,000/month; the Petitioner was given a salary of NIS 17/hr – which equals NIS 3,264/month – and Mor received a salary of NIS 5,000/month).

An employer proving that the salaries of his workers is a result of negotiations between the parties and that he treats both male and female employees the same with regards to their salary will meet his burden of proof under the Equal Job Opportunities Act, so long as he can demonstrate a company policy regarding wages that is uninfluenced by gender or any of the other classes protected by Section 2(a). When wages are negotiated by the parties, we cannot necessarily say that the employee’s gender was taken into consideration or that the employee was discriminated against “because of” her gender, though whether the inherent inferiority of the employee was taken into consideration by the employer is a factor, among others, that must be taken into account by the court. Moreover, it is important to note that in this case there may be a difference between a claim filed under the Equal Pay Act which merely tests whether there is a difference in salary between male and female employees, and whose purpose is to deal with, among other things, the weaker bargaining power of women in the job market and a claim filed under the Equal Job Opportunities Act, which tests the legality of the considerations taken into account by the employer when making employment decisions (including salary decisions). Compare The 1954 Women in the Workplace Act, and The Equal Job Opportunities Act; HCJ 554/05 Ashkenazi v. Police Superintendent [2005] IsrSc 60(2) 299, 306. To quote the words of S. Rabin – Margalit:

The Equal Job Opportunities Act is based on causation. A successful plaintiff will need to prove that the employer took a wrongful consideration – the fact she is a woman – into account when determining her salary. The causation element must be proven, in other words, she must prove that the reason her salary is lower is because she is a woman. As has been mentioned, the Equal Pay Act is not based on causation. Therefore, there may be instances in which liability exists under the Equal Pay Act, but not the Equal Job Opportunities Act. In those instances in which a difference in salary between male and female employees is established, but it cannot be proven that the employees’ gender was the cause, or one of the causes, influencing the difference in pay, there will be liability pursuant to the Equal Pay Act, but not necessarily under the Equal Job Opportunities Act. This would explain why the Equal Pay Act was enacted in 1996, despite the fact that the Equal Job Opportunities Act, which also prohibits discrimination with regards to wages, had already been in effect for almost a decade (1988).

Rabin-Margaliot, “Market Explanations” at 504 - 05.

Furthermore, the more significant the difference in pay between a male and a female employee, the more significant the burden of proof upon the employer to show that the employee’s gender was not a consideration in determining what to pay her, and that the only reason for her lower salary is because she asked for a lower one during salary negotiations. In other words, employee differences in bargaining power may explain differences in salary; however, the more significant the difference, the more difficult it will be for the employer to prove that the difference is wholly based on the employees’ bargaining power and not even partially based on a consideration prohibited by Section 2(a) of the Equal Job Opportunities Act. Additionally, because the Petitioner did not provide evidence to its effect in the district labor court, I should note that I am not answering the question of whether the practice of salary negotiation is one that (indirectly) discriminates against women.

25. In this case, due to the significant difference in salary between the Petitioner and Mor, the claim that the Petitioner asked for a much lower salary is not good enough of a claim on the part of the Respondent to meet his burden establishing that the Petitioner’s gender was not taken into account when deciding how much to pay her. When there is a 35% difference in salary between a male and female employee performing the same task and the Respondent cannot provide a relevant consideration justifying the pay difference, the claim that there was a difference in their respective salary requests is not strong enough to absolve the employer under the Equal Job Opportunities Act. Proving this claim without any other evidence on the part of the employer is not enough to rebut the presumption that the Petitioner’s gender was taken into account when deciding her salary.

Additionally, as the district labor court held, the fact that the Respondent does not have a policy which results in discrimination is a consideration that can be taken into account when determining the amount of damages to be awarded under the Equal Job Opportunities Act. However, this has no bearing on the proof of the claim itself, once we have determined that the plaintiff’s salary is to be measured against the employees working at her branch and not the general pool of employees working for the Respondent.

26. Therefore, we rule in favor of the Petitioner, and overturn the decision of the National Labor Court. The Petitioner has a valid claim under the Equal Job Opportunities Act in light of the gender discrimination and the Respondent’s failure to meet his burden of proof. Additionally, any obligation the Petitioner may have to return the compensation she received from the Respondent under the Equal Pay Act is void. However, I would not award any damages to the Petitioner under the Equal Job Opportunities Act, due to her delay in filing her petition and her attorney's request that the determination of damages that the Petitioner may be entitled to be left to the discretion of this Court. Also, I see no reason to take a position regarding the damages she was awarded by the district labor court. This means that the Petitioner’s reliance on the decision of the National Labor Court means that the Respondent need not compensate her under the Equal Job Opportunities Act. Thus, any obligation the Respondent may have towards the Petitioner under the Equal Job Opportunities Act is void.

Finally, because of the delay in filing her petition, we will not award any costs or attorney’s fees to the Petitioner.

The President (Ret.)

Justice I. Amit

I concur and would like to add the following:

1. The decision of the National Labor Court is not appealable and can only be reviewed by this Court as a petition to the High Court of Justice, similar to a petition regarding the decision of a Rabbinical Court. Since this case involves a petition and not an appeal, the Respondent cannot claim that the plaintiff’s delay in filing makes the decision of the National Labor Court absolute barring the High Court of Justice from hearing the case. However, because filing a petition is the only remedy available, someone requesting that the decision of the National Labor Court be reviewed should do so soon after the decision is handed down. The extensive case law behind the issue of dismissal for claims not immediately filed, some of which were quoted by President Beinisch in paragraph 10 of her opinion, deal with administrative decisions, while this case involves a judicial decision. (As a side point, the distinction between different types of decisions is covered in Section 15(d) of the Basic Law: The Judiciary. Section 15(d)(2) authorizes the High Court of Justice to issue orders to authorities and public officials, Section 15(d)(3) authorizes the Court to issue orders to other courts, tribunals and other bodies and individuals who act out of judicial or quasi-judicial authority. Section 15(d)(4) authorizes the Court to issue orders to religious courts.) As a general rule, I believe that this Court should show restraint when so much time has passed from the time of the original decision in another court. This Court should exercise its power of review only in rare situations such as where it is discovered, after the fact, that the decision of the National Labor Court has broad ramifications unforeseen at the time of the decision, or where there is a strong public interest justifying a hearing despite the time lapse. See HCJ 3514/07 Mivatchim Mossad LiBituach Sociali Shel Ovdim Ltd. v. Feurst [May 13, 2012] at Para. 28 (unpublished). I should add that this case should not be viewed as precedentially groundbreaking.

2. Regarding the main issue of this case, I agree with my colleague that a successful claim under the Equal Pay Act will not necessarily be successful under the Equal Job Opportunities Act. This can also be inferred from the language of Section 6(a) of the Equal Pay Act:

Section 2 does not prohibit a difference in salary or other compensation stemming from the nature of the work involved, including quality of work, seniority, training or education, or geographical location of the workplace, so long as there is no discrimination on the basis of gender (emphasis added – I. A.).

It is not enough for the employer to provide a relevant justification for the difference in salary; we must examine the justification provided to ensure that the justification is not a cover for gender discrimination. Similarly, if the employer cannot justify the difference in pay, it does not necessarily mean that the difference is due to gender discrimination. The issue of discrimination is to be examined within the framework of the Equal Job Opportunities Act and not the Equal Pay Act.

In short – the plain language of the laws themselves, the difference in how the claims are defined by the respective laws, the different purposes of the laws, the need for establishing causation under the Equal Job Opportunities Act, the different remedies provided, and the need for the Equal Pay Act to be enacted after the Equal Job Opportunities Act was already in effect, despite the fact that not compensating two employees equally can lead to claim of illegal discrimination in “work conditions” – all point to the conclusion reached by my colleague.

3. As mentioned in Section 6(a), an employer can justify a pay difference based on the nature of the task being performed; however, pre-employment salary negotiations are not included in this exception. See Rabin-Margaliot, “Market Explanations” at 503.<<this is the format for imbedded citations in English>> Women ask for lower salaries for different reasons, some of which perpetuate the reality in the workplace and stereotyping for which the Equal Pay Act was put in place in order to fix. Expanding the list of justifications listed in Section 6(a) by recognizing the negotiating patterns of the employer and his freedom to contract as additional justifications for pay differences between men and women is not evident in the plain language of the law and can lead to an incorrect interpretation of the law. In other words, in Section 6(a) the legislature formulates a balance in the form of a limited list of justifications involving the nature of the job in question. Expanding this list may cause a law meant to protect equally to widen the gap between men and women or lend legal legitimacy to discriminatory practices. Cf. Guy Mundlek, Are Anti-Discrimination Laws Doing Their Job? in Is The Law Important? A Series of Books in Memory of Haim Y. Zadok, 223, 228 (2010)).

4. This case illustrates the lack of overlap between the two laws and why a successful claim under the Equal Pay Act does not necessarily mean there is an automatic claim under the Equal Job Opportunities Act. While the different wage demands of the Petitioner and Steven Mor do not constitute a justification under Section 6(a) of the Equal Pay Act, it does not fall into the realm of wrongful discrimination under Section 2(a) of the Equal Job Opportunities Act, because the pay difference does not stem from the gender of the two workers, but from the different wage demands. I should also note that the Equal Job Opportunities Act requirement to prove causation makes it harder on the plaintiff, which is the advantage of the Equal Pay Act in this case.

Justice Amit

Justice N. Hendel

I agree with the impressive ruling and overall reasoning of my colleague, President D. Beinisch. I would like to strengthen the conclusion that the disparity in bargaining power among employees cannot justify the difference in pay, especially where the disparity is so significant. The radical feminist approach provides further support for our conclusion. This approach determines the status of women in the workplace based on their relative strength in a gender biased society. This approach does not focus solely on women who have made it to the top of the social ladder; it emphasizes the difficulty of all women, especially those far down from the top of the social or economic pyramid –.. According to this approach, the number of female CEOs and Knesset members may blind us, although not deliberately, from the more subtle forms of gender discrimination. As my colleague the President noted, due to the 35% difference in pay, the fact that the Petitioner was willing to work for a lower salary does not prove that she did not experience inequality. However, this fact reflects the relative bargaining positions of the Petitioner and the employer, and mainly the Petitioner’s bargaining position vis a vis other male employees. According to the radical feminist approach, the reason she requested a relatively low salary is a result of the social debasement of women with regards to their professional aspirations and stature in the labor market. Catherine MacKinnon, “Reflections on Sex Equality under Law,” 100 Yale L.J. 1281, 1298 (1991); see also Heidi Hartmann, Capitalism, Patriarchy, and Job Segregation by Sex, 1 Signs 137, 167 – 68 (1976)). As Prof. Catharine MacKinnon, one of the prominent advocates identified with the radical feminist movement, states:

In money economies, income means survival; its treasure and resources also contribute to freedom, human flourishing, enjoyment of life's possibilities. From a social standpoint, income also provides an index of relative social worth…

Without pay equity, sex equality means little in capitalist societies in an increasingly capitalist world. Catherine MacKinnon, Sex Equality 178 (2007).

In other words, income in market economies is equal to survival, freedom, personal prosperity and the ability to enjoy the range of possibilities that life offers. Without equal pay, gender equality loses its meaning in an increasing capitalistic world. For many of us, income is a measure of social status. Even those who disagree with this assertion will agree that job security and level of income are connected to and certainly affect human dignity.

Additionally, relative bargaining power not only highlights the differences between men and women, but also that of other protected classes in society.

In this case, it was proven that an employee, performing the same task as the Petitioner for the same employer, received a higher salary with no relevant justification. It seems that my colleague, the President, has adopted a balanced solution based on existing legislation. The Petitioner must prove that she was discriminated against “because of” her gender. Shifting the burden of proof onto the Respondent to establish that he did not take into account any wrongful considerations – in this case, gender – when deciding how much to compensate her, provides the employer with an “equal opportunity” to disprove the allegation. It is within the ability of the employer, in terms of his position and power, to show that he did not take into account any wrongful considerations when determining wages. In this case, the Respondent did not produce evidence proving its justification that it is the store’s policy to determine salaries based on the salary expectations of the employees. The Respondent, therefore, did not meet his burden of proof. In this sense, the law creates an overlap between the evidentiary standard and the substantive law under the Equal Job Opportunities Act. The burden shifting requirement pursuant to Section 9(a) of the Equal Job Opportunities Act fits well within the imbalance of power between the employee-claimant and the employer who must prove the absence of discrimination.

Justice Neal Hendel

Decided as per the opinion of President D. Beinisch (Ret.)

25 Iyyar 5772 (17 May 2012)

Full opinion:

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/11/580/017/n05/11017580.n05.pdf

Eliahu v. Government of Israel

Case/docket number:

HCJ 8035/07

Date Decided:

Wednesday, May 21, 2008

Decision Type:

Original

Topics:

Freedom of Expression

Eliahu v. Government of Israel.pdf

Discrimination

Abstract:

These petitions concern the Government’s general policy decision to reduce the number of non-Israelis employed in the ethnic restaurant industry. The Petitioners challenge a line of decisions reducing the number of permits for the employments of foreign cooks in ethnic and fusion restaurants, and later the requirement of a higher pay for the employee – which would reflect the expertise at the foundation of the restaurant’s wishes to employ that person – in order to secure a permit.

The High Court of Justice (in an opinion written by Justice Levy, with Justices Joubran and Elon joining) rejected the petitions and held as follows:

We are concerned with the issue of violating the freedom of occupation of an employer who is limited in employing foreign employees. The Petitioners’ primary claim objects to the restriction of employment from the economic aspect of the right to free occupation which includes the ability to pursue an occupation based on financial prospects of success. Those who can show that, due to a government restriction, they are no longer able to operate a profitable business, bear the burden to show that their freedom of occupation has been violated. The test ought to be objective and examine whether a reasonable business owner could continue to operate, as commonly acceptable, a business of that particular kind, despite the additional expenses resulting from the legal restrictions.

The economic aspect of the freedom of occupation goes beyond this right, as it involves financial interests of a party claiming to have been harmed. A business owner, even when unable to show that s/he was denied freedom of occupation, may have been harmed by the mere increase in business expenses. But even if the party claiming such harm was unable to meet the burden of proof, their matter might still be considered if instead they are able to show instead that a protected financial interest – even one of less weight than a basic constitutional right – is harmed. A protected interest is an issue that warrants shifting the burden to the state in order to show that the harm is lawful.

The evidence presented did not sufficiently lay the foundation for a violation of the right to free occupation, since the Government’s decisions do not eliminate employment of foreign employees, and the primary issue turns on the level of prospects of financial profitability in employing these employees under the new conditions, and detailed information as to the impact of the new policy was not presented. At this time, it is difficult to assess the impact of its implementation, and therefore the Petitioners have substantiated their conclusion as to a violation of their freedom of occupation. This is the case in regards to the question of the violation of the right to property as well. As for the issue of a harm to a protected financial interest, whose status is weaker than that of a constitutional right – there is no doubt that even were the Petitioners successful in continuing to operate their businesses under the new conditions, the policy will carry negative outcomes for their financial situation. The Petitioners do not have a guaranteed right to be permitted to employ workers for lower pay, but changing a policy that had been in place for years opens the necessary door to subjecting the decisions to the tests of a worthy purpose and of proportionality. Examining the decisions reveals they have a worthy purpose and that they are consistent with the requirements of the three proportionality tests. The Government’s policy was adopted after an extensive study of the issue and it is in line with its social and economical agenda and does not warrant judicial intervention. The State has demonstrated that at this stage the scales should tip in favor of its decisions, and has therefore met its burden to show that the infringements do not exceed the necessary. The claim for discrimination between employers, too, which is rooted in different rules that apply in each of the fields that rely on foreign employers, does not hold water at this time.

Voting Justices:

Levy, Edmond E.

Primary Author

majority opinion

Joubran, Salim

majority opinion

Elon, Yoseph

majority opinion

Full text of the opinion:

HCJ 8035/07

HCJ 8146/07

Petitioners in HCJ 8035/07:

1. Ronen Eliahu

2. Erez Hindi

3. Lemon Grass Tel Mond

4. City Thai Ltd.

5. Patai Lemon Grass Ramat Aviv Restaurant Ltd.

6. Romy Ron Ltd.

7. Honey and Cinnamon Lemon Grass Ltd.

8. Ginger – Lemon Grass Ltd.

9. Sheli veShel Michal Ltd.

10. Rafi Michaeli

11. Dror Kakon

12. I.S.R. Lemon Grass

13. Dov Swirsky

14. Glatt Peking Ltd.

15. Rafi levy

16. The Red Asian Restaurant (2003) Ltd.

Petitioners in HCJ 8146/07:

1. Israeli Ethnic Restaurant Association

2. Peking Restaurant, Lahak Debi Dining and Events Ltd.

3. Yakuza Sushi Roll Restaurant Ltd.

4. Korusin (Malha) Restaurant, Ginossar Ethnic Ltd.

5. Lychee – We Are Different Food Restaurant Ltd.

Respondents in HCJ 8035/07:

1. Government of Israel

2. Ministry of Industry, Trade and Employment

3. Director of the Support Unit in the Ministry of Industry, Trade and Employment

Respondents in HCJ 8146/07:

1. Government of Israel

2. Minister of Industry, Trade and Employment

3. Minister of the Interior

The Supreme Court sitting as the High Court of Justice

[23 January 2008]

Before Justices E.E. Levy, S. Joubran, Y. Elon

Petition for an Order Nisi

Israel Supreme Court cases cited:

[1] HCJ 5626/97 Lerner v. Director General of the Employment Service (1997) (unreported).

[2] HCJ 2836/98 Lerner v. Director General of the Employment Service. Minister of Labour and Welfare (1998) (unreported).

[3] HCJ 9647/02 Ben David v. Minister of the Interior (2003) (unreported).

[4] HCJ 3445/05 SushiMai Ltd. v. Ministry of Industry, Trade and Employment (2005) (unreported).

[5] CJ 5936/97 Lam v. Director General of the Ministry of Education, Culture and Sport [1999] IsrSC 53(4) 673.

[6] HCJ 9722/04 Polgat Jeans Ltd. v. Government of Israel (2006) (not yet reported).

[7] HCJ 3872/93 Mitral Ltd. v. Prime Minister [1993] IsrSC 57(5) 485.

[8] HCJ 9723/01 Levy v. Director of the Department of Industry and Services for Issuing Permits to Foreign Workers [2003] IsrSC 57(2) 87.

[9] CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [1995] IsrSc 49(4) 221.

[10] HCJ 4562/92 Zandberg v. Broadcasting Authority [1996] IsrSC 50(2) 793.

[11] HCJ 4947/03 Beer Sheba Municipality v. Government of Israel (2006) (not yet reported).

[12] HCJ 4593/05 United Mizrahi Bank v. Prime Minister (2006) (not yet reported).

[13] HCJ 956/06 Association of Banks in Israel v. Minister of Communications (2007) (not yet reported).

[14] HCJ 5496/97 Mardi v. Minister of Agriculture [2001] IsrSC 55(4) 540.

[15] CA 4912/91 Talmi v. State of Israel [1993] IsrSC 48(1) 581.

[16] LCA 7678/98 Benefits Officer v. Doctori (2005) (not yet reported).

[15] HCJ 4541/94 Miller v. Minister of Defense [1995] IsrSC 49(4) 94.

[16] HCJ 3648/97 Stamka v. Minister of the Interior [1999] IsrSC 53(2) 728.

[17] CA 10078/03 Shatil v. State of Israel (2007) (not yet reported).

[18] HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1.

[19] HCJ 4638/07 Al-Aqsa Al-Mubarak Co. Ltd. v. Israel Electrical Corp. (2007) (not yet reported).

[20] CA Angel v. Bodesky [1992] IsrSC 46(4) 434.

[21] CA 1639/01 Kibbutz Ma'ayan Zvi v. Krishov [2004] IsrSC 58(5) 215.

[22] HCJ 366/03 Commitment to Peace and Social Justice Association v. Minister of Finance (2005) (not yet reported).

[23] HCJ 4769/90 Zidane v. Minister of Employment and Welfare [1993] IsrSC 47(2) 147.

[24] CA 524/98 State of Israel v. Zion Insurance Co. Ltd. [1998] IsrSC 52(2) 145.

[25] HCJ 6962/03 Media Most Co. Ltd. v. Cable and Satellite Broadcasting Council [2004] IsrSC 59(3) 14.

[26] HCJ 4542/02 "Kav La'Oved" Association v. State of Israel (2006) (not yet reported).

[27] AAA 1347/07 Gorong v. Minister of the Interior (2007) (not yet reported).

[28] HCJ 10843/04 Helpline for Foreign Workers v. State of Israel (2007) (not yet reported).

For the petitioners in HCJ 8035/07 – D. Holz-Leczner

For the petitioners in HCJ 8146/07 – R. Jarac; S. Luria Hai-Am

For the respondents – M. Zuk

JUDGMENT

Justice E.E. Levy

1. The petitions before us concern the decision in principle of the Government to reduce the number of non-Israeli employees in the ethnic restaurant branch (various types of Asian restaurants). This policy was formulated more than a decade ago, and it has been the issue in several petitions filed in this Court (HCJ 5626/97 Lerner v. Director General of the Employment Service [1]; HCJ 2836/98 Lerner v. Director General of the Employment Service, Minister of Labor and Welfare [2]; HCJ 9647/02 Ben David v. Minister of the Interior [3]; HCJ 3445/05 SushiMai Ltd. v. Ministry of Industry, Trade and Employment [4]). At present, when the Government is taking concrete steps to implement the policy, it has once again been laid on the doorstep of this Court.

2. The petitioners, the owners of dining establishments, object to a string of decisions that were made between the years 2004-2007 in which, at the first stage, the number of permits for employing foreign chefs in ethnic and mixed restaurants was reduced, and later, the granting of a permit became conditional upon payment of a high wage to the worker, reflecting the expertise for which the restaurant sought to employ him. In 2009, it was decided that in this branch, it will be permitted to employ only foreign experts, i.e. workers with special skills, whose monthly wage will not be less than twice the national average wage – a sum which today is equal to 15,000 NIS (Government decision no. 2445 of 15 August 2004; no. 3021 of 6 January 2005; no. 4099 of 9 August 2005; no. 4617 of 29 December 2005; no. 446 of 12 September 2006 and no. 1205 of 15 February 2007).

Needless to say, this wage rate is several times the rate currently paid to migrant workers in this branch. It is no wonder, therefore, that these government decisions outraged the restaurateurs, and they were joined in their protest by others, including the Minister of Tourism and senior officials in his office, the Mayor of Jerusalem, the Chairman of the Knesset Finance Committee, members of the Knesset Economic Committee and other public officials. They all explained how much damage these decisions would cause, not only to the ethnic restaurant branch but to the entire Israeli economy. When their efforts failed and the Government persisted in its position, the petitioners sought the intervention of this Court, asking that we direct that the previously prevailing situation be restored, at least until they are able to recruit Israeli workers to replace those who are presently employed.

The Petitions

3. The petitioners estimate that the number of migrant workers required for the approximately 250 oriental restaurants operating in Israel today is 1,400. Without these workers, so it is claimed, these restaurants cannot exist: these workers are at the heart of the restaurants and they alone have the necessary expertise, as it were from the womb, in the preparation of the food that is served. The petitioners add that the government decisions inflict a mortal wound on the restaurateurs' freedom of occupation, and that although all agree that increasing the rate of employment of Israelis is a worthy cause, the measures that have been adopted to advance this cause are not proportionate. First, there is no connection between the cessation of employment of migrant workers and opening up of the branch to Israelis. Significant efforts have been invested by the Ethnic Restaurant Association, in conjunction with the Ministry of Industry, Trade and Employment, to train Israeli workers in the art of oriental cooking, but they have all been in vain. Israelis, even those who are involved in the culinary field, refuse to touch this work. The petitioners do, it is true, mention that in recent months, the Ministry of Industry – which is responsible for the training of replacement personnel – has been running a trial program to train some one hundred Israelis to work in the branch, but it will be many months before this program bears fruit, if at all.

The petitioners further argue that the ethnic restaurants in Israel provide a livelihood for thousands of local workers, including suppliers, service providers, agricultural workers and food manufacturers, and they make a real contribution to the tourism sector, which provides employment for many more Israelis. According to an expert opinion written by financial consultants and attached to petition HCJ 8146/07, in recent years the number of Israelis employed in the ethnic restaurant branch has increased at a significantly higher rate than the average rate of growth in other branches of the economy (P/26). Collapse of the branch as a result of government decisions will therefore entail damage that greatly outweighs the benefit gained by reducing the number of migrant workers. This is even more the case in view of the fact that the non-Israeli workers in the branch constitute only a minute proportion – no more than one percent – of all the foreign workers in the economy; moreover, in other branches the Government – surprisingly – has increased the numbers due to a shortage of workers. Even if the branch is not destroyed, the petitioners are concerned that the financial burden on their businesses will lead to a price increase and harm the population at large, and particularly the weak sectors, who will no longer be able to afford to eat in those restaurants. Furthermore, they argue, the ability of the public to enjoy the varied food culture available at present, in which the oriental restaurants play an ever-growing part, will be diminished.

The third argument of the petitioners is that it is possible to achieve the same objective by less harmful means, for example, by requiring them to employ a given number of Israelis for every foreign worker. In concrete terms, it was argued that the government edicts are arbitrary with respect both to the number of permits allocated and to the rate of pay that was fixed, and they were not preceded by consultations or discussions with people in the restaurant business. Why a non-Israeli chef should earn twice the average national wage is a puzzle to the petitioners. In fixing this wage, they complain, the Government did not draw a distinction between experts in the different branches of industry and services. The result, devoid of logic in their view, is that a foreign expert in the culinary field will earn an identical wage to that of his counterparts in the fields of medicine or engineering for example, in a manner that deviates significantly from the norm in the restaurant business.

The petitioners supported their petitions with the reports of several investigative committees that were set up by governments over the past decade; these committees recognized the special nature of the branch of ethnic restaurants and the importance of distinguishing it from other branches in which foreign workers are employed (Yankowitz Committee Report of 10 March 1996; Ben-Zvi Committee Report of 14 January 1998; Buchris Committee Report of 16 July 2001; Tal Committee Report of October 2002). Their position is also supported by the expert opinion of chef Israel Aharoni, which was attached to the petition in HCJ 8146/07, and which explained the complexity of the training required in oriental cookery and the importance of the continued employment of foreign chefs, even if Israelis learn the trade, due to the special nature of the ethnic kitchen and the working methods employed therein. Finally, the petitioners attached expert opinions from accountants who wrote that setting the wage of expert workers at a rate that is twice the average national wage will cause financial losses to a number of restaurants (P/24, P/25).

Discussion

4. "Freedom of occupation is the freedom to employ or not to employ", stated Justice D. Dorner in CJ 5936/97 Lam v. Director General of the Ministry of Education, Culture and Sport [5] (at p. 682), following Aharon Barak, who wrote at greater length: "A law that imposes an obligation to employ violates freedom of occupation. A law that requires not to employ violates freedom of occupation" (Interpretation of Law 3, 597 (1994). See also Ran Hirschl, "Israel's 'Constitutional Revolution': The Legal Interpretation of Entrenched Civil Liberties in an Emerging Neo-Liberal Economic Order", 46 Am. J. Comp. L. 427, 440 (1998)). Nevertheless, in HCJ 9722/04 Polgat Jeans Ltd. v. Government of Israel [6], this Court chose not to decide on the question of violation of the freedom of occupation of an employer who is restricted in the employment of foreign workers (per Justice A. Procaccia, para. 21).

This is the basic issue in the case at hand, and in providing a normative answer to it, two aspects of restriction of employment must be considered. The first is that aspect within the parameters of which the employment of foreign workers whose knowledge or skills are vital for the operation of the businesses in Israel is prohibited – whether absolutely or by a substantial reduction of the number of permits issued. These workers, as such, are not different from any other resource that is vital for the business, and the restriction of which threatens to negate the employer's ability to operate it (cf. HCJ 3872/93 Mitral Ltd.. v. Prime Minister [7], at p. 505). And what is the restriction of a businessman's ability to obtain the resources necessary for operating his business, if not a violation of his freedom of occupation?

'The policy of employment of foreign workers, with all the restrictions that apply by virtue thereof, must take into consideration, inter alia, the basic right of a person to freedom of occupation, and the possible violation of this right where his business requires the employment of foreign workers for whom it is difficult, or impossible, to find replacements amongst local workers …. In the implementation of its general policy, the competent authority ought to consider, inter alia, the occupational requirement of the individual, [and] the extent to which his business is liable to suffer if he is not permitted to employ a foreign worker' (per Justice A. Procaccia in HCJ 9723/01 Levy v. Director of the Department of Industry and Services for Issuing Permits to Foreign Workers [8], at pp. 93, 95).

Another dimension of the restriction of employment draws upon the economic aspect of the right to freedom of employment. This right, where it involves a commercial enterprise in which a person wishes to engage, also relates to the ability to engage in it under conditions of economic profitability. A person who proves that he is no longer able to run a profitable business due to a governmental restriction has lifted the burden of proving that his freedom of occupation has been violated. The criterion ought to be objective, and it should examine whether a reasonable business owner could continue operating a business of a particular type at an acceptable level, despite the additional costs incurred as a result of the legal restriction. Relevant here are rules that restrict the employer's freedom of occupation in that they fix the wage conditions applicable to his workers, including those wages that raise his wage bill in a manner that forces him to reduce the number of workers. Indeed, "the question of whether the decision of the authority constitutes a violation of freedom of occupation must be examined materially and not formally. Freedom of occupation is [also] violated when the decision of the authorities indirectly affects the realization of freedom of occupation in practice" (Lam v. Director General of the Ministry of Education, Culture and Sport [5], at pp. 681, 693). At the same time, however, we will recall that the State is not under an obligation to create conditions of economic profitability, but only to refrain from actions that counteract such conditions.

Harming the Economic Interest of the Entrepreneur

5. The economic aspect of freedom of occupation extends even beyond the bounds of this right, for it involves financial interests of the person who claims to have been injured. The owner of a business, even if he is unable to prove that his freedom of occupation has been denied, may be harmed by the very fact that his business has become more expensive. What shall we call such harm? Does it amount to the restriction of a constitutional right to property, or is it positioned at a lower normative level? Does this additional cost, which in some aspects resembles costs that are incurred by virtue of the tax laws, bite into the property of the businessman? In the overall accounting, does it take something away from him? And to whom does this additional sum that must be paid "belong"? These are difficult and complicated questions. They involve different conceptions of the right to property. They confront a nuclear concept of the term "property" with a wider understanding of it. They raise the question of whether regulatory aspects of the actions of an administrative authority, upon the existence of which the ability of the businessman to realize his economic interest is largely dependent, violate his constitutional right. They deal with the relationship between the owner of a business and his environment (Charles A. Reich, "The New Property", 73 Yale L.J. 733, 772 (1964)); Yoseph M. Edrey, "Constitutional and Normative Obstacles for the New Tax Legislation" 8 Taxes vol. 6 (1994) a20, 25; Joshua Weisman, "Constitutional Protection of Property: 42 Hapraklit 258, 267 (1995); Aharon Yoran, "The Extent of Constitutional Protection of Property and Judicial Intervention in Economic Legislation" 28 Mishpatim 443, 447 (1997); Eyal Gross, "Property Rights as Constitutional Rights and Basic Law: Human Dignity and Liberty" 21 Iyunei Mishpat 405, 410, 438 (1998); Gregory S. Alexander, "The Social-Obligation Norm in American Property Law", 94(4) Cornell L. Rev. 745 (May, 2009) and refs. therein).

Not for nothing did this Court refrain from ruling on issues such as these, when they arose in the past. "Does protection of property", asked Justice I. Zamir rhetorically, "also extend to restrictions on employment contracts, such as a provision concerning the minimum wage?" (CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [9], at p. 470. See also President A. Barak, ibid. at p. 431; HCJ 4562/92 Zandberg v. Broadcasting Authority [10], at p. 816; HCJ 4947/03 Beer Sheba Municipality v. Government of Israel [11], per Justice D. Beinisch, at paras. 7-8; HCJ 4593/05 United Mizrahi Bank v. Prime Minister [12], per President A. Barak, at para. 9); HCJ 956/06 Association of Banks in Israel v. Minister of Communications [13], per Justice E. Hayut, at para. 7). Indeed, the question of the damage to property and the extent of its protection requires extensive examination, and necessitates in-depth consideration of legal questions, both theoretical and practical, that are not simple.

However, even if the allegedly injured party did not succeed in lifting the burden of proof, the matter will not be at an end if he showed, instead, that a protected legal interest of his – even one of lesser import than a constitutional basic right – was violated. When I say "protected interest" I am referring to an interest that would justify the transfer of the burden of proof onto the shoulders of the State to show that the violation was lawful. An anchoring link is required, which would change a "regular" interest into one that gives rise to a claim vis-à-vis the authority. This link could lie, inter alia, in a statutory act that confers a right – one that does not enjoy constitutional status – by means of an administrative action in which the person's interest is guaranteed, or through a person's reliance on existing government policy or legitimate expectations in light thereof. In the words of Justice Zamir:

'Protection is generally granted to vested rights. In certain circumstances, however, the interest of reliance or the need to fulfill legitimate expectations also justify the granting of protection to an interest that does not amount to a right in the accepted sense or to an interest that has not yet crystallized into such a right' (HCJ 5496/97 Mardi v. Minister of Agriculture [14], at p. 552. See also CA 4912/91 Talmi v. State of Israel [15], at p. 625; LCA 7678/98 Benefits Officer v. Doctori [16], per Justice A. Procaccia, at para. 20).

Judicial Review

6. When a governmental action violates a right or a protected interest, recourse to administrative law to examine the constitutionality of that action is justified. This involves an examination of the purpose of the action and the extent of the harm that it causes, and use is made of tools that originate in the criteria of the limitation clause in the Basic Laws (HCJ 4541/94 Miller v. Minister of Defense [15], at p. 138). These tools render the review of administrative actions more precise, and facilitate the judicial decision-making process (HCJ 3648/97 Stamka v. Minister of the Interior [16], at p. 777; CA 10078/03 Shatil v. State of Israel [17], at para. 22 of my judgment). Their efficacy, as well as the need to invest the process of judicial review in all its aspects of the administrative enterprise with a systematic and consistent character, justify their application both when a constitutional right is affected, and when a right or a protected interest which have a lesser normative status are affected (HCJ 5016/96 Horev v. Minister of Transport [18], at p. 43; HCJ 4638/07 Al-Aqsa Al-Mubarak Co. Ltd. v. Israel Electrical Corp. [19], per Justice U. Fogelman, at para. 8).

Even though identical tools are used for the examination, the distinction between violating a constitutional right and a value of a lower status finds expression in the contents that are revealed by application of these tools. I am referring mainly to the third criterion of proportionality, i.e. the "narrow" criterion, that places on one side of the scales the benefit of the administrative action and on the other, the damage, in all its aspects. Clearly, where the right that has been violated is a constitutional right, the other side – counterbalancing the violation – must be more heavily weighted.

Assessment of the harm and determination of constitutionality require both a factual and a normative basis. We refer to the facts particularly at the stage of identifying the violation, in determining its magnitude and in examining proportionality. Most of the factual issues can only be resolved on the basis of information submitted by the parties to the court and proved in their evidence, since the judicial body is generally lacking independent tools with which to establish facts (CA Angel v. Bodesky [20], at p. 437; CA 1639/01 Kibbutz Ma'ayan Zvi v. Krishov [21], at p. 273; Barak supra, at p. 479). At first, the burden of submitting the information is borne by the petitioner, who is claiming a violation of a right. If he is successful, the burden moves onto the shoulders of the administrative authority, which must show that the violation is lawful (United Mizrahi Bank Ltd. v. Migdal Cooperative Village [9], at p. 428, per President Barak; HCJ 366/03 Commitment to Peace and Social Justice Association v. Minister of Finance [22], paras. 10, 18 of my judgment). The factual examination need not necessarily reflect hindsight. A well-founded expectation that a factual development will eventuate is sufficient. However, the person making a claim about a situation that has not yet occurred bears the burden, which at times is not light, of showing a real chance that his expectations will be realized.

7. The normative aspect expresses itself primarily in the requirement of a proper purpose for the administrative act and in the test of "narrow proportionality" mentioned above. In investigating this aspect we must follow the dictates of logic and morality and the public consensus; we must identify the fundamental elements of the regime and of the prevailing social order; and we must locate and develop concepts of the good on which they are based. The advantage of the High Court of Justice here lies in the fact that it is an external body that is not involved in the administrative act; in its freedom from the political partisanship which is dominated primarily by passing trends; in the analytical tools which the law makes available to it, and in the special role reserved for it in advancing the basic principles of justice and morality, mandated by its name and by the judicial tradition that developed in the court from the early days of the State. At the same time, as a body that is scrupulous in maintaining the separation of powers in the substantive sense, the Court will take care not to put itself in the shoes of the administrative authority in determining appropriate policy and implementing it, even if it believes that it would be better to adopt a different policy. "The application of powers vested in the court", wrote President M. Shamgar, "should be properly exercised in a way that refrains from turning the Court into a body that actively shapes the economic policy that it deems to be correct or preferable" (United Mizrahi Bank Ltd. v. Migdal Cooperative Village [9], at p. 331 [emphasis in original]; see also HCJ 4769/90 Zidane v. Minister of Employment and Welfare [23], at p. 172; CA 524/98 State of Israel v. Zion Insurance Co. Ltd. [24], at p. 151; HCJ 6962/03 Media Most Co. Ltd. v. Cable and Satellite Broadcasting Council [25], at p. 30). Indeed, the court does not, and does not purport to engage in determining practical policy. The point of departure for judicial review is that insofar as the court is asked to deal with questions of policy, it will refrain from doing so. As stated in the specific context of the issue with which we are concerned:

'Tackling the issue of foreign workers is complex. It involves taking into consideration a wide range of interests. It involves taking into consideration the foreign workers themselves, their employers, and the needs of the Israeli economy and Israeli society as a whole. It gives rise to difficult professional, economic and social questions that require responses on different planes. In these circumstances, the intervention of the court in the selection of measures by the administrative authority for dealing with the issue confronting it will be narrow and limited' (Polgat Jeans Ltd. v. Government of Israel [6], at para. 14).

Armed with all the above, I am now able to examine the arrangement that is the subject of this case.

Employment of Chefs from Overseas in the Field of Ethnic Restaurants

8. The phenomenon of migrant workers has a significant impact on the Israeli economy and on the employment market in general. Even those who support the phenomenon cannot deny the complex problems to which it gives rise, some of which are interconnected. Several of them have been dealt with in past judgments of this court (HCJ 4542/02 "Kav La'Oved" Association v. State of Israel [26]; AAA 1347/07 Gorong v. Minister of the Interior [27]; HCJ 10843/04 Helpline for Foreign Workers v. State of Israel [28]), and it will suffice to mention the detriment to the employment of Israeli workers, the rate of pay that is dragged downwards due to the effect of cheap labor, the negative treatment of the "foreign" worker – the few legal protections result in consistently decreasing his marketability – and the problems of the existence of a large sector that is not perceived to be an integral part of Israeli society, although it has lived and functioned within the society for many years. After a long period in which governments in Israel ignored these problems, a policy for dealing with them began to take shape. There will be those who argue with the degree of success of this policy, with the suitability of the measures that are adopted within its framework or with the conceptions on which it is based. But it would seem that it is no longer possible to avoid the conclusion that without regulatory intervention, no response will be found for the whole set of problems as described, in that market forces alone are inadequate to provide a solution, as reality has proved time after time. In order for this policy to succeed, it must take a comprehensive view of the issue. This is no simple task that has been laid on the shoulders of the State, in view of the complexity of the problems, the myriad interests and interested parties that are involved, and the direct and indirect effects of any policy that will be adopted on the economy, on society and on the individual.

9. Do the decisions that are the subject of this proceeding have an inordinately damaging effect on the protected interests of the individual, i.e. of the restaurateur who wishes to employ foreign chefs? We are concerned, first and foremost, with the factual question. The petitioners laid on our doorstep – as I mentioned above – evidence of a violation of their freedom of employment – a violation which according to them has already occurred and will become even more severe in future. In my view, however, the material that was submitted does not constitute sufficient grounds for the existence of a violation of this constitutional right, in any of the aspects presented above.

First, it is clear that the government decisions do not prevent the restaurateurs from employing foreign workers. Permits will be issued, even if their number will be lower than in the past and even if the cost involved in obtaining them is higher. I have not found in the petitions, nor even in the oral pleadings, a claim that the number of permits for the employment of foreign experts in each restaurant is not in keeping with the required number of workers. The petitioners do not argue that even were they prepared to accept the pecuniary decree, the number of permits offered to them would not meet their employment needs. Indeed, the Government does not wish to deny the restaurateurs the ability to benefit from the particular characteristics of those workers – which give them, at least at present, an advantage over the employment of Israelis, and I am referring to the knowledge, the skills, the work ethic and even to appearance and language. On the contrary, in acknowledging that these workers have special characteristics that render them sought after in the local restaurant sector, the Government seeks to entrench their position such that on the one hand, a person who does not meet these special criteria will not be employed, and on the other, those who are employed will be suitably recompensed. This policy, so it has already been ruled, attributes suitable weight to the interest of the employer in allocating permits for the employment of foreign workers (Polgat Jeans Ltd. v. Government of Israel [6], at para. 15).

The crux of the matter is, therefore, the economic profitability of employing those workers under the new conditions, and in practice - the relationship between the commercial advantages inherent in their employment and the cost to the employer. There is no doubt that setting a wage rate at twice the national average greatly increases the latter component. But will the effect on the benefit that the employment of those workers brings to the business be so drastic as to negate the profitability of the enterprise? I cannot deduce this from the information that was submitted by the petitioners. The expert opinions relating specifically to a limited number of restaurants – four out of two hundred and fifty (P/24) – which, it was argued, would face financial loss, do not suffice, nor does the general statement that this would be the fate of "many other restaurants" (P/25). What is required is specific data on the effect of the new policy on this branch, and the petitioners did not provide this. More importantly, the expert opinions that were submitted relate to the existing system of management of the restaurants. Nothing in the data that was presented indicates that it is not possible to operate an ethnic restaurant successfully, in a reasonable manner, even with the new rates of pay.

At the present time it is difficult to say whether implementation of the new policy will deprive the ethnic restaurants in Israel of their ability to exist as profitable enterprises or affect their special cultural character, or whether the petitioners will succeed in finding a solution for the problems that have arisen, particularly if the State provides some support. The unknowns are numerous. Is the wage that is currently paid to non-Israeli chefs reflective of their true market power? Is the price level at the ethnic restaurants, and their number, in keeping with the demand for the service that they offer? Will the new policy, along with the effort that is being invested in the training of Israelis in the art of ethnic cookery, lead to an opening up of the branch to Israeli labor? Will the owners succeed in adapting themselves to the new regulatory policy? These and other questions require solutions in real life. I have not been offered even the beginning of a satisfactory answer to them, and therefore I cannot establish that the petitioners laid the grounds for a conclusion concerning a violation of their freedom of employment. The same applies with respect to the question of a violation of a property right, which was not even mentioned in the petitioners' pleadings. They did not base their petitions on this issue, and did not submit evidence to prove it. What they omitted, the court will not complete in their stead.

10. The foundation has not, therefore, been laid for determining that any of the constitutional rights of the petitioners has been violated. Things are different with respect to the question of damage to a protected economic interest, the status of which is inferior to that of a constitutional right. There is no doubt that even if the petitioners succeed in keeping their businesses operating under the new conditions, the direct effect of the new policy – the need to pay a wage that is higher than the norm and an increase in costs – will worsen their financial situation. Indeed, the petitioners have no vested right to be permitted to employ workers at low wages, but a change in the policy that prevailed for many years, in the framework of which the wages of foreign workers were not dealt with, provides the required opening for putting the decisions to the tests of proper purpose and proportionality.

I have already discussed the proper nature of the purpose, and we are therefore left with the question of proportionality. In my view, the State succeeded in showing that its decisions were compatible with the requirements of all three tests of proportionality. First, at the present time and as long as reality has not proved otherwise, there is no basis for challenging the assumption concerning the existence of a rational connection between the policy that is implemented and the purpose that the government wishes to achieve. Support for the State position can be found not only in the dictates of common sense, but also in the data that was submitted by learned Counsel for the State, Adv. M. Zuk, which relates to what is happening in other branches in which foreign workers are employed. The data indicates a clear connection between the change in the rate of employment of non-Israeli workers, and the change in the number of Israeli workers employed in the agricultural sector (para. 56 in the State's response) and in the construction sector (para. 55). In the latter sector, the results of the government policy to limit the dimensions of employment migration, which led to a significant increase in the number of Israelis who were employed, was demonstrated (ibid.). The argument of the petitioners concerning the exclusive characteristics of the restaurant business is not devoid of logic, but they will have to back it up with factual data, which at present they do not have.

11. On the matter of the alternative measure, I will mention again the combined aims of the government policy: to increase the number of Israelis employed; to narrow the gap between the value of labor of the employee – Israeli and non-Israeli – and between the rate of pay he receives, and to reduce the number of foreign workers who are not essential to the employer. I find it difficult to envisage any alternative to the solution adopted by the State that could achieve these aims. The petitioners' proposal to employ a certain number of Israelis per each foreign worker does not meet the requirement, since it would appear that a fundamental element in achieving those aims is raising the status of the said field of employment. In these circumstances, the foreign workers would continue to be employed at low rates of pay, similarly low pay would be offered to Israelis, and the latter will continue to shun this field of employment. As for the rate of pay that was set, it would appear that any rate that was set would have been arbitrary to some extent, for in the nature of such things it is difficult to quantify precisely the value of the employment of foreign experts in each of the restaurants, as it is in relation to each of the other branches of labor. The main thing, in my view, is that the rate which is set is acceptable and not obviously excessive. Finally, I will say that the new arrangement has been implemented gradually, and it has not struck the petitioners like a thunderbolt out of the blue. In this way, undoubtedly, the detrimental effect on them has been reduced in a manner befitting the rationale underlying the second criterion of proportionality.

12. As for the balance of benefit: here, too, the petitioners are hindered by the absence of factual data which could indicate the extent of anticipated damage in all the areas that they claim. At present, the basis has not been established for the claim whereby the policy that has been adopted will reduce the number of Israelis employed, because it will affect the leisure culture of the public, harm the tourist industry or widen the gap between the different classes in Israel. All that has been placed on the side of the drawbacks is the added costs to the restaurateurs – an economic interest which prima facie, and from a normative aspect, does not counterbalance the potential benefit in realizing the government aims. The balance that was struck is not without foundation. It is not unreasonable. Its source does not lie in some governmental caprice, but rather, in policy that was formulated after extensive investigation of the subject, and which is compatible with the economic and social agenda of the Government. It does not, therefore, warrant judicial intervention. How the balance of benefit will appear with the passage of time and as the results of the selected process become clear, only time will tell. At the present point in time, the State has succeeded, in my opinion, in showing that this balance tilts in favor of its decisions, and with this it has fulfilled its obligation to demonstrate that the harm caused by these decisions does not exceed that which is required.

Damage to Other Protected Values

13. I also find the claim of discrimination between employers, which is based on the different rules governing each of the branches requiring foreign workers, to be unsubstantiated at present. This is a dual-pronged argument: first, that the policy of reducing the number of permits was not implemented in relation to other occupations, i.e. a similar norm should have been instituted not only in relation to restaurants but in all the branches that avail themselves of foreign workers; secondly, the determination in relation to the wage that must be paid is not sufficiently sensitive to the special characteristics of the branch of ethnic restaurants, which is to say that the branches should have been differentiated. The reason for dismissing the claim of discrimination, in both its aspects, does not lie in this apparent contradiction, but in arguments touching upon the substance of the matter.

First, in relation to the number of permits: It has already been ruled that each branch in the economy has its own needs, and each branch has a policy befitting its own context.

'Policy relating to branches is directly influenced by the needs of the branch for personnel of different types, and it changes from branch to branch in accordance with the structure, the requirements and the particular problems of each. This is a matter of different arrangements that are engendered by different requirements, and this does not give rise to a claim of discrimination' (Polgat Jeans Ltd. v. Government of Israel [6], at para. 17).

Accordingly, it is possible to adopt a policy that distinguishes between the different branches on the basis of the degree of necessity of employing non-Israeli workers. In the case before us, the Government decided that in the industrial and services sectors, insofar as there is a need for employing non-Israelis, it is experts that are required. These, as I have already ruled, are available to the restaurateurs, as long as they fulfill the wage requirements.

As for the rate of pay: the argument of the petitioners is that "it is not possible to compare an expert oceanographer with an expert heart surgeon, architect, builder or expert ethnic chef" (para. 32 in HCJ 8035/07), which prima facie seems to be a seductive argument, but which in effect is worthless. It must be recalled that the government decisions are not aimed at fixing a unified wage rate for immigrant workers. Rather, they seek to set a minimum level below which employment of a non-Israeli will not be permitted, thus realizing the principle that requires that there be an advantage to hiring a foreign worker, other than his willingness to work for a low wage. In order for the argument concerning discrimination to succeed, the petitioners would have had to show that in other branches, such as those specified above, the wage rate that was fixed was not effective in the realization of this principle. Not only did the petitioners not do so – once again the factual aspect of their petition was deficient – but it seems that in most of the occupations to which the argument relates, that principle is anyway realized by virtue of the special skills of the workers, to the extent that there is no longer a need to guarantee it by setting a particular wage rate. Justice Procaccia discussed this as well, writing as follows:

'In the industrial sector, the arrangement for issuing permits for the employment of foreign workers with special expertise is built on high wages. In the fields of agriculture and construction, the arrangement is built on the employment of workers with regular skills. This difference reflects on the level of wages paid to the workers' (Polgat Jeans Ltd. v. Government of Israel [6], at para. 17).

At the same time, I will emphasize what seems to me to be obvious, i.e. that the declarations of the State concerning the common normative basis for its policy in each of the branches that have recourse to migrant workers, cannot remain on paper alone. Wherever the State encounters difficulty in standing by its word and realizing the aims that served as its beacon in this matter – and I need only mention the discussion in the abovementioned case of Helpline for Foreign Workers v. State of Israel [28] – it will have difficulty in remaining convincing about its proper management of the whole issue.

14. If I saw fit to dwell further on any of the arguments of the petitioners, it would be on the matter of the right of pleading, or what they call the "duty to consult" prior to the said decisions being taken. As the petitioners themselves demonstrated, the formation of the present policy was preceded by a long process of investigation throughout which – as transpires from the appendices to the petitions – the petitioners expressed their position openly, by means of a serious lobby of public figures, with appearances in committees charged with the subject and in letters that were sent to the competent bodies. In these circumstances, there is no doubt that their position did not remain unheard, and it is as well-known as it need be to the decision-makers. Thus the purpose underlying the right to plead has been realized.

I do not make light of the petitioners' concerns. It is natural that a person looks out for his own interests. It is also natural that the owner of a business strives to maximize his profits. But the Government – with a wide perspective – sought to provide a response to problems that extend beyond the particular concern of the petitioners, and the latter have not, as yet, succeeded in showing that they cannot adapt themselves to this policy, or that its disadvantages, overall, outweigh its advantages. The burden of proof required for establishing grounds for judicial intervention has therefore not been lifted.

For this reason, I propose to my colleagues that we deny the petitions and cancel the interim order that was issued. I further propose that we obligate the petitioners, in each of the petitions, to pay the respondents costs in the amount of 20,000 NIS.

Justice S. Joubran

I agree.

Justice Y. Elon

I agree.

Decided as per the judgment of Justice E. E. Levy.

16 Iyyar 5768

21 May 2008

Full opinion:

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/07/350/080/o04/07080350.o04.pdf

El-Al Israel Airlines v. Danielowitz

Case/docket number:

HCJ 721/94

Date Decided:

Wednesday, November 30, 1994

Decision Type:

Original

Topics:

Abstract:

Facts: The first respondent, who is employed by El-Al as a flight attendant, has a stable relationship with another man. Under a collective agreement, El-Al gives every permanent employee a free aeroplane ticket, every year, for that employee and his/her spouse (husband or wife). Under a collective arrangement, a free ticket is also given to a companion recognized publicly as the employee’s husband/wife. The first respondent asked El-Al to give him a free ticket for his companion, but his request was denied.

Held: (Majority opinion — Vice-President A. Barak, Justice D. Dorner) Not giving the respondent a free ticket for his same-sex companion amounted to discrimination, since a distinction on the basis of the difference between a heterosexual and a homosexual relationship is unjustified in the context of employee benefits.

(Minority opinion — Justice Y. Kedmi) Linguistically, only a heterosexual couple can be called a ‘couple’; the concept of the ‘couple’ linguistically only applies to an union of male and female that can, conceptually, have children. Therefore a distinction between a same-sex companion and an opposite-sex companion is a distinction between persons who are fundamentally unequal, and this does not amount to discrimination.

Voting Justices:

El-Al Israel Airlines v. Danielowitz.pdf

Primary Author

majority opinion

Dorner, Dalia

Author

concurrence

Kedmi, Yaakov

Author

dissent

Full text of the opinion:

HCJ 721/94

El-Al Israel Airlines Ltd

1. Jonathan Danielowitz

2. National Labour Court

The Supreme Court sitting as the High Court of Justice

[30 November 1994]

Before Vice-President A. Barak and Justices Y. Kedmi, D. Dorner

Petition to the Supreme Court sitting as the High Court of Justice.

Petition denied, by majority opinion (Vice-President M. Shamgar and Justice D. Dorner), Justice Y. Kedmi dissenting.

Legislation cited:

Basic Law: Human Dignity and Liberty, 5752-1992, ss. 7, 8.

Contracts (General Part) Law, 5733-1973, ss. 14, 31.

Criminal Law Ordinance, 1936, s. 152(2).

Employment Service Law, 5719-1959, s. 42.

Equal Employment Opportunities Law, 5748-1988, ss. 2, 2(a) 2(c).

Equal Employment Opportunities Law (Amendment), 5752-1992.

Equal Remuneration for Female and Male Employees Law, 5724-1964.

Equal Retirement Age for Female and Male Employees Law, 5747-1987.

Government Corporations Law, 5735-1975, s. 18A.

National Insurance Law [Consolidated Version], 5728-1968, s. 8.

Penal Law, 5737-1977, s. 351(3).

Penal Law (Amendment no. 22), 5748-1988.

Women’s Equal Rights Law, 5711-1951, s. 1.

Israeli Supreme Court cases cited:

[1] FH 13/84 Levy v. Chairman of Knesset Finance Committee [1987] IsrSC 41(4) 291.

[2] HCJ 98/69 Bergman v. Minister of Finance [1969] IsrSC 23(1) 693; IsrSJ 8 13.

[3] EA 2/88 Ben-Shalom v. Central Elections Committee for Twelfth Knesset [1989] IsrSC 43(4) 221.

[4] HCJ 114/78 Burkan v. Minister of Finance [1978] IsrSC 32(2) 800.

[5] HCJ 453/94 Israel Women’s Network v. Government of Israel [1994] IsrSC 48(5) 501; [1992-4] IsrLR 150.

[6] HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [1988] IsrSC 42(2) 309.

[7] HCJ 104/87 Nevo v. National Labour Court [1990] IsrSC 44(4) 749; IsrSJ 10 136.

[8] HCJ 507/81 Abu Hatzira MK v. Attorney-General [1981] IsrSC 35(4) 561.

[9] HCJ 301/63 Streit v. Chief Rabbi [1964] IsrSC 18(1) 598.

[10] HCJ 693/91 Efrat v. Director of Population Registry at Ministry of Interior [1993] IsrSC 47(1) 749.

[11] HCJ 1000/92 Bavli v. Great Rabbinical Court [1994] IsrSC 48(2) 221.

[12] HCJ 5394/92 Hoppert v. ‘Yad VaShem’ Holocaust Martyrs and Heroes Memorial Authority [1994] IsrSC 48(3) 353.

[13] HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [1981] IsrSC 35(4) 1; IsrSJ 8 21.

[14] HCJ 141/82 Rubinstein v. Knesset Speaker [1983] IsrSC 37(3) 141; IsrSJ 8 60.

[15] HCJ 5688/92 Wechselbaum v. Minister of Defence [1993] IsrSC 47(2) 812.

[16] FH 10/69 Boronovski v. Chief Rabbis [1971] IsrSC 25(1) 7.

[17] HCJ 30/55 Committee for Protection of Expropriated Nazareth Land v. Minister of Finance [1955] IsrSC 9 1261.

[18] CrimA 112/50 Yosipof v. Attorney-General [1951] IsrSC 5 481; IsrSJ 1 174.

[19] HCJ 153/87 Shakdiel v. Minister of Religious Affairs [1988] IsrSC 42(2) 221; IsrSJ 8 186.

[20] CrimA 224/63 Ben-Ami v. Attorney-General [1964] IsrSC 18(3) 225.

[21] HCJ 720/82 Elitzur Religious Sports Association, Nahariyah Branch v. Nahariyah Municipality [1983] IsrSC 37(3) 17.

[22] HCJ 4169/93 — unreported.

[23] HCJ 410/76 Herut v. National Labour Court [1977] IsrSC 31(3) 124.

Israel National Labour Court cases cited:

[24] NLC 33/25-3 Flight Attendants Association v. Hazin [1973] 4 IsrNLC 365.

[25] NLC 44/85-0 – unreported.

American cases cited:

[26] Welsh v. United States 398 U.S. 333 (1970).

[27] Califano v. Westcott 443 U.S. 76 (1979).

[28] Boutilier v. Immigration Service 387 U.S. 118 (1967).

[29] Nemetz v. Immigration & Naturalization Service 647 F. 2d 432 (1981).

[30] Braschi v. Stahl Associates Co. 544 N.Y. Supp. 2d 784 (1989).

[31] Yorkshire Towers Co. v. Harpster 510 N.Y. Supp. 2d 976 (1986).

[32] Two Associates v. Brown 502 N.Y. S. 2d 604 (1986).

[33] E. 10th St. Assoc. v. Estate of Goldstein 552 N.Y. Supp. 2d 257 (1990).

English cases cited:

[34] Dyson Holdings Ltd v. Fox [1975] 3 All E.R. 1030 (CA).

European Court of Human Rights cases cited:

[35] Norris Case 142 Eur. Ct. H. R. (Ser. A) (1988).

[36] Modinos v. Cyprus Case 259 Eur. Ct. H. R. (Ser. A) (1993).

Canadian cases cited:

[37] Schachter v. Canada (1992) 93 D.L.R. (4th) 1.

[38] R. v. Turpin [1989] 1 S.C.R. 1296.

[39] Vriend v. Alberta (1994) 6 W.W.R. 414.

[40] Egan v. Canada (1993) 103 D.L.R. (4th) 336.

[41] Haig v. Canada (1992) 94 D.L.R. (4th) 1.

[42] Layland v. Ontario (Consumer Protection & Commercial Relations) (1993) 104 D.L.R. (4th) 214.

[43] Canada (A.G.) v. Mossop [1993] 1 S.C.R. 554.

Jewish Law sources cited:

[44] Genesis 1, 27; 1, 28; 2 24; 5 2; 6 19.

For the petitioner — Y. Winder, A. Ben-Israel

For the first respondent — S. Donevitz, O. Kalmaro

JUDGMENT

Vice-President A. Barak

A collective agreement and a collective arrangement confer a benefit on a ‘spouse’ (husband or wife) or a ‘companion recognized as a husband/wife’ of an employee. Is this benefit conferred also on an employee’s same-sex companion? That is the question before the court in this petition.

The facts and the litigation before the Labour Court

1. The first respondent (the respondent) works as a flight attendant for the petitioner (the El-Al company). Under the collective agreement, every (permanent) employee is entitled to receive free (or discounted) aeroplane tickets for himself and his ‘spouse (husband/wife)’ once a year. Under a collective arrangement (entitled ‘professional guidelines’), aeroplane tickets (as of 1 January 1986) are given to ‘a companion recognized as the husband/wife of an employee of the company if the couple live together in a joint household as husband and wife in every respect, but they are unable to marry lawfully.’

2. The respondent applied (on 21 January 1988) to the petitioner with a request to recognize his male companion as his ‘companion’ for the purpose of receiving an annual free or discounted aeroplane ticket. In his request, the respondent explains that he has a stable and long-term relationship (since 1979) with another man. The relationship involves, inter alia, running a joint household and cohabiting in a private apartment purchased jointly. The respondent’s request was refused.

3. The respondent applied to the Regional Labour Court. He asked the court to declare him entitled to receive free or discounted aeroplane tickets for his male companion, just as El-Al gives these to its employees’ spouses. According to a procedural agreement, it was agreed that the court would first consider the underlying question whether an El-Al employee is entitled to a free or discounted ticket for a same-sex ‘companion’. On this question, the Regional Labour Court (Justice Lubotsky and public representatives Ozeri and Pinchas) held that the provision of the collective agreement (which confers the right to the benefit on a ‘spouse’) does not confer a right on a companion of an employee, and this does not involve improper discrimination. However, the provision of the collective arrangement conferring a benefit on persons recognized as a couple (despite their being unable to marry lawfully) but not conferring the same benefit on a same-sex couple (who are also unable to marry lawfully) is a discriminatory provision. This discrimination is prohibited by the provisions of the Equal Employment Opportunities Law, 1988. Under the provisions of this law (in s. 2) — as amended in the Equal Employment Opportunities (Amendment) Law, 1992 — an employer may not discriminate against any of his employees in their conditions of employment ‘on the basis of sex, sexual orientation, personal status or their being parents.’ Because of this prohibited discrimination, the discriminatory provision in the collective arrangement was disqualified. By virtue of the procedural agreement, the Regional Labour Court went on to consider whether the respondent in fact cohabits with his companion.

4. El-Al appealed to the National Labour Court. The National Labour Court (President M. Goldberg, Vice-President S. Adler, Justice Y. Eliasof and public representatives R. Ben-Yisrael, Abrahamovitz, Friedman and Galin) dismissed the appeal.[*] It was held that the respondent does not fall into the category of those entitled to a discount under the collective agreement, since the expression ‘spouse (husband/wife)’ does not include a same-sex companion. It also held that the respondent does not fall into the category of ‘persons recognized as the husband/wife of an employee’ in the collective arrangement, since a recognized companion, in the context of the collective arrangement, does not include same-sex companions. Notwithstanding, the court held that this position constitutes improper discrimination on the basis of sexual orientation, contrary to the principle of equality set out in the Equal Employment Opportunities Law, as amended in 1992. This improper discrimination, contrary to provisions of the law, gives the respondent (as of 2 January 1992) a right to demand for himself the benefit that was not conferred on him for discriminatory reasons.

5. The petition before us is directed against the decision of the National Labour Court. El-Al (the petitioner) asks for a ruling that its refusal to give the respondent an aeroplane ticket for his companion does not constitute improper discrimination under the Equal Employment Opportunities Law as amended in 1992. El-Al’s contention is that this law — in the 1992 amendment — added an additional type of prohibited discrimination (‘sexual orientation’) but it did not confer rights to receive benefits that an employee was not previously entitled to receive. The respondent argued before us that there is no reason why we should intervene in the National Labour Court’s judgment, which ruled that a cause of action based on discrimination was created by the Equal Employment Opportunities Law, justifying giving aeroplane tickets for the respondent’s companion as of the date when the law was amended (on 2 January 1992).

The interpretive construction

6. The respondent (the flight attendant, the employee) may base his argument to receive the benefit (a free or discounted ticket) for his companion on two legal constructions. According to the first construction, his right is founded on the collective agreement that gives benefits to ‘a spouse (husband/wife)’ and on the collective arrangement that gives a benefit to ‘a person recognized as the husband/wife of an employee.’ According to this construction, the term ‘spouse’ (in the collective agreement) and the term ‘recognized companion’ (in the collective arrangement) should be interpreted according to their purpose to include also a spouse of the same sex and a recognized companion of the same sex. The respondent’s right to receive the benefit is contractual, and it is founded on the text of the collective agreement and the collective arrangement, just like the respondent’s right to receive the benefit for himself. This legal model is interpretive in nature. It is intrinsic to the actual text. In this the respondent’s right to receive benefits — for his companion and for himself — derives from the legal meaning of the contractual text that is chosen from among its various linguistic meanings. Naturally this right accrues to the employee when the conditions entitling him to it are fulfilled.

7. The interpretive construction was rejected by the Labour Courts. They held that the (legal) meaning of the term ‘spouse (husband/wife)’ in the collective agreement does not include same-sex companions. The National Labour Court pointed out that —

‘In the case before us, the parties to the collective agreement expressly showed that they did not mean a same-sex companion. The collective agreement says “spouse (husband and wife)”. The words “husband and wife” attached to the term spouse show that the parties used the term spouse in its narrow sense. It follows that this expression in the collective agreement does not include recognized companions and same-sex companions who are indisputably not “husband and wife”.’*

With regard to the term ‘person recognized as a husband/wife’ in the collective arrangement, the National Labour Court held that this does not include persons of the same sex who cohabit. The National Labour Court pointed out that the ‘term “recognized companion” does not appear by itself, but it is accompanied by the words “as husband/wife”.’* This use of language shows ‘that the intention of the drafter was not to include persons of the same sex.’*

The statutory construction

8. A second legal construction is also available to the respondent. This construction starts with the premise that the contractual right to receive a benefit is conferred only on a companion who is not the same sex as the employee. According to this construction, the contractual arrangement (the product of the interpretive construction) is a discriminatory arrangement that is contrary to the Equal Employment Opportunities Law (as amended in 1992). The remedy given to the respondent as a result of this discrimination is not to nullify the contractual arrangement — a remedy that he did not request at all — but to make a (judicial) order based on the provisions of the law to correct the discrimination. The respondent will therefore be entitled to the benefit for his companion by combining the discriminatory contractual provision with the corrective statutory provision. This construction is not interpretative. It is extrinsic to the actual text. Its existence derives from the combination of (A’s) contractual right and the statutory mandate to prevent discrimination (against B). The resulting right of the employee arises on the day that the statutory prohibition against discrimination on grounds of sexual orientation came into force (i.e., on 2 January 1992). It may be called a statutory (or extrinsic) construction. The National Labour Court accepted this construction, and this is what El-Al is attacking before us. Analyzing this legal model must be done in two stages: first, whether the contractual arrangement (the product of the interpretive construction) is (improperly) discriminatory because of sexual orientation; second, what remedy should be given to an employee who has been the victim of (improper) discrimination on the basis of sexual orientation?

9. The respondent did not reargue the interpretive construction before us. Indeed, this construction — which, as stated, was rejected by the National Labour Court — is complex (cf., with regard to the term ‘spouse’, FH 13/84 Levy v. Chairman of the Knesset Finance Committee [1]; see also C. A. Bowman, B. Cornish, ‘A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances,’ 92 Colum. L. Rev. (1992) 1164; R. Elbin, ‘Domestic Partnership Recognition in the Workplace: Equitable Employee Benefits for Gay Couples (and Others),’ 51 Ohio St. L. J. (1990) 1067). We would have been compelled to decide this, had the respondent insisted on his (contractual) right to receive a benefit from the date when these (contractual) rights were created. As we have seen, the respondent accepts the decision of the National Labour Court that his right is based on the argument of discrimination on the basis of sexual orientation, relying on the amendment (of 2 January 1992) to the Equal Employment Opportunities Law. As a result, we do not need to consider the interpretive construction. I therefore presume — without deciding the issue — that the respondent does not have a (contractual) right under the collective agreement and the collective arrangement to receive the benefit for his companion. On this basis, I will now examine the statutory construction, with its two questions (is discrimination present; what is the proper remedy). I shall begin with the first question.

The right to equality and its violation

10. Equality is a fundamental value in Israeli law. ‘It is the heart and soul of our whole constitutional regime’ (Justice Landau in HCJ 98/69 Bergman v. Finance Minister [2], at p. 698 {18}) and ‘it is part of the essence and character of the State of Israel’ (Vice-President Justice Elon in EA 2/88 Ben-Shalom v. Central Election Committee for the Twelfth Knesset [3], at p. 272). ‘…The rule that one may not discriminate against persons on the basis of race, sex, nationality, ethnicity, country of origin, religion, beliefs or social status is a fundamental constitutional principle which is counted among our fundamental jurisprudential perspectives and constitutes an integral part of these’ (Justice Shamgar in HCJ 114/78, Motion 451, 510/78 Burkan v. Minister of Finance [4], at p. 806). Considerations of justice and fairness underlie the principle of equality. ‘The principle of equality… has long been recognized in our law as one of the principles of justice and fairness…’ (Justice Mazza in HCJ 453/94 Israel Women’s Network v. Government of Israel [5], at p. 521 {150}). Equality is a central element of the social contract upon which society is based (see HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa; Labour Party in Tel-Aviv-Jaffa Municipality v. Tel-Aviv-Jaffa Municipal Council [6], at p. 332). Indeed —

‘Discrimination is a plague that fosters a feeling of unfairness and frustration. It harms the sense of belonging and constructive motivation to participate in, and contribute to, social life. A society that practices discrimination is not a healthy society, nor can a state in which discrimination is practised be called a civilized state’ (Justice Bach in HCJ 104/87 Nevo v. National Labour Court [7], at p. 760 {150}).

11. The principle of equality is entrenched in Israel in a number of normative structures. First, it is a principle of case-law — the product of ‘Israeli common law’ — that has been recognized and developed by the courts in Israel. This principle reflects on the (objective) intention of every piece of legislation and acts as a criterion for its interpretation. ‘The fundamental principle, which constitutes a legislative goal for all the acts of the legislature, is the principle that everyone is equal before the law… legislation should therefore be presumed and interpreted as intending to achieve this purpose, not to undermine it.’ (HCJ 507/81 Abu Hatzira MK v. Attorney-General [8], at p. 585. See also HCJ 301/63 Streit v. Chief Rabbi [9], at p. 612). The case-law principle of equality reflects on the law’s ‘fundamental concepts’ (such as reasonableness, justice, equality and public policy) and constitutes a normative element in establishing the scope of their application (see HCJ 693/91 Efrat v. Director of Population Register at Interior Ministry [10]). A discriminatory collective agreement may therefore be contrary to public policy and be disqualified as a result (see Nevo v. National Labour Court [7] and L.C.J. 3-25/33 Flight Attendants’ Committee v. Hazin [24]). The case-law principle of equality is a normative basis for recognizing the right of equality as a human right in Israel. It leads to the formulation of case-law rules based on it — such as the rule of spouses’ joint property ownership (see HCJ 1000/92 Bavli v. Great Rabbinical Court [11]).

12. Second, the principle of equality is incorporated in Israeli legislation. This began with Israel’s Declaration of Independence, which provides that the State of Israel shall treat its citizens equally ‘irrespective of religion, race or sex’. It continued in legislation that creates equality in specific relationships. Thus, for instance, the Women’s Equal Rights Law, 1951, provides that ‘women and men shall be subject to the same law for every legal act...’ (s. 1). The Employment Service Law, 1959, prohibits discrimination by the Employment Service when referring a person for employment (s. 42). The Equal Remuneration for Female and Male Employees Law, 5724-1964, aims to ensure equality in employees’ salaries. Special legislation is intended to allow corrective preferential treatment for women (see section 18A of the Government Corporations Law, 1975). Another law — which is the relevant one in this case and which we will discuss separately — is the Equal Employment Opportunities Law. This development culminated in the enactment of the Basic Law: Human Dignity and Liberty, which entrenched equality as a super-legislative constitutional right, within the framework of human dignity:

‘Today the principle of equality can be entrenched in the Basic Law: Human Dignity and Liberty. Such entrenchment implies the elevation of the principle of equality to a constitutional, super-legislative normative status’ (per Justice Or in HCJ 5394/92 Hoppert v. ‘Yad VaShem’ Holocaust Martyrs and Heroes Memorial Authority [12], at p. 362).

13. Needless to say, equality does not confer an absolute right. The human right of equality — like every other human right — is a relative right. The principle of ‘equality is not an absolute but a relative principle’ (per Justice Or in Hoppert v. ‘Yad VaShem’ Holocaust Martyrs and Heroes Memorial Authority [12], at p. 361); the limits of extending the principle of equality are determined by an (internal) balance between the whole spectrum of human rights and by the public interest (see A. Rubinstein, The Constitutional Law of the State of Israel, Shoken, 4th edition, 1991, at pp. 199, 299). The right to equality may be restricted by virtue of other appropriate values (see HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [13], at p. 13 {32}, and cf. s. 8 of the Basic Law: Human Dignity and Liberty). Indeed, sometimes equality is not completely protected. Equality may be lawfully restricted if this is consistent with the values of the State of Israel, is for a proper purpose and if equality is not restricted more than necessary.

14. The factual premise is that people are different from one another. ‘...No person is completely identical to another’ (Justice S. Levin in HCJ 141/82 Rubinstein v. Knesset Speaker [14], at p. 148 {67}). Every person is a world in himself. Society is based on people who are different from one another. Only the worst dictatorships try to eradicate these differences. Moreover, the presumption behind the Basic Law: Human Dignity and Liberty is that every person is free to develop physically and spiritually as he sees fit (see HCJ 5688/92 Wechselbaum v. Minister of Defence [15]). This underlying freedom is the basis for the principle of equality. It means equality before the law and the law being impartial to the differences between people. It means equality in applying freedom. It means equality in opportunities. This equality presumes a normative arrangement that is applied uniformly to all individuals, irrespective of the factual difference between them. However, the principle of equality does not presume only one rule for everyone. Indeed, the principle of equality does not rule out different rules for different people. The principle of equality demands that the existence of a rule that treats people differently is justified by the nature and substance of the issue. The principle of equality therefore presumes the existence of objective reasons that justify a difference (a distinction, dissimilarity). Discrimination — which is the opposite of equality — exists therefore in those situations where a different law for people who are (de facto) different from one another is based on reasons that are insufficient to justify a distinction between them in a free and democratic society. In Justice Or’s words, discrimination is ‘different treatment without an objective justification’ (Hoppert v. ‘Yad VaShem’ Holocaust Martyrs and Heroes Memorial Authority [12], at p. 360). President Agranat discussed this and pointed out:

‘The principle of equality, which is merely the opposite of discrimination and which, for reasons of justice and fairness, the law of every democratic country aspires to achieve, means that people must be treated equally for a particular purpose, when no real differences that are relevant to this purpose exist between them. If they are not treated equally, we have a case of discrimination. However, if the difference or differences between different people are relevant for the purpose under discussion, it is a permitted distinction to treat them differently for that purpose, provided that those differences justify this. In this context, the concept of “equality” therefore means “relevant equality”, and it requires, with regard to the purpose under discussion, “equality of treatment” for those persons in this state. By contrast, it will be a permitted distinction if the different treatment of different persons derives from their being, for the purpose of the treatment, in a state of relevant inequality, just as it will be discrimination if it derives from their being in a state of inequality that is not relevant to the purpose of the treatment’ (FH 10/69 Boronovski v. Chief Rabbis [16], at p. 35).

Therefore a particular law will create discrimination when two individuals, who are different from one another (factual inequality), are treated differently by the law, even though the factual difference between them does not justify different treatment in the circumstances. Discrimination is therefore based on the factors of arbitrariness, injustice and unreasonableness. Justice Witkon discussed this and pointed out:

‘What is discrimination? Not every distinction between different groups of people is called “discrimination”; the concept of discrimination includes the idea of unfairness in treating equals unequally’ (HCJ 30/55 Committee for Protection of Expropriated Nazareth Lands v. Minister of Finance [17], at p. 1265).

Discrimination — which, as stated, is the opposite of equality — means unfair, unjust and arbitrary treatment (see CrimA 112/50 Yosipof v. Attorney-General [18], at p. 490 {183}).

15. As we have seen, the contractual regime at El-Al gives a male or female employee a right to receive a benefit (a free or discounted aeroplane ticket) for a wife or husband or recognized companion (male or female), provided that they are of the other sex. Does this constitute discrimination against a companion of the same sex? As we have seen, the test for equal and discriminatory treatment is the question whether the difference in sex is relevant to the issue. This relevance is examined on the criteria of arbitrariness, fairness and justice. The basis for giving a benefit to an employee for a spouse or a recognized companion lies in the attitude that there are reasons for giving a benefit — such as an aeroplane ticket — to an employee for the person with whom he lives and shares a common household, from whom he is separated when he leaves on his flights and to whom he returns when he finishes his work. This is the criterion that both a spouse and a recognized companion have in common. The purpose of the benefit is not to strengthen the institution of marriage. Indeed, El-Al gives the benefit to an employee living with a recognized companion, even when that recognized companion is lawfully married to someone else. The idea underlying the giving of the benefits is therefore cohabitation for a certain period (specified in the collective arrangement), which is evidence of a firm social unit based on a life of sharing. In this context, it seems clear to me that denying a same-sex companion this benefit amounts to discrimination and a violation of equality. Indeed, the only reason for denying the benefit to a same-sex companion is sexual orientation. There is no other reason. This difference is not at all relevant to the issue before us (supporting a firm social unit, based on a life of sharing). In the case before us, we are dealing with a distinction that is arbitrary and unfair: is parting from a same-sex companion easier than parting from a companion of the opposite sex? Is living together for persons of the same sex different, with regard to the relationship of sharing and harmony and running the social unit, from this life of sharing for heterosexual couples?

16. One might argue that a life of sharing and harmony between persons of opposite sexes (whether as husband and wife or as recognized companions) is so different in its character from a life of sharing and harmony between persons of the same sex that any legal regime giving a benefit to the former relationship does not discriminate against the latter relationship. Although this argument seems to me problematic, I am prepared to reserve judgment, since the question that we must ask is not whether one relationship (a life of sharing and harmony between persons of opposite sexes) is different on any criteria from the other relationship (a life of sharing and harmony between persons of the same sex). As stated, I am prepared to assume that in various social contexts this difference does indeed exist. The question that we must ask is whether the difference in the relationship is relevant to the issue before us. The ‘issue before us’ is the social unit, the life of sharing and harmony that justify, in El-Al’s opinion, giving a benefit to a (permanent) employee in the form of an aeroplane ticket which will enable him to take with him the person with whom he cohabits. In this respect, the difference between a life of sharing between persons of different sexes and a life of sharing between persons of the same sex is clear and blatant discrimination.

Discrimination on the basis of sexual orientation

17. We have seen, therefore, that giving a benefit to a (permanent) employee for a spouse or recognized companion of the opposite sex and not giving the same benefit for a same-sex companion amounts to a violation of equality. What is the nature of this discrimination? Indeed, all discrimination is prohibited, but among the different kinds of discrimination there are varying degrees. The severity of the discrimination is determined by the severity of the violation of the principle of equality. Thus, for example, we consider discrimination on the basis of race, religion, nationality, language, ethnic group and age to be particularly serious. In this framework, the Israeli legal system attaches great importance to the need to guarantee equality between the sexes and to prevent discrimination on the basis of sex (see HCJ 153/87 Shakdiel v. Minister of Religious Affairs [19]; Poraz v. Mayor of Tel-Aviv-Jaffa [6]). It may be said that the discrimination in the appeal before us is based on improper considerations of sex. Conversely, it may be argued that discrimination on the basis of sex does not exist, since the same benefit is conferred on (permanent) male and female employees. This argument, in itself, does not strike me as convincing. However I do not need to decide the issue, since there can, I think, be no doubt that the discrimination in this case is based on the ‘sexual orientation’ of the (permanent) employee. This discrimination — against homosexuals and lesbians — is improper. It is contrary to equality. This emerges clearly from the provisions of the Equal Employment Opportunities Law. This law, as amended in the Equal Employment Opportunities Law (Amendment), states (in s. 2):

‘(a) An employer shall not discriminate between his employees, or between candidates for employment on the basis of their sex, sexual orientation, personal status or their being parents with respect to any of the following:

(1) giving employment;

(2) conditions of employment;

(3) promotion in employment;

(4) training or professional studies;

(5) dismissal or severance pay.

(b) For the purposes of subsection (a), making irrelevant conditions shall also be regarded as discrimination.

(c) Discrimination shall not exist under this section when it is required by the character or nature of the job or position.’

In explaining the provision about the prohibition of discrimination on the basis of sexual orientation, the chairwoman of the Labour and Welfare Committee, Mrs O. Namir, pointed out:

‘I hope that adopting the proposed law will contribute towards treating men and women equally, regardless of their sexual orientation, allowing them to live according to their sexual orientation as equal citizens in every respect, and affording them the legal protection enjoyed by every other group.’

This provision does not deny the differences between human beings. These differences are natural. This provision states that the different sexual orientation of persons shall not be relevant in employment, unless this is required by the nature of the job. Indeed, with regard to conditions of employment, the employer must be impartial to his employees’ sexual orientations. He must determine the conditions of employment only in view of the criteria required by the nature of the job. Therefore if a benefit is conferred on an employee having a long-term and permanent relationship with a woman, that benefit should be conferred on an employee who has a long-term and permanent relationship with another man. Thereby the employer implements the principle of equality. Thereby he is prevented from invading the privacy of the employee (cf. s. 7 of the Basic Law: Human Dignity and Liberty). Conferring a benefit on a permanent employee for his recognized companion and not conferring it on a permanent employee for a same-sex companion (who complies with all the requirements of a recognized companion apart from the requirement of sex) amounts to discrimination in conditions of employment because of sexual orientation. This discrimination is prohibited. Consider A, a permanent employee of El-Al, who shares his life for several years with a woman B. They cohabit and run a common household (as required by El-Al for complying with the conditions of a recognized companion). A is entitled to an aeroplane ticket for B. Now consider A who lives in the same way with a man C. They too cohabit and run a common household. A is not entitled to an aeroplane ticket for C. How can this difference be explained? Does the one carry out his job as an employee differently from the other? The only explanation lies in A’s sexual orientation. This amounts to discrimination in conditions of employment because of sexual orientation. No explanation has been given that might justify this discriminatory treatment. There is nothing characterizing the nature of the job or the position that justifies this unequal treatment (see s. 2(c) of the Equal Employment Opportunities Law). To be sure, it is possible that El-Al thinks that a (permanent) employee who lives with a (same-sex) companion behaves ‘improperly’. It is possible that someone at El-Al thinks that this joint lifestyle should not be encouraged. We need not examine this argument on an ethical level. Whether or not we agree with it, it does not amount to a justification that negates the existence of the discrimination. Indeed, the discrimination is not determined merely by the will and intention of the person creating the discriminatory norm. It is determined by the effect that it has in practice (see Nevo v. National Labour Court [7], at p. 759; Bavli v. Great Rabbinical Court [11]). Occasionally we can justify a violation of equality — which, as we have seen, is not an absolute but a relative right — on the basis of a proper purpose. Such grounds must be very substantial and relevant. A very great weight rests on someone who tries to discharge this burden. In the case before us, the burden has not been discharged. No attempt has even been made to discharge it. All that we have heard is that same-sex companions who cohabit are not like companions of different sexes who cohabit. Thereby they indicated to us the difference that exists between the different situations. In doing so they did not negate the discrimination, and they certainly did not point to a proper purpose that might justify it (see M. N. Cameli, ‘Extending Family Benefits to Gay Men and Lesbian Women,’ 68 Chi-Kent L. Rev. (1992-93) 447.

The remedy for a violation of the right to equality

18. I have therefore reached the conclusion that the legal regime created by the collective agreement and the collective arrangement, with regard to the benefit conferred on an employee to receive a (free or discounted) aeroplane ticker for a spouse or recognized companion (of the opposite sex), discriminates against an employee living with a same-sex companion. Now we must turn to the second question requiring a decision, namely the remedy to which an employee who has suffered discrimination is entitled. Case-law has established that a discriminatory contractual regime may support a claim that the provision in the contract is contrary to public policy and is therefore invalid (see Flight Attendants Association v. Hazin [24]). This invalidity may cause the whole contract to be invalid. In most cases, there is no reason to invalidate the whole contract, and it is sufficient to invalidate the illegal part by severing it from the lawful part (see ss. 14 and 31 of the Contracts (General Part) Law, 1973). Thus, for instance, in Nevo v. National Labour Court [7] the contractual regime provided that the ‘retirement age for a pension is 65 for men and 60 for women’ (ibid. at p. 753). The Supreme Court held that this amounts to discrimination against women. It was held that the proper remedy — which the petitioner sought in that case — is striking out the invalid part. The result is that the part of the employment agreement providing that ‘the retirement age for a pension is 65’ remained valid. The Court thereby used a technique of severance. This technique is not possible in the case before us. Indeed, had the collective agreement and collective arrangement provided that a permanent employee is entitled to a benefit for whoever is his companion, except a companion of the same sex, it would have been possible to strike down the limiting provision, and so re-establish equality. But the contractual text in our case is different. It does not allow operating on the body of the text and severing the healthy part from the unhealthy part. What, then, is the remedy to which the petitioner is entitled?

19. As we have seen, a possible remedy is voidance of the contractual arrangement regarding the benefit. The result, from the respondent’s perspective, will be a case of ‘Let me die with the Philistines’ (Judges 16, 30): the respondent will not receive a benefit, but neither will recognized companions of the opposite sex. This outcome is not reasonable in the circumstances. Why should recognized companions of opposite sexes suffer a material loss? What wrong have they done? The National Labour Court rightly pointed out that the petitioner himself did not seek this remedy.

20. The appropriate remedy in this situation is to confer the benefit also on same-sex cohabitees. This remedy is recognized in the comparative literature. It was developed mainly in the case of laws that are contrary to the principle of equality laid down in a constitution. In American constitutional literature it is called the ‘extension’ of the existing text. In Canadian constitutional literature it is called ‘reading into an arrangement’ or ‘reconstruction’ of the text. These terms are not accurate ones. The judge does not change the existing text, nor does he reconstruct it nor add to it. The judge does not do anything to the existing text. What the court does is different. It determines that as long as the existing text remains as it is — and as stated the judge does not do anything to it — similar benefits must be given to an additional group that is not mentioned in the text. Conferring this benefit derives directly from the principle of equality, which is a normative principle to which the text is subservient and to which it must conform. It can be seen then that the court does not implant an additional organ into the body of the text infected by improper discrimination. The court determines, however, that by virtue of the principle of equality — as long as the discriminatory contractual arrangement remains unchanged — a relief of conferring a benefit also on the victims of discrimination is required in order to remove the discrimination.

21. As we have seen, this relief is recognized by American constitutional law. In the case of Welsh v. United States (1970) [26] a statute exempted a person from military service because he was opposed to war for reasons of religion or faith. The petitioner asked for an exemption for reasons of conscience. A number of judges held that the exemption for reasons of religion or faith extends also to an exemption for reasons of conscience. Justice Harlan, however, disagreed. In his view, an exemption for reasons of conscience was not included in the statute. In this the statute violated the provisions of the Constitution. The proper remedy, in the judge’s opinion, was not nullifying the exemption for reasons of religion or faith but granting an exemption, based on the Constitution itself, for reasons of conscience. Justice Harlan writes, on page 361:

‘Where a statute is defective because of underinclusion there exist two remedial alternatives; a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion…’

He continues at p. 364:

‘While the necessary remedial operation, extension, is more analogous to a graft than amputation, I think the boundaries of permissible choice may properly be considered by the legislative pronouncement on severability.’

Since that case, American courts tend to grant this remedy (see R. Bader-Ginsburg, ‘Some Thoughts on Judicial Authority to Repair Unconstitutional Legislation’ 28 Clev. St. L. Rev. (1979) 301; B. K. Miller, ‘Constitutional Remedies for Underinclusive Statutes: A Critical Appraisal of Heckler v. Mathens,’ 20 Harv. C.R.-C.L.L. Rev. (1985) 79. This remedy appears to the court natural and appropriate and preferable to nullification. One of the cases involved a statute that gave assistance to needy families. The statute provided, inter alia, that the support would be given to a family where the mother did not work and the father had worked previously but was now unemployed. A family where the father did not work and the mother had worked previously but was now unemployed was not included among the recipients of the support. The court held that the statute unlawfully discriminated against families where the father did not work whereas the mother had worked but was now unemployed. Against this background arose the problem of the remedy: whether to nullify the support for the family that was entitled (because of the discrimination inherent in the arrangement) or to extend the application of the statute to a family that was not included in it. It was held that the family which was the victim of discrimination should be added (Califano v. Westcott (1979) [27]).

22. The Supreme Court of Canada has a similar approach. It often tends to ‘read in’ to the statute provisions that will negate the unconstitutional nature of the statute. Justice Lamer wrote in Schachter v. Canada (1992) [37], at p. 12:

‘…extension by way of reading in is closely akin to the practice of severance. The difference is the manner in which the extent of the inconsistency is defined. In the usual case of severance, the inconsistency is defined as something improperly included in the statute which can be severed and struck down. In the case of reading in, the inconsistency is defined as what the statute wrongly excludes rather than what it wrongly includes. Where the inconsistency is defined as what the statute excludes, the logical result of declaring inoperative that inconsistency may be to include the excluded group within the statutory scheme. This has the effect of extending the reach of the statute by way of reading in rather than reading down.’

23. These remedies are appropriate in the constitutional sphere. They promote the purpose underlying the constitutional arrangement. They make it unnecessary to nullify legislation. The use of this remedy is not mechanical. We must consider in each case whether extension is possible. We must examine whether it is simple to implement, and whether it does not involve excessive intervention in the legislative fabric. We must consider the budgetary ramifications. Indeed, a benefit conferred by law to a marginal group does not justify granting a constitutional remedy by extending the remedy to a large and significant group. Neither should we adopt this technique to impose obligations on sectors of the population in whose favour the law has discriminated by not imposing these obligations on them.

24. These remedies — which were developed in the constitutional sphere — can be applied in the field of collective agreements and collective arrangements. They create a contractual regime that is subject to a supreme normative principle of equality. This principle derives its supremacy (with respect to collective agreements and arrangements) from the Equal Employment Opportunities Law. This principle of equality applies — by virtue of the express provisions of the Equal Employment Opportunities Law — also in private law. It is not merely a principle of public law. It obliges every employer not to discriminate against any of his employees in the fields of private law. Indeed, with regard to the prohibition of discrimination because of sexual orientation — just as with regard to other kinds of discrimination — the law establishes a mandate that obliges the employer. By virtue of this normative mandate — which is of supreme status with regard to collective agreements and arrangements — the employer is forbidden to discriminate against any of his employees with regard to conditions of employment. When a contractual arrangement drawn up by him involves prohibited discrimination, the contract is tainted with illegality. It may be voided by virtue of the provisions relating to invalid contracts. To prevent it being voided, we may demand — as an alternative remedy — that the employer refrains from the prohibited discrimination. This is achieved by compelling the employer to confer the benefit on the employee who is the victim of the discrimination. This does not change the agreement between the parties. We do not thereby read into the contract what is not there. We thereby merely remove the discrimination and comply with the normative mandate not to discriminate. Indeed, the basic fact is the discriminatory contractual arrangement. The contents of this are determined by the parties to the contract, and they control it and can change it. As long as the discriminatory contractual arrangement remains unchanged, the supreme normative mandate — which derives from cogent law — exists alongside it and compels the employer to act with equality. Indeed, just as by virtue of the normative supremacy of the constitution (or the entrenched Basic Law) the scope of applicability of a provision of a law may be extended, so too can the normative power of the law extend the scope of applicability of provisions in a collective agreement or a collective arrangement. By virtue of this normative supremacy, the contractual regime must modify itself to comply with the principle of equality (in our case, the prohibition against discrimination in conditions of employment because of sexual orientation). This modification does not require cancelling the existing contractual arrangement. This modification is achieved by conferring a benefit — which originates not in the contractual arrangement but in the principle of equality that extends the contractual arrangement to equivalent situations — on the class that is the victim of discrimination. This extension is suitable for the contractual model. It adds a small group of beneficiaries and does not therefore impose a significant budgetary burden. Justice is done, and justice is seen to be done.

The petition is denied. The case is remanded to the District Labour Court, as stated in the judgment of the National Labour Court. The petitioner shall pay the costs of the first respondent in a total amount of 10,000 NIS.

Justice Y. Kedmi

The question we must decide in this case is: does the concept ‘spouse’ used in the employment agreements include same-sex companions or not? My esteemed colleague, the Vice-President, answered this in the affirmative. Unfortunately, I cannot agree with that conclusion. The following are my main reasons:

1. ‘Spouse’: the conceptual significance in the social sphere

(a) The linguistic concept of spouses, who together form a ‘family’, expresses, in the social sphere, an union of two individuals of opposite sexes to form a ‘couple’; a ‘couple’, in this context, has since the origin of man until the present represented a joining of two individuals of opposite sexes. This is the case here and throughout the world, and the Book of Books gives decisive proof of this: ‘And God created man in His image, in the image of God He created him; male and female He created them’ (Genesis 1, 27 [44]).

This is the case with man and it is the case with the animals, and the story of Noah’s ark leaves no doubt about this: ‘You shall bring two of each into the ark to preserve with you; they shall be male and female’ (Genesis 6, 19 [44]).

There is of course nothing to prevent the term ‘couple’ expressing a ‘quantity’ of two individuals; but we are not dealing here with the quantitative meaning of the concept but with its substantive meaning in the social sphere.

To give the concept ‘couple’, in the context discussed here, a different meaning from the linguistic meaning that it has always had is impossible. ‘A different meaning’ of this concept would deprive it of its essence; once again we are not speaking of a ‘couple’ that builds a family, incorporating a ‘husband’ and a ‘wife’, but a ‘couple’ that expresses a ‘quantity’ of two individuals who have come together, whatever their sex is.

In Hebrew the concepts of ‘husband’ and ‘wife’ are inseparably associated with the concept of ‘family’; you cannot have a ‘family’ unless two companions of different sexes are its basis (‘a heterosexual couple’).

(b) The relationship that turns two individuals — of opposite sexes — into a ‘couple’, in its linguistic-social meaning, is characterized by the decision of the two to have a joint lifestyle; ‘joint’, in this context, inter alia and especially, expresses family life whose primary purpose — and from a conceptual viewpoint it is impossible otherwise — is to bring children into the world: ‘And God blessed them, and God said to them: be fruitful and multiply and fill the earth…’ (Genesis 1, 28 [44]).

Thus it is no coincidence that the concept ‘couple’ is, in Hebrew, derived from the root meaning ‘intercourse’; the ‘couple’ and ‘intercourse’ are one, and only where these exist can we speak of a ‘family’.

Admittedly not every couple is ‘capable’ — or wishes — to bring children into the world, and not every ‘couple’ becomes such in order to bring children into the world. But these ‘exceptions’ in this context cannot undermine the fundamental conceptual meaning of the concept ‘couple’; therefore a precondition for two people being a ‘couple’ is that they are of different sexes.

(c) The heterosexual ‘couple’ is what creates the basic family unit; and, as stated, there is no ‘family’ in the social meaning of the word, unless a heterosexual couple forms the basis of it.

It is indeed possible to change the meaning of basic concepts such as ‘couple’ and ‘family’. However the change must primarily be a conceptual change of basic epistemological meanings; the language that has existed from ancient times does not recognize a ‘couple’ and a ‘family’ that are not heterosexual, except as an exceptional phenomenon that requires a descriptive supplement alongside the use of these concepts, which lose their original meaning where we do not refer to a joining of the two sexes.

(d) It is indeed possible for ‘two persons’ of the same sex to adopt for themselves external characteristics that describe a ‘couple’ and a ‘family’ as stated, and to imitate — in so far as they can — the behaviour pattern of ‘spouses’ and even to establish in practice a ‘family’. But they do not become a ‘couple’ and a ‘family’ in the fundamental meaning of these terms in our language; and language is, in the end, the mirror that reflects our society.

In order for two people to become a ‘couple’ that establishes a ‘family’, in the conceptual-epistemological meaning of our language — and it is a common language that forms the basis of our existence as a society — it is an essential and necessary condition that the two individuals who comprise a ‘couple’ come from opposite sexes.

In this regard, it is irrelevant that two individuals of the same sex, who join into a ‘couple’, do so because their natural sexual orientation does not allow them to be ‘spouses’ in the conceptual sense accepted in our language, namely that of persons of the opposite sex. It is not the ‘capacity’ to be a spouse, in the said basic epistemological meaning, that matters, but the sex of the partner. The criterion for two persons to be a ‘couple’ — according to the epistemological meaning of the concept — does not lie in the lifestyle led by the two persons but, primarily, in their being of different sexes.

(e) The aforesaid should not be regarded as a position deriving from a conservative religious outlook: religion did not dictate the meaning of the concept ‘couple’ in the epistemological sphere, but life itself dictated it; and the reality that reflects life is what lies at the basis of the expression ‘couple’ and this is what gave it the aforesaid meaning in the social sphere.

(f) It should be emphasized:

(1) The concept ‘couple’ — whose components are a ‘husband’ and ‘wife’ — is not necessarily connected with the institution of marriage. Use can be made of the concept ‘couple’ both with regard to a ‘married couple’ and an ‘unmarried couple’, so long as the joining of the spouses makes them a ‘couple’ within the meaning set out above.

(2) There is nothing to prevent adjectives being added to the concept ‘couple’ in its basic social meaning, such as married and unmarried; the adjective ‘married’ does not affect the basic meaning of the concept ‘spouse’ which expresses, in the context under discussion, two individuals of opposite sexes forming a social unit, based on sexual collaboration, whose nature is determined by its original purpose.

(3) In consequence — and more will be said about this below — there is no reason why ‘recognized companions’ should not be regarded as ‘spouses’, since they comply with the basic condition of an union of two persons of different sexes into a family unit, within the basic meaning of this expression as aforesaid. Recognized companions are not a ‘married’ couple but they do constitute a ‘couple’ and a ‘family’; as such, there is no fundamental conceptual difficulty in applying to them legal arrangements prescribed for a ‘married’ couple, and treating them, socially and linguistically, as a ‘couple’ in every respect.

(4) In these circumstances, in the language of human beings — all human beings — the word ‘couple’, in a social context, expresses an union of two individuals of opposite sexes, for a ‘joint life’ in the primary meaning of the word as aforesaid; and if we wish to change the meaning of the concept, we must do so, first and foremost, in the sphere of the basic linguistic concepts of our language and determining this change, expressly, in legislation relating to this issue. Without an express determination, the law gives expression to the linguistic meaning of the concepts to which it refers, unless it states the contrary.

The law speaks in human language, since it is intended for human beings; wherever we wish to deviate from human language and speak in the ‘language of the law’ — this should be done in accordance with an express, clear and unambiguous provision of the legislator. In the present context, this must be a provision that deliberately changes the linguistic significance of the term ‘couple’ in the social context and gives this concept, for the purpose under discussion, another meaning, materially different from its meaning in current usage.

2. Marriage and the institution of recognized spouses

(a) As a rule, wherever we speak of a ‘couple’ — in the social sphere — the initial impression created in the conscience of the listener or the reader is one of a ‘married’ couple; for ‘marriage’ is what grants legal — and social — recognition to the joint life of the ‘spouses’ as a family unit, in the aforesaid primary meaning.

(b) However, as stated, it is not the external, formal framework of marriage that gives a ‘couple’ its traditional, literal meaning as aforesaid: a ‘couple’ in the sense discussed here, may be ‘married’ or ‘unmarried’, but it must always be a ‘couple’; and you do not have a ‘couple’ in the meaning discussed here unless the two individuals who form it are of opposite sexes. Linguistically, there is no ‘other’ couple in the social sphere; and language is what underlies human communication, and it is the means whereby people express their thoughts.

So marriage, as a legal institution, does not give the linguistic term ‘couple’ its content and conceptual meaning; it merely adds to it social recognition as a family unit in the community, and grants the two individuals forming it — the man and the woman — rights and duties in the legal sphere.

(c) For this reason — and this too has already been said — wherever a ‘couple’ complies with the basic definition of the concept — namely, wherever we are speaking about an union of two individuals of different sexes for a joint lifestyle as a family unit within the meaning set out above — there is no logical difficulty in regarding them as a ‘married couple’ for the purpose of duties and rights that the law prescribes for a ‘married’ couple; regarding the two as a ‘couple’ forms the basis whereby the law confers rights and imposes duties on a married couple.

By contrast, wherever we are speaking of two persons who have joined together for a joint lifestyle as a ‘pair’ that is not a ‘couple’ within the aforesaid basic linguistic sense, logic does not allow us to regard them from a legal viewpoint as if they were a ‘couple’, because they constitute something ‘else’. The ‘married’ couple and ‘recognized companions’ are a ‘couple’, whereas two persons who have joined for a joint lifestyle and are of the same sex are not a ‘couple’ but a ‘pair of friends’.

3. The collective agreement and the collective arrangement

(a) Now let us turn from the general to the particular. The collective agreement, whose provision we are interpreting, speaks of a ‘spouse (husband/wife)’ (emphasis added); the term ‘spouse’ should be given the traditional linguistic meaning, whereby it refers to individuals of different sexes forming a ‘couple’ as set out above.

The addition ‘husband/wife’ is not intended to tell us that we are referring to spouses of different sexes, since for this we do not need any addition, and use of the term ‘spouse’ is sufficient. The addition is intended to clarify that this agreement refers to spouses who are married to one another, for they alone are called ‘husband’ and ‘wife’; the supplementary addition in the collective arrangement referring to a ‘companion recognized as a husband/wife’ proves that this is indeed the case. Had it not been for this supplement, the words ‘husband/wife’ in the collective agreement could have been interpreted as restricting ‘spouse’ to a ‘married’ couple only, and it would have been necessary to clarify that they are referring also to a ‘couple’ that is not married but which is merely recognized publicly as such.

(b) The addition of ‘recognized companion’ in the collective arrangement does not break away from the framework provided in the collective agreement: both refer to a ‘couple’ and ‘spouses’ in the basic social meaning of the concept ‘couple’, as aforesaid; distinguishing between ‘couples’ on the basis of marriage has more than a hint of discrimination. A married couple and an unmarried couple are fundamentally ‘equal’, in so far as the meaning of the concept ‘couple’ is concerned; distinguishing between them on the basis of ‘marriage’, which merely constitutes a formal, external mark of the framework of their joint lifestyle as a ‘couple’, amounts to improper ‘discrimination’ and not a permitted ‘distinction’. This is sufficient to justify the supplement in the collective arrangement, which intends to prevent improper and forbidden discrimination between ‘couples’.

(c) By contrast, introducing a pair made up of two individuals of the same sex (‘a same-sex couple’) into the said provisions of the agreement and the arrangement amounts to planting a foreign type of plant — something that is not a ‘couple’ — in a field that contains only couples, whether married or unmarried.

A same-sex ‘couple’ is not a ‘couple’ within its basic linguistic meaning, and it should, in my opinion, be referred to, linguistically, as a ‘pair’; the argument that it is a victim of discrimination in comparison with other ‘couples’ is unfounded: the married and unmarried couples are couples, and distinguishing between them constitutes discrimination, whereas the ‘pair’ is not a ‘couple’, and distinguishing between it and a ‘couple’ (married or merely publicly recognized) is not discrimination. So long as the linguistic and social meaning of the concept ‘couple’ is unchanged, a ‘pair’ will not become a ‘couple’: the latter ‘combine into one’ (‘Wherefore a man shall leave his father and mother, and shall cleave to his wife, and they shall become one flesh,’ Genesis 2, 24 [44]), whereas the former will always remain two.

4. The interpretive aspect

(a) The means of communication between human beings is language, and a precondition for understanding between persons having a discussion is that the words, expressions and concepts that form the language have a stable linguistic meaning.

(b) As stated, the law speaks to human beings in human language: and the word is, first and foremost, the basis for interpretation of its provisions. The concepts ‘couple’ and ‘spouses’ and the linguistic relationship between them and ‘family’ are primarily linguistic concepts, whose meaning — in so far as the social sphere is concerned — is, as stated above, an union of two individuals of opposite sexes to share their lives in a family unit, when this sharing is characterized, inter alia, by intimacy designed, conceptually, to ensure the continuation of life.

(c) The same is true of interpretation of the law, and likewise with regard to interpretation of a legal document: a ‘couple’ requires the union of two individuals of opposite sexes; this is true even when the two are incapable in practice or unwilling — for whatever reason — to be intimate for the purpose of ensuring the continuation of life.

(d) Indeed, one of the fundamental rules of statutory interpretation is that the law is interpreted in order to achieve the purpose for which it was legislated; mutatis mutandis, a legal document is interpreted so as to achieve the intention of the parties to it.

Where the language is clear, we would fail in our duty if we were to deviate from the agreed linguistic meaning by which people plan their lives, and give the concepts used by the law or the agreement a different meaning from the one that they have in the world of language.

5. The Equal Employment Opportunities Law – discrimination

(a) I wholeheartedly agree with the illuminating remarks of my esteemed colleague — the Vice-President — with regard to the significance of the principle of equality and the duty to realize and apply it.

However, as my esteemed colleague noted — when citing Boronovski v. Chief Rabbis [16] and Committee for Protection of Expropriated Nazareth Lands v. Minister of Finance [17] — you cannot violate the principle of equality unless you have ‘equals’; where you have persons who are not equal, treating them differently compared with others who are different from them should not be regarded as improper discrimination, but merely as a permissible distinction.

(b) My esteemed colleague found that same-sex couples are ‘equal’ to heterosexual couples; from here, it was naturally easy to reach a conclusion of ‘discrimination’ between the two types of ‘couples’, where one is entitled to a benefit and the other is not.

I do not accept this position. In my opinion — following what I have said until now — we are dealing with two ‘couples’ that are completely different in nature; the one — the heterosexual (whether married or unmarried) — is a ‘couple’, whereas the other — the homosexual — is merely a ‘pair’; therefore conferring a benefit on the one does not constitute discrimination when not conferring the benefit on the other.

(c) The common denominator that makes the two ‘couples’ — the homosexual and the heterosexual — ‘equals’ for the purpose of the principle of equality, lies, according to my esteemed colleague, in the fact that the characteristic marks of the joint lifestyle of the two are equal; both run a common household, both form a family unit, and both live within a social framework based on a life of sharing and harmony; prima facie, they only differ from one another in one external-formal factor, which is merely that the homosexual couple cannot marry.

My esteemed colleague adds: ‘the inability to marry’ is a factor that also distinguishes married spouses from ‘publicly recognized’ companions; and this distinguishing factor did not prevent a total comparison between the latter and the married spouses.

(d) According to my thinking, a sharing and harmonious relationship — as pointed out by my esteemed colleague — is insufficient to make a homosexual couple a ‘couple’ within the meaning that this concept has in our language in the context discussed here, because it lacks an element essential to ‘being a couple’, namely that the spouses must be of opposite sexes. The formal ‘inability’ to marry — by a formal marriage — does not put the homosexual couple in the same category as the heterosexual ‘publicly recognized’ unmarried couple; the latter is a ‘couple’ within the linguistic meaning of this concept, whereas the former is not.

The distinction between the heterosexual couple — including ‘publicly recognized companions’ — and the homosexual couple is based on the fundamental nature of the concept ‘couple’; the first is a ‘couple’ because it is comprised, as stated, of two individuals of opposite sexes, whereas the second is otherwise; the fact that the homosexual spouses maintain a social framework ‘similar’ in its external characteristics to that of the heterosexual couple — the natural family unit — does not make them a heterosexual couple.

As stated, an essential factor — which is an indispensable condition in this context — for converting two individuals enjoying a life of sharing and harmony into a ‘couple’, within the meaning of the term in the Hebrew language, lies in them being ‘of one flesh’ and their being able — conceptually — to fulfil the precept of ‘being fruitful and multiplying’. The ‘married’ couple and the ‘publicly recognized’ couple meet this basic requirement, and they are therefore ‘equal’ for the purpose of examining an allegation of discrimination; whereas the homosexual couple, which does not meet the said basic requirement, is different from them in the said respect.

(e) My esteemed colleague is aware of a substantive difference that distinguishes, conceptually, between the two ‘couples’ as stated, but according to his approach this difference has no implication for the case before us; this is because in his opinion El-Al decided to confer a benefit on its employees ‘in the form of an aeroplane ticket enabling the employee to take with him the person with whom he shares his life’ (emphasis added), and for this purpose there is no difference between the two couples.

Even this narrow and restrictive approach to the problem before us does not, unfortunately, enable me to agree with my colleague. Admittedly we are concerned with the interpretation of El-Al’s decision. However, this decision does not speak of granting an aeroplane ticket to a person who ‘lives together with the employee’ (emphasis added) but to ‘the employee’s spouse’ (emphasis added); the linguistic difference between the two speaks for itself. As I have already stated, in my opinion the concept ‘couple’ in our language — in the social sphere considered here — expresses the union of two individuals who share their lives, which makes them physically into ‘one flesh’ in the primary sense of the expression; ‘He created them male and female… and He called their name man…’ (Genesis 5, 2 [44]); whereas the union of two individuals that ab initio cannot, physically, become ‘one flesh’ as stated, and who conceptually cannot achieve the said purpose, creates a couple quantitatively (since there are two), but not qualitatively (since the two cannot become one, within the framework of the commandment of being fruitful and multiplying).

(f) In my opinion, all we have before us is the language of the collective agreement — and in the supplement found in the collective arrangement — namely: ‘spouse (husband/wife)’ in the agreement, and ‘the person publicly recognized as husband/wife of the company’s employee’ in the arrangement; I do not think that we may read instead of these: ‘whoever lives together with the employee’ and even not ‘whoever forms a family unit with the employee’.

We are not dealing with a ‘life of sharing’ or a ‘family unit’, but with spouses within the basic conceptual meaning that this concept has in our language; these are always heterosexual, as long as language does not change its meaning.

5. With regard to the allegation of discrimination between a ‘homosexual couple’ and a ‘heterosexual’ couple, there is no place in my opinion for considerations of social justice; the distinction between these two does not lie in the employees’ sexual orientation, but in the distinction between a ‘couple’ and a ‘family’ and those who do not constitute either a ‘couple’ or a ‘family’, within the meaning given to these terms in our language. Even single employees — whether ‘heterosexual’ or ‘homosexual’ — have close friends with whom they would like to spend their vacation abroad; yet no-one claims that they are discriminated against in that they are refused the benefit merely because they do not commit themselves to a formal framework of ‘a joint lifestyle’ with those friends.

El-Al saw fit to confer a benefit on ‘spouses’ that constitute a ‘family’ within the meaning thereof in the language which we use to communicate with one another; this does not constitute discrimination on the basis of ‘sexual orientation’, since we do not regard the homosexual spouses as included in the linguistic concepts ‘couple’ and ‘family’. We have here a distinction between a ‘spouse’ and someone ‘who is not a spouse’, and it may be argued that from a sociological and social viewpoint there is discrimination between ‘couples’ and those who are not ‘couples’; however, discrimination on a basis of ‘sexual orientation’ is not present here.

6. More regarding the distinction between ‘couples’

(a) Heterosexual couples share a complete mutual commitment to sharing and stability, each to the other and both to the framework of the couple, in all spheres of life. The law gives validity to this commitment, since society, as such, has a profound interest in preserving the framework of the couple — which forms the basis of the organizational structure of human society — and ensuring its stability.

Society has adopted in this respect the approach that regards spouses becoming ‘one flesh’ — that is capable, conceptually, of achieving the mission of ‘being fruitful and multiplying’ — as a condition for making two people who unite for a life of sharing into a ‘couple’; language expresses this with the meaning it attaches to ‘couple’ and ‘family’. At the same time, society created rules to give a seal of social recognition to the framework of the ‘couple’, and it protects it and intervenes when a couple wishes to dissolve the framework, and it even seeks to prevent the dissolution whenever possible.

The said protection and intervention are achieved with legal tools; and the law — following language, which reflects social consensus — attaches the said meaning to ‘couple’ and ‘family’, but not to the homosexual couple.

(b) The recognition of the heterosexual couple that is ‘publicly recognized’ as a ‘couple’, even though it does not have all the legal guarantees of mutual commitment and stability, derives from the existence of the basic social requirements for the existence of a ‘couple’ — namely, an union of two individuals of opposite sexes as ‘one flesh’, who are able, conceptually, to ensure reproduction — and when these exist, there is no social justification for ignoring the de facto existence of the family unit and the spouses comprising it; on the contrary, it must ensure that the mutual commitment and stability of the unit are protected, even without the formal status of marriage.

The rules granting ‘mutual benefits’ to publicly-recognized heterosexual couples just like to married couples — in the circumstances provided by law — are based on a desire to give expression to the mutual commitment and ensure the stability of the family unit created by the publicly recognized ‘couple’, not necessarily by formally entering into the institution of marriage.

(c) This case of the homosexual couple is different: on the one hand, the substantive condition of different sexes is not met, and without this, one cannot speak physically of ‘one flesh’ and conceptually of reproduction and continuation of life, and therefore it does not constitute the same fundamental unit that lies at the basis of the organizational structure of human society; on the other, the partners do not have the same mutual commitment to the stability and continuity of the partnership that might induce society to recognize them as a ‘special’ couple and fit them in alongside the ‘typical’ couple at the basis of the social structure.

When society reaches the conclusion that a homosexual unit should also serve as a basic ‘unit’ of the social structure alongside the heterosexual couple, and when it determines rules for its creation, formal recognition of its existence and the guarantee of the mutual commitment between its constituents to partnership and stability, then the linguistic-conceptual meaning of the term ‘couple’ and ‘family’ in this context will change, and the homosexual couple will be included in the new linguistic framework alongside the heterosexual couple.

But as long as there is no such social consensus, the homosexual couple is not included within the framework of a ‘couple’ in our language, and it is not recognized as one of our society’s nuclear units; consequently its formation, the mutual commitment of its constituents to the partnership and its stability, and the rights and duties of those involved in it are naturally not regulated by our law.

(d) The change required here is therefore a basic conceptual change in our social outlook regarding the substance of the basic social unit, counted among the elements of our society’s organizational basis. The expression of what appears to be ‘tolerance’ towards exceptional cases and an attempt to prevent apparent social discrimination against those exceptional cases on the basis of what is exceptional about them cannot replace the fundamental conceptual change necessary for equating the homosexual couple with the heterosexual couple.

7. Different conceptual attitudes in different cases

(a) According to my approach, there is no reason to attach an ‘independent’ and different meaning to the concepts ‘couple’ and ‘spouse’ in different contexts of sharing lives in society. I do not accept the approach that says that these concepts should be examined separately in the field of labour relations, in the field of social legislation, in the field of residency and citizenship, in the field of property law and obligations, in the field of taxation, etc..

In my opinion, as stated, in current circumstances, from the linguistic-social viewpoint, the words ‘couple’ and ‘spouse’ have only one conceptual meaning, namely two individuals of opposite sexes who have united into a framework of a joint life, which is based on the physical ability to become ‘one flesh’ and the conceptual ability to fulfil the commandment of being fruitful and multiplying; the removal of this two-fold characteristic from the framework of the definition of the concept ‘couple’ amounts to a nullification of the meaning that this concept has in the language of consensus that we use as an organized society.

(b) Destroying the linguistic-conceptual meaning in one sphere naturally leads to departing from it in other spheres, and the social framework built on an existing agreed meaning is undermined. The term ‘couple’, in this context, will lose its conceptual meaning in our language, and the focus of this meaning, which today derives from the heterosexuality of the spouses, will become a personal decision to have a life of quasi-family sharing at a particular time, where the sex of the spouses will be left to one side. There is nothing to prevent this result being reached, if it is deemed correct to go in this direction. However, this must be done by giving a ‘different’ meaning to the linguistic concept ‘couple’; this is not for us to do, but for whoever is authorized to change the Hebrew language, even if only in the legal sphere.

(c) Let me not be misunderstood: my approach does not seek to challenge the increasingly prevalent social recognition of the sexual orientation of individuals who wish to build their lives with persons of the same sex, nor do I wish to place obstacles in the path of those individuals to prevent their self-fulfilment in accordance with their orientations. All that I want is to refrain from the destruction of a conceptual ‘barrier’, linguistic chaos and communication that suffers from ‘misunderstandings’, by deviating so sharply from the meaning of basic concepts, which are the foundation of society and facilitate its operation in the way that we currently live.

For generations the concept ‘couple’ has been used in the social context to express a heterosexual couple. It was used in this way both orally and in writing, and it was used in this way in determining social arrangements and legal norms. If we try to introduce a change in this matter, this ought to be done in a straightforward way and not in a roundabout fashion; for we are dealing with human language, and we are obliged to respect it and protect the stability of its contents.

8. Summary

(a) A ‘heterosexual’ couple — whether married or unmarried — is a ‘couple’ within the conceptual meaning of the word, whereas a ‘homosexual’ couple is not.

(b) For this reason, we are not dealing conceptually with ‘equal’ couples, and therefore the distinction made between the heterosexual couple and the homosexual couple is merely a ‘distinction’, and not ‘discrimination’.

(c) There is no basis for partial and limited recognition of the institution of the ‘homosexual’ couple; yes — with regard to labour agreements; no — in other areas, such as taxation, personal status, citizenship, giving testimony, etc..

A change in the meaning of the concept of ‘spouse’ must be general and all-encompassing, and it ought to be done in a way that everyone is aware of the new meaning given to it and its ramifications.

(d) An employer may offer a ‘benefit’ only to heterosexual couples without being guilty of discrimination, because the homosexual couple is not a ‘couple’, and the distinction between employees who are ‘spouses’, in the said basic linguistic sense, and employees who are not, is a ‘distinction’ and not ‘discrimination’.

(e) The discrimination that the respondent alleges in this case, is merely an ‘appearance of discrimination’, and it derives from what clearly appears to be ‘social injustice’. However, every distinction in distributing benefits to employees involves ‘social injustice’; the principle of equality as a defence against discrimination was not intended to address this.

Were my opinion accepted, the petition would be granted and the judgment of the National Labour Court’s decision would be reversed.

Justice D. Dorner

1. The French philosopher, Michel Foucault, discussed the influence of social norms — reflecting what is accepted, ‘normal’, and what changes from time to time and from society to society — on the application of transcendental and formal laws (legal norms).

‘…le pouvoir de la Norme… est venu s’ajouter à d’autres pouvoirs en les obligeant à de nouvelles délimitations; celui de la Loi… et du Texte…

…le pouvoir de la norme fonctionne facilement a l’intérieur d’un système de l’égalité formelle, puisque a l’intérieur… la règle, il introduit… des différences individuelles’ (M. Foucault, Surveiller et Punir (1975) 186).

In translation:

‘… the power of social norms joins with other forces — the law and the text — and imposes on them new limitations…

… the power of social norms acts well within a system of formal equality, since it introduces… individual differences into… the rules.’

It seems to me that we cannot decide the petition before us without referring to the changes that have taken place with regard to social norms in Israel respecting homosexuality.

2. The respondent demanded that the petitioner recognize the man with whom he shares his life as a ‘spouse’ for whom he is entitled to receive an aeroplane ticket as of 1989, by virtue of the collective agreement. The Labour Court accepted the claim on the basis of the Equal Employment Opportunities Law (Amendment). The law, which came into effect on 2 January 1992, added to s. 2(a) of the Equal Employment Opportunities Law (hereafter — ‘the Equal Opportunities Law’) a prohibition against discrimination against employees because of their sexual orientation. The Labour Court held that the law changed the existing law and gave the respondent a right that he did not have before it was enacted, and that therefore he is entitled to receive the aeroplane tickets from the date that the amendment came into effect.

My colleague, Vice-President Barak, presumed — in the absence of any contrary argument by the respondent — that the respondent’s right does not derive from the collective arrangement itself. In Justice Barak’s opinion, the respondent’s right derives from the amendment, which reflects the principle of equality and the prohibition of discrimination against employees on the grounds of their sexual orientation.

My colleague, Justice Kedmi, is of the opinion that the expression ‘spouse’ cannot be given a different meaning in different laws. In his view, this expression has only one meaning: a man and a woman who unite for a joint life. This definition is accepted both from a linguistic viewpoint and a social viewpoint. It follows that without an express provision in the law that a same-sex life-partner is a ‘spouse’, a life-partner of the same-sex should not be given the benefits to which a ‘spouses’ is entitled on the basis of a provision prohibiting discrimination against the employee himself because of his sexual orientation.

3. I agree with the result reached by the Vice-President. However, in my opinion, the respondent’s right does not derive only from the Equal Opportunities Law, but also derives from the general principle of equality that has, for some time, been a part of our labour law.

In my view, the original version of the Equal Opportunities Law reflected the principle of equality but did not establish it. Thus, for instance, in Nevo v. National Labour Court [7], a provision that provided a different retirement age for men and women was disqualified on the basis of the principle of equality. This disqualification was based on the legal position prior to the Equal Retirement Age for Female and Male Employees Law, 5747-1987, which made the retirement age the same for women and men, while preserving the right of women employees to early retirement. Cf. also the remarks of Justice Mazza in Israel Women’s Network v. Government of Israel [5], at pp. 521-522 {150}.

Similarly, the amendment also did not change the existing law about equal rights for homosexuals, but merely gave expression to them. Consequently, had the respondent insisted on his original claim to receive the benefits for his spouse since May 1989, which was before the enactment of the amendment, I would have granted his request. Conversely, if not for the development of social norms in Israel which no longer totally oppose homosexual relations, it is possible that the Equal Opportunities Law would have been interpreted narrowly, similarly to the interpretation of my colleague, Justice Kedmi, which would not give the respondent the benefits that he claimed.

4. The principle of equality does not operate in a social vacuum. The question whether a certain case involves discrimination between equals, or whether it merely involves different treatment of different people, is decided on the basis of the accepted social outlooks. Justice Wilson discussed this in the Canadian case of R. v. Turpin (1989) [38], at p. 1331:

‘In determining whether there is discrimination on grounds relating to personal characteristics of the individual or group, it is important to look… to the larger social, political, and legal context…

Accordingly, it is only by examining the larger context that a court can determine whether differential treatment results in inequality.’

See also the remarks of Lord Denning in Dyson Holdings Ltd v. Fox (1975) [34], at p. 1033.

5. In the past, intimate relations between members of the same sex — relations that are considered a sin by all the monotheistic religions — constituted a criminal offence. Legitimacy was also given outside the criminal law to a distinction based on sexual orientation. Homosexuals (including lesbians) were fired from their jobs, were not accepted for positions requiring a security clearance, and were forbidden to raise their children. In the United States they were classified as psychopaths and were not allowed to immigrate into that country (The Editors of the Harvard Law Review, Sexual Orientation and the Law, 1990, at pp. 44, 65, 119, 132, 139, 150, 153).

This treatment has changed gradually. Legal literature criticized the definition of homosexual relations as a criminal offence, as well as discrimination against homosexuals in all areas of life, including areas of employment (R.A. Posner, Sex and Reason, Cambridge, 1992, at p. 308). Movements advocating the equality of rights for homosexuals were established. The trend today — which began in the seventies — is a liberal treatment of the sexual orientation of an individual, which is considered to be his private matter.

These changes in social outlook were given expression in law in the Western world, and homosexual couples have achieved equality, in accordance with the social norms in each country.

6. In European countries, there is no longer a criminal prohibition of homosexual relations. Legislation in the field of public law and labour relations in France, Denmark, Sweden and Norway prohibits discrimination because of sexual orientation. Laws in Sweden, Holland and Norway equate the rights and duties of homosexual couples with the rights and duties of heterosexual couples, including tax benefits and property division arrangements upon separation. The law in Sweden also recognizes the right of inheritance of a homosexual spouse (see L.R. Helfer, ‘Lesbian and Gay Rights as Human Rights: Strategies for a United Europe’ 32 Va. J. of Int’l L., 1991-92, 157, 168). Homosexuals have achieved the most recognition in Denmark. The law in that country allows ‘marriage’ between two persons of the same sex by registering their life-partnership relationship. This registration entitles homosexual spouses to social rights granted to married couples (M.H. Pedersen, ‘Denmark: Homosexual Marriages and New Rules Regarding Separation and Divorce’ 30 Jour. of Family L., 1991-92, 289).

Article 8 of the European Convention for the Protection of Human Rights also provides protection for homosexual relationships as part of the protection given to the right to privacy (see decisions of the European Court of Human Rights in the Norris Case (1988) [35]; and Modinos v. Cyprus (1993) [36]). Recently, a proposal was made to amend the Convention to expressly prohibits discrimination of any kind because of sexual orientation (Draft Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms).

7. Article 15(1) of the Canadian Charter of Rights and Freedoms, which is a part of the Constitution Act, provides protection for the right of every person to equality. In case-law this section has been interpreted as prohibiting discrimination on the basis of sexual orientation (Vriend v. Alberta (1994) [39]; Egan v. Canada (1993) [40]; Haig v. Canada (1992) [41]). By contrast, claims of homosexual couples for rights conferred on married couples were rejected. It was held that, since the purpose of marriage is raising children, the different treatment of the homosexual couple is not a breach of the charter (Haig [41], at p. 340; Layland v. Ontario (Consumer & Commercial Relations) (1993) [42], at p. 231).

8. In the United States the change has been more moderate. In some States there is still a criminal prohibition — which is not enforced — against having homosexual relations. As recently as 1967, the United States Supreme Court held that, since the homosexual has a psychopathic personality, as defined in the Immigration and Naturalization Act, his immigration into the United States was prohibited, and he was liable to immediate deportation (Boutilier v. Immigration Service (1967) [28]). Six years later, however, in 1973, the American Psychiatric Association rejected the definition of homosexuality as a psychiatric disorder, and, in 1981, the rule in Boutilier [28] was reversed. It was held that because homosexuality is not a psychiatric disorder, it does not indicate bad character, and therefore it does not constitute grounds for rejecting a naturalization request (Nemetz v. Immigration & Naturalization Service (1981) [29]).

During the 1980s, 139 judicial districts (States and local authorities) enacted laws prohibiting discrimination on the basis of sexual orientation in employment, housing and education (Note: ‘Constitutional Limits on Anti-Gay Rights Initiatives’ 106 Harv. L. Rev. (1992-93) 1905, 1923-25). The municipal laws of 12 municipalities allowed homosexual couples to register at the municipality as domestic partners, for the purpose of receiving social rights given to families (Bowman and Cornish, supra, at p. 1168).

At the same time, the courts in several States have recognized the rights of a same-sex spouse on the basis of the ‘functional test’. According to this standard, recognition of the homosexual couple depends on the purpose of the law conferring rights on a ‘family’ or ‘spouse’. The homosexual spouse will enjoy the rights conferred by law, if this is consistent with the law’s purpose.

Thus, for instance, the New York State Court of Appeals recognized the life-companion of a deceased tenant as a protected tenant by virtue of his being the spouse of the deceased. It was held that, in view of the purpose of the tenant protection law, the difference between a heterosexual couple and a homosexual couple is irrelevant. If the life-companion were not recognized as the spouse, the purpose of the law would be frustrated, in that a remote relation would be entitled to the accommodation, whereas the person who shared his life with the deceased would be expelled from the apartment where he had lived for years (Braschi v. Stahl Associates Co. (1989) [30], at pp. 788-789; see also Yorkshire Towers Co. v. Harpster (1986) [31]; Two Associates v. Brown (1986) [32]; E. 10th St. Assoc. v. Estate of Goldstein (1990) [33]).

The accepted outlook in the United States was summarized in the article of Bowman and Cornish, supra, at pp. 1175-77, as follows:

‘… there is a general tendency to look at the characteristics of the particular relationship to determine whether it qualifies as a family for the purposes of the particular statutory scheme, especially when a statute uses a term such as “family”, “spouse”, or “parent” without defining it.

…

… Courts have identified certain elements as indicia of a “family-like” relationship, including financial commitment, exclusivity of the relationship, the reliance members place on each other, the length of the relationship, and the presentation of the relationship to the outside.’

9. The law in Israel regarding homosexuals reflects the social changes that have occurred over the years.

Male homosexual relations were, in the past, included in the offence of deviations from nature, an offence punishable by 10 years’ imprisonment (section 351(3) of the Penal Law, 5737-1977, which was a new version of section 152(2) of the Criminal Law Ordinance, 1936, enacted by the Mandate). This prohibition was never enforced. As early as the year 1963, in CrimA 224/63 Ben-Ami v. Attorney-General [20], at p. 238, the court held that this offence has no basis in our present reality. Speaking for the court, Justice H. Cohn said:

‘Unnatural sexual relations, and homosexual relations, when done in private between consenting adults, are not acts involving moral turpitude, nor do they indicate that the persons who do them are criminals deserving of punishment. These are offences that we inherited from ancient systems and past generations and they have no place in the criminal law of a modern state… ‘Nature’, as such, no longer needs the protection of the criminal law. What needs, and is therefore entitled to, their protection are the human body and human dignity and liberty… one of the basic rights of the citizen is that the State will not interfere in the private life and his behaviour behind closed doors…’

Nonetheless, for many years the offence remained the law and was not repealed. Even in 1980, when the draft Penal Law (Amendment no. 14), 5740-1980 — which, according to its explanatory notes, was intended to replace the provisions of the Mandatory law with legislation suitable to the reality of our times — was tabled in the Knesset, it was suggested that the prohibition against homosexuality remain. Notwithstanding, it was proposed that the punishment for this offence be reduced to one year’s imprisonment. The explanatory notes said: ‘The question whether in our time there is a justification for the interference of the criminal law in sexual acts done between consenting adults in private is a controversial one’ (ibid., at p. 392).

This proposal did not reach the Knesset, and the criminal prohibition was repealed eight years later in the Penal Law (Amendment no. 22), 5748-1988.

This formal repeal reflects the current position of Israeli society that the law (as opposed to religion) should be indifferent to the sexual orientation of a person, so long as he does not harm anyone. There is widespread consensus that homosexuals should not be restricted or subject to discrimination (Rubinstein, The Constitutional Law of the State of Israel, supra, at p. 334). The amendment to the Equal Opportunities Law reflects this approach. M. Virshowski MK referred to this during the debate proposing the law at first reading:

‘… with this we are in fact establishing the rules accepted today in the enlightened world and allowing people to live in accordance with their sexual orientations, and not to suffer for them or be oppressed because of them’ (Knesset Proceedings 119, 1991, at p. 1034).

10. In our case, it is clear that there is a difference between a homosexual couple and a heterosexual couple. However, a ‘difference’ justifying different treatment must be relevant (Boronovski v. Chief Rabbis [16], at p. 35; HCJ 720/82 Elitzur Religious Sports Association, Nahariyah Branch v. Nahariyah Municipality [21], at p. 21; HCJ 4169/93 [22]).

The proper test is therefore to consider the relevance of the sexual orientation to the benefit conferred on the spouse. The functional test meets this requirement. According to this test, no distinction should be made between homosexual couples and heterosexual couples, if the spousal relationship between the spouses of the same sex meets the criteria that realize the purpose for which the right or benefit is conferred. By contrast, when the sexual orientation is relevant to realizing the purpose of the benefit, for instance if the purpose is to encourage having children, withholding the benefit from a same-sex spouse will not constitute discrimination. Justice L’Heureux-Dubé discussed this distinction in the judgment of the Canadian Supreme Court in Canada (A.G.) v. Mossop (1993) [43], at p. 560:

‘… “family status” may have varied meanings depending on the context or purpose for which the definition is desired… the Tribunal concluded that the potential scope of the term “family status” is broad enough that it does not prima facie exclude same-sex couples. In making this finding, the Tribunal used the proper interpretational approach, considered the purpose of the Act and the values at the base of the protection of families.’

Cf. also NLC 54/85-0 [25]. In that case it was held that a recognized partner is exempt from paying insurance premiums under s. 8 of the National Insurance Law [Consolidated Version], 5728-1968, exempting ‘a married woman whose husband is insured’ from making insurance premiums. Justice Goldberg, who wrote the judgment, explained that in view of the purpose of the law to place a recognized partner on an equal footing with the ‘lawful wife’, and in view of the definition in the law of the expression ‘his wife’ including a ‘recognized partner’, the recognized partner must also be regarded as a ‘married woman’.

11. Public authorities are first and foremost subject to the principle of equality, but this principle also applies in the field of labour relations in general (see, for instance, S. Almog, ‘A Guide to Labour Law’ The Employee’s Guide, 1994, 35-36). The employer’s contractual freedom retreats when faced with the employee’s right to equality (Flight Attendants Association v. Hazin [24]; HCJ 410/76 Herut v. National Labour Court in Jerusalem [23]; Nevo v. National Labour Court [7], ibid.). The legislation prohibiting discrimination in labour relations reflects this principle, but did not create it. See also F. Raday, ‘The “Privatization of Human Rights” and the Misuse of Power’ 23 Mishpatim, 1994, at pp. 21, 41.

12. In our case, the aeroplane ticket was not meant for a spouse who is married to the employee, and in any event the purpose of the benefit was not to encourage a lifestyle within a traditional family framework. The benefit is given to the employee for the spouse with whom he shares his life de facto. Indeed, although the petitioner did not intend the arrangement to apply to same-sex spouses, the sex of the spouse is not relevant to the purpose of giving the benefit.

Benefits for a spouse are a significant part of employees’ salaries. Professor Elbin’s calculations found that in the United States 27% of employees’ salary is made up of benefits (in his article, supra, at pp. 1068-1069).

In Israel, benefits (including ‘related conditions’) may lead even to the doubling of the salary (see the monthly periodical Calculation, M. Katzin, ed., October 1994, 50). A significant part of these benefits — such as pension plans and life insurance — are given for the spouse, including the recognized partner, and to deny benefits to a spouse with whom a homosexual lives is tantamount to reducing his salary. Consequently, denying these benefits is discrimination against the employee himself. Professor Elbin said of this:

‘Unable to marry, gay couples are generally excluded from the benefits afforded married couples in our society, including benefits commonly accorded spouses in employee and public benefit programs. For gay employees, the result is total compensation lower than that of other married co-workers performing the same job.

Domestic partner provisions lessen the economic discrimination that results from the ban on same-sex marriage.

…

… An employer who does not offer domestic partner benefits is, in fact, paying less in total compensation than he should be because employees with domestic partners are not being compensated equitably’ (supra, at 1068-69, 1082).

In the case before us, denying the benefit to the respondent would lead to a reduction of his salary in the amount of the price of the ticket, and there is no justification for this.

For these reasons, I agree that the petition should be denied.

Petition denied, by majority opinion (Vice-President A. Barak and Justice D. Dorner), Justice Y. Kedmi dissenting.

30 November 1994.

[*] NLC 3-160/53 El-Al Airlines v. Danielowitz IsrLC 26 339.

* Ibid., p. 349.

Full opinion:

Attorney General v. National Labour Court

Case/docket number:

HCJ 1074/93

Date Decided:

Monday, April 10, 1995

Decision Type:

Original

Topics:

Attorney General v. National Labor Court.pdf

Strikes

Abstract:

Facts: The second petitioner, the Bezeq Corporation, had a monopoly in the field of providing telephone services in Israel. When the Government decided to allow competition in this field, the General Federation of Labour feared that the restriction of the monopoly would affect the jobs and rights of Bezeq’s employees, and it therefore gave notice of a strike. The petitioners applied to the Regional Labour Court for an injunction against the strike. The injunction was given, but the National Labour Court overturned it on appeal. The petitioners then petitioned the High Court of Justice to set aside the judgment of the National Labour Court.

Held: Strikes can be divided into three categories: (1) economic strikes, which oppose an action that clearly and immediately harms employees, and are considered legitimate; (2) political strikes, which oppose a general policy of the Government, and are not considered legitimate; (3) quasi-political strikes, which oppose an act that is not directly connected with terms of employment, but do affect them directly. Quasi-political strikes only justify a short protest.

In this case, it was not proved that the restriction of Bezeq’s monopoly would clearly and immediately harm Bezeq’s employees. Therefore at most it could be a quasi-political strike, which justifies a short protest strike. Therefore the Regional Labour Court had been correct in issuing an injunction against the extended strike.

Petition granted.

Voting Justices:

Levin, Dov

Primary Author

majority opinion

Cheshin, Mishael

Author

concurrence

Tal, Tzevi Eliyahu

Author

concurrence

Full text of the opinion:

HCJ 1074/93

1. Attorney-General

2. Bezeq, the Israel Telecommunication Corporation Ltd

1. National Labour Court, Jerusalem

2. General Federation of Labour in Israel

3. Bezeq Employees’ Joint Representation

4. All Bezeq Employees

The Supreme Court sitting as the High Court of Justice

[10 April 1995]

Before Justices D. Levin, M. Cheshin, Ts. E. Tal

Petition to the Supreme Court sitting as the High Court of Justice.

Petition granted.

Basic Laws cited:

Basic Law: Human Dignity and Liberty, 5752-1992, ss. 1, 2, 4.

Statutes cited:

Collective Agreements Law, 5717-1957.

Contempt of Court Ordinance, 1937.

Labour Court Law, 5729-1969, s. 30(a).

Procedure (Attendance of Attorney-General) Ordinance [New Version], 5728-1968, s. 1.

Resolution of Labour Disputes Law, 5717-1917, ss. 2, 5A, 5B, 37A, chapter 4.

Telecommunications Law, 5742-1982, ss. 50, 51, 60.

Israeli Supreme Court cases cited:

[1] HCJ 3679/94 National Association of Managers and Authorized Signatories of First International Bank of Israel Ltd v. Tel-Aviv Labour Court [1995] IsrSC 49(1) 573.

[2] HCJ 51/69 Rudenitsky v. Great Rabbinical Court [1970] IsrSC 24(1) 704.

[3] HCJ 550/89 Attorney-General v. Parole Board [1989] IsrSC 43(2) 739.

[4] HCJ 910/86 Ressler v. Minister of Defence [1988] IsrSC 42(2) 441; IsrSJ 10 1.

[5] HCJ 2148/94 Gilbert v. Chairman of Commission of Enquiry for examining the Massacre in Hebron [1994] IsrSC 48(3) 573.

[6] CA 506/88 Shefer (a minor) v. State of Israel [1994] IsrSC 48(1) 87; [1992‑4] IsrLR 170.

[7] HCJ 73/85 ‘Kach’ Party v. Knesset Speaker [1985] IsrSC 39(3) 141.

[8] CA 593/81 Ashdod Automobile Enterprises Ltd v. Chizik (dec’d) [1987] IsrSC 41(3) 169.

[9] CA 25/71 Feinstein v. High School Teachers’ Association [1971] IsrSC 25(1) 129.

[10] HCJ 525/84 Hativ v. National Labour Court [1986] IsrSC 40(1) 673.

[11] HCJ 1520/91 Wilensky v. National Labour Court [1992] IsrSC 46(5) 502.

[12] HCJ 675/84 General Federation of Labour in Israel v. Tel-Aviv Labour Court [1985] IsrSC 39(3) 13.

[13] HCJ 289/79 Israel Ports Authority v. National Labour Court [1980] IsrSC 34(2) 141.

[14] ALCA 7112/93 Tzudler v. Yosef [1994] IsrSC 48(5) 550.

[15] HCJ 262/62 Peretz v. Kfar Shmaryahu Local Council [1962] IsrSC 16 2101; IsrSJ 4 191.

[16] HCJ 840/79 Israel Contractors and Builders Centre v. Government of Israel [1980] IsrSC 34(3) 729.

[17] HCJ 453/94 Israel Women’s Network v. Government of Israel [1948] IsrSC 48(5) 501; [1992-4] IsrLR 425.

Labour Court cases cited:

[18] NLC 37/4-3 Katza Workers’ Committee v. Katza Co. Ltd [1977] IsrLC 8 421.

[19] NLC 52/4-3 (unreported).

[20] NLC 36/4-5 Ginstler v. State of Israel [1976] IsrLC 8 3.

[21] NLC 46/4-7 Tel-Aviv-Jaffa Municipality Lifeguard Committee v. Tel-Aviv-Jaffa Municipality [1986] IsrLC 17 264.

[22] NLC 52/4-37 United Mizrahi Bank Ltd v. Bank Mizrahi Workers Union [1992] IsrLC 25 53.

English cases cited:

[23] Mercury Communication v. Scott-Garner [1984] Ch. 37 (C.A.).

Dutch cases cited:

[24] Re Keijzer v. Peters N.V. 3 I.L.L.R. 306 (1977).

[25] N. V. Dutch Railways v. Transport Unions FNV, FSV and CNV 6 I.L.L.R. 3 (1986).

Finnish cases cited:

[26] Metal Industry Employers’ Federation v. Metal Workers Union 9 I.L.L.R. 522 (1988).

For the first petitioner — M. Rubinstein, director of the Civil Department at the State Attorney’s Office.

For the second petitioner — S. Bechor.

For the second respondent — A. Mei-Tal, R. Kariv.

For respondents 3-4 — A. Feingold.

JUDGMENT

Justice D. Levin

1. We have before us a petition of the first and second petitioners against the judgment of the National Labour Court in NLC 53/4-4,[*] in which the National Labour Court allowed the appeal of respondents 2-4 and held that an injunction should not be given against the respondents in a strike that they held, since according to its ruling, the strike was legitimate.

The facts relevant to the case

The main facts are not in dispute, but clear details of them, as set out by his honour the President of the National Labour Court in his judgment, are necessary in order to consider the dispute and its solution properly and precisely.

2. The second petitioner (hereafter — Bezeq) operates under a licence granted to it under the Telecommunications Law, 5742-1982, and it is a ‘public service’ within the meaning thereof in chapter four of the Resolution of Labour Disputes Law, 5717-1957. Sections 50 and 51 of the Telecommunications Law granted Bezeq exclusivity in various fields of operation, and the following is the wording of those sections:

‘50. A general licence to carry out telecommunications operations or to provide national telecommunications services on a national telephone network or to provide international telecommunications services on an international telephone system shall only be given to one company; for this purpose, “national telephone network” — a national cable infrastructure, wireless installations and telecommunications installations by means of which telephone services and additional telecommunications services are provided to the public.

51. (a) A special licence shall not be given with regard to the equipment that the Ministry of Telecommunications dealt with before the passing of this law in the Knesset (hereinafter — the equipment of the Ministry) or with regard to identical equipment that may replace it.

(b) A special licence shall not be given with regard to equipment similar to the equipment of the Ministry that will replace it or that is designated to replaced it, until the Minister has consulted with the company and decided, after considering inter alia the interest of the company in carrying out the action or in providing the service to which the licence refers, that the public interest requires the licence to be given to whoever asked for it.’

3. The Government decided to limit this exclusivity by opening up various sectors in the field of telecommunication services to competition. First this was done by a decision of the Minister of Telecommunications at that time, and shortly before the dispute before us this intention was expressed in the draft State Economy Arrangements (Legislations Changes for Achieving Budget Targets) Law, 5753-1992, which states in section 26:

‘In section 50 of the Telecommunication Law, 5742-1982, the words “or to provide international telecommunications services on an international telephone system” shall be deleted, and at the end shall be added “but a mobile radio-telephone network shall not be regarded as part of the national telephone network”.’

4. Respondents 2-4, under the leadership of the second respondent (hereafter — the General Federation), opposed these changes on the grounds that revoking the exclusivity will affect the terms of employment of Bezeq employees and lead to the dismissal of many of them. Their request was to enshrine in an agreement, before revoking the exclusivity, the question of the rights of employees, both those who would continue to work for Bezeq and those who would be forced to leave it as a result of that change.

The General Federation based its main arguments on that fact that when the Telecommunications Law was passed, the commencement of the law was made conditional, inter alia, on the signing of a collective agreement with regard to the rights of Bezeq’s employees, and the transfer of employees from the civil service to the employment of Bezeq (s. 60 of the Telecommunications Law).

5. On 14 May 1992, the Federation of Clerks delivered to the Chief Director of Labour Relations and to Bezeq a ‘Notice of a Strike’, stating that the notice was given under sections 5A and 5B of the Resolution of Labour Disputes Law.

6. On 12 July 1992, Bezeq employees began sanctions in accordance with the decision of Bezeq’s Workers Council, and several days later, on 20 July 1992, the Central Committee of the General Federation approved, for the second time, ‘a labour dispute at the Bezeq Corporation, because of the granting of licences to private enterprises and the transfer of work to contractors, a reduction in the definition of the general licence and a privatization of the “Bezeq” corporation.’

7. On 16 July 1992, Bezeq applied to the Tel-Aviv-Jaffa Regional Labour Court in an application for a temporary and permanent injunction to stop the sanctions. On 17 July 1992, an order was given as requested, and this was extended several times.

8. It should be mentioned, just as the National Labour Court emphasized at the beginning of its judgment in a condemnation of their behaviour, that despite the temporary injunction given against them, Bezeq’s employees carried out sanctions that compelled Bezeq to ask the court twice for orders under the Contempt of Court Ordinance (LC 53/48-2; LC 53/48-3), and an order was even made in this respect. Again, after judgment was given in the main proceeding, which was the subject of the appeal to the National Labour Court, Bezeq was compelled to commence contempt of court proceedings.

This behaviour of Bezeq’s employees deserves strong condemnation, and we will refer to it and mention it below.

9. A further fact that is relevant in this case is the determination that before the hearing of the appeal before the National Labour Court, the sanctions taken by the employees stopped.

10. As stated, the General Federation appealed the decision of the Tel-Aviv-Jaffa Regional Labour Court to the National Labour Court in Jerusalem, which allowed the appeal and set aside the judgment of the Regional Labour Court and the injunction given by it, in so far as it related to the General Federation being forbidden from declaring the strike.

The judgment of the Regional Labour Court

11. After it considered the matter on its merits and in depth, the Regional Labour Court found that the strike of the Bezeq employees was not legitimate, since the reason for it could not be the subject of a collective agreement. In addition, the Regional Labour Court held that the strike was ‘not protected’, with all that this implies, as set out in chapter four of the Resolution of Labour Disputes Law.

In its judgment, the Labour Court considered the ‘balance of convenience’, and on this basis it held that the general public, and also the Bezeq company itself, should be spared substantial harm. The Labour Court therefore ordered the Bezeq Employees’ Representation to maintain full industrial quiet and refrain from a strike or sanctions, and it also ordered the General Federation to order the Bezeq Employees’ Representation and its employees to work fully and without interruption.

The appeal to the National Labour Court

12. The General Federation appealed the judgment of the Regional Labour Court. In essence, the General Federation argued that the strike was declared lawfully and held lawfully, and that it should not be regarded as a ‘political strike’ or an ‘unprotected strike’. In its opinion, the strike does not contradict the ‘industrial quiet’ clauses in the binding agreements.

The National Labour Court considered in depth the many and complex questions that were raised before us, and held, unanimously, but for different reasons, that the appeal should be allowed, and that the judgment of the Regional Labour Court, including the injunction in it, in so far as it related to the prohibition against a strike being declared by the General Federation, should be overturned (paragraph 25 of the judgment of his Honour President M. Goldberg).

The judgment of the National Labour Court

13. The National Labour Court referred to the definition of strikes in case-law, and held that it ought to be changed, even if this involved a deviation of the National Labour Court from its own rulings. This is what was said:

‘In these days, when the legislator intervenes more than ever in employment terms that are determined or that may be determined in agreements or collective agreements… and has become an active partner in determining the terms of employment of all employees, particularly in the public sector… it is highly questionable whether the definition of the term “strike”, as reflected in case-law, can be allowed to stand as it is.’[†]

The court went on and held, for the purpose of the term ‘unprotected strike or work stoppage’, as defined in section 37A of the Resolution of Labour Disputes Law, that:

‘… it is proper that a strike in the civil service directed against a change, that may significantly affect the terms of employment of the employees in a certain enterprise, and which is intended to ensure the rights of the employees as a result thereof, as long as it is not against the law, should not fall into the category of an “unprotected strike” in the civil service, even if it is not the employer who initiated the change.’[‡]

Therefore the National Labour Court reached the conclusion, in the majority opinion written by the learned President, that the question as to whether we are dealing with a ‘political strike’ should be answered in the negative.

The National Labour Court held, at the end of the hearing, that not every strike that is not against the Government as sovereign, rather than as employer, is a ‘political strike’, and in consequence thereof it decided that the strike carried out by the Bezeq employees was not an ‘unprotected strike’ within the meaning thereof in the Resolution of Labour Disputes Law.

14. In order to complete the picture, alongside the reasoned judgment of the majority of the panel of the National Labour Court we should mention the minority judgment of the learned Vice-President, Justice S. Adler, who, although he agreed with the outcome, did so for reasons that are entirely different from those of the majority. The learned Vice-President was of the opinion that the strike in this case was a ‘mixed strike’, partly political and partly economic, and it was mainly political in nature, since:

‘… its tangible and immediate purpose is to change the policy of the Government and the Knesset…’[§]

The agreement of the learned Vice-President to cancel the order made against the General Federation was based merely on the fact that the order had achieved its purpose, and the employees had returned to work. When the appeal of the General Federation was allowed in the National Court, the petitioners submitted this petition, which is now before us.

The main arguments of the petitioners

15. The petitioners recognize the fact that labour law is within the expertise and sole jurisdiction of the Labour Court. They are also aware of the ruling, which was made by this court and which had been upheld more than once, that the High Court of Justice does not sit as a court of appeals on the judgments of the National Labour Court, and it will intervene in the judgments of the National Labour Court only when it transpires that there is a substantial mistake of law, and justice requires us to intervene in order to correct it (HCJ 3679/94 National Association of Managers and Authorized Signatories of First International Bank of Israel Ltd v. Tel-Aviv Labour Court [1], at p. 584, and the many citations set out in the judgment).

Notwithstanding, they are of the opinion that the case before us does indeed fall into the category of rare and special cases where our intervention is justified.

16. According to the petitioners, in the ruling made by the National Labour Court in its judgment there is a fear that a mistake of law may become entrenched and undesirable norms may be adopted in a most important subject, which is one of the foundations of collective labour law and labour relations in the economy. The petitioners argue that a strike directed at the government to achieve political aims, when the employer is usually a third party who cannot agree to the demands, has been called a ‘political strike’ in Israeli case-law, and it is considered a forbidden strike. In the opinion of the petitioners, the strike which is the subject of the case before us is indeed of this kind, and it follows that it does not fall within the sphere of labour law, since its purpose is to achieve objectives that are not legitimate ones in the field of labour law. In addition, the petitioners argue that the provisions of section 37A of the Resolution of Labour Disputes Law distinguish between an unprotected strike relating to salary and social benefits, and a strike which is not of this kind, but this is only with regard to the formal terms stipulated in the law and not in order to expand the concept of the strike and to grant legitimacy to a ‘legal strike’. According to them, the strike still needs to be within the field of labour law and within the framework of a labour dispute, it must be directed against the employer and it must relate to terms of employment or labour relations which are not salary or social benefits — for these two subjects are only some of the matters that may be the basis for a labour dispute, as defined in section 2 of the Resolution of Labour Disputes Law. In this respect, the petitioners argue that a change of the general licence of the Bezeq Corporation and the legislation proceedings for amending the Telecommunications Law are not a part of ‘work conditions’ and they are not a part of ‘labour relations’, since they cannot be the subject of a collective agreement within the meaning of this term in the Collective Agreements Law, 5717-1957. Finally, the petitioners point out that the conclusion of the National Labour Court, in so far as it relates to the widening of the freedom to strike, has no parallel in foreign law.

The main arguments of the respondents

17. The respondents argue that the judgment of the National Labour Court, which is the subject of this petition, was made lawfully and it is right and just on the merits. Therefore, there is no reason for this court to set it aside.

18. The respondents argue before us that it should not be assumed that organized opposition of employees to a harmful action of the Government should not be regarded as a strike, but rather as a forbidden act, merely because the initiative for the harmful act does not proceed from the direct and formal employer. They argue that in the prevailing legal situation in public services, the formal employer has almost no power in matters relating to the determination of employment terms and employees’ salaries, and therefore the formal distinction with regard to the identity of the direct employer cannot be implemented in the present circumstances.

The respondents further argue that just as every citizen and every group of citizens may demonstrate against the implementation of any Government policy, as part of their basic rights in our democratic regime, so too employees have the freedom to associate in order to protect their place of work and their livelihood. They argue that the only practical expression of this freedom to associate is the freedom to strike, i.e., not to work.

Therefore, in view of the aforesaid, the respondents ask the court to cancel the show cause order, to dismiss the petition and not to intervene in the judgment of the National Labour Court.

Preliminary arguments

19. This is the factual and legal background to this petition, on the basis of which a show cause order was issued, and our deliberation will be based on this. But first I must remove from our path two preliminary arguments raised before us by counsel for the General Federation, according to which we are asked to dismiss this petition in limine.

20. First, the General Federation argues before us that section 30(a) of the Labour Court Law, 5729-1969, does not grant the first petitioner (hereafter — the Attorney-General) the authority to challenge the decision of the National Labour Court before this court. It further argues that the petition under discussion raises an academic question that is dead and buried, since the dispute that is the subject of the strike under consideration has already been resolved.

The two arguments should be rejected.

21. With regard to the argument of the General Federation that section 30(a) of the Labour Court Law does not give the Attorney-General the authority to challenge the decision of the National Labour Court before this court, the answer is as follows. Indeed the text of the aforesaid section 30(a) grants the authority to intervene in proceedings before the Labour Court, and it is with this that we are concerned, but what is stated does not imply what the Attorney-General does not have authority to apply to this court.

First, when the Attorney-General became a party in the National Labour Court, he acquired standing both before the court with procedural jurisdiction and also before the court with review jurisdiction. No impropriety should be attached to the fact that this standing should continue to exist also before us as the highest court of review, in order to examine the arguments of the Attorney-General that were rejected in a lower court, which in this case is the National Labour Court.

Second, it seems to me that it is fitting that the Attorney-General, as the person who represents the public interest, should petition the High Court of Justice in cases where he thinks that one of the branches of government has erred in a matter which he thinks is of supreme public importance. This approach is based on two lines of reasoning: first, the Attorney-General has the authority to become a party to a petition filed by someone else, by attending, as in the present case, in the High Court of Justice, by virtue of section 1 of the Procedure (Attendance of the Attorney-General) Ordinance [New Version] (for recognition by this court of a proceeding of attendance that was similar in its circumstances, see: HCJ 51/69 Rudenitsky v. Great Rabbinical Court [2], at p. 711; HCJ 550/89 Attorney-General v. Parole Board [3]).

Third, opening the doors of this court even to a ‘public petitioner’ who can show a general public interest that justifies proper consideration applies a priori to the Attorney-General within the framework of his authority (see Dr Z. Segal, The Right of Standing in the High Court of Justice, Papyrus, second edition, 1994, at pp. 71, 268-270; and also diverse case-law: HCJ 910/86 Ressler v. Minister of Defence [4]; HCJ 2148/94 Gilbert v. Chairman of the Commission of Enquiry for examining the Massacre in Hebron [5]).

22. With regard to the argument about the academic nature of the question under discussion, the remarks of the Vice-President of the Supreme Court, Justice Elon, in CA 506/88 Shefer (a minor) v. State of Israel [6], at p. 98 {179}, are apt:

‘Usually we do not become involved in deciding an issue that is purely academic. But there is no rule that does not have exceptions… This is because usually… the decision must be given without delay, as required by the nature of the case and the facts, and the reasons relate to the heart of the matter and the reasoning for it, so that we will know and have established the law on each of the issues before us when it arises and comes before us once more.’

Or, as Justice Barak chose to express it in HCJ 73/85 ‘Kach’ Party v. Knesset Speaker [7], at p. 146:

‘It is true that this court does not consider questions that are not practical, and it does not give an opinion that is merely academic on questions of theoretical application, but this rule does not apply when the nature of the event, to which the petition refers, is such that the judicial determination of it may come after the event has taken place, but there is a reasonable likelihood that similar events will happen in the future…’

So we see, and the experience of life teaches us, that legal issues of a special and flexible nature from the past that appeared academic at the time became important and urgent practical questions at a later date. For this reason, both because of the direct relevance of the questions that are at the heart of the structure of the constitution and labour law in Israel, and also because of the doubt as to whether this dispute and ones like are merely events of the past, I think it appropriate to consider in detail the question before us.

The freedom to strike

23. In order to decide whether the sanctions taken by the employees in this case should be considered a ‘strike’, within the definition of this term for the purposes of labour law, we must first consider the status of this ‘institution’.

24. It would appear that there is no longer any basis to question the lofty and protected status of the freedom to strike. More than once we has emphasized that:

‘… the “right” to strike has acquired for itself a firm foothold in Israeli legislation and case-law’ (CA 593/81 Ashdod Automobile Enterprises Ltd v. Chizik (dec’d) [8], at p. 190).

In the eloquent language of Justice H. Cohn in CA 25/71 Feinstein v. High School Teachers’ Association [9], at p. 131:

‘It may be said that there is nothing further from the mind of the Israeli legislator than the desire to eliminate the institution of the strike: if an English judge, in a recent decision, described the strike as a ‘holy cow’, then here it should be regarded at least as a kind of revered tradition, such that it can no longer be questioned.’

Moreover, in an age where we are guided, both in legislation and in case-law, by the Basic Law: Human Dignity and Liberty — and its constitutional values — it would appear that the ‘strike’, which we have always considered to be included among the basic freedoms not written in the statute book and which was described as something that ‘in essence belongs not to the sphere of “rights” but to the sphere of “freedoms” which are subject to binding restrictions...’ (See NLC 37/4-3 Katza Workers’ Committee v. Katza Co. Ltd [18]; NLC 52/4-17 (unreported) [19]; NLC 53/4-4[**]), will in the future find refuge in the value of ‘human dignity’ that is enshrined in this basic law (sections 1, 2 and 4 of the Basic Law: Human Dignity and Liberty, and for more detailed analysis, see the book of (Vice-President) Prof. A. Barak, Legal Interpretation, vol. 3, “Constitutional Interpretation”, Nevo, 1994), and also his article ‘Human Dignity as a Constitutional Right’, 41 Hapraklit, 1993-1994, 271, at p. 279).

It is clear, then, that the focus of our consideration is a freedom that has the status of a constitutional right and is well-established in the different branches of Israeli law — a status that grows stronger all the time. Nonetheless, and precisely for this reason, when we are required to determine which acts of protest adopted by workers in their struggle will find refuge under the protection of the ‘strike’, the courts and labour courts must look to the definition of ‘the strike’, with its changing facets and nuances.

Definition of the ‘strike’ — the status of a strike against the sovereign authority

25. In their petition, the representatives of Bezeq and the Attorney-General reiterated their initial and fundamental argument that they argued before the National Court, that an indispensable condition for a concerted action of employees to be recognized as a ‘strike’ for the purpose of labour law is that it is declared within the framework of a struggle to achieve employees’ demands from an employer — with regard to their terms of employment. Counsel for the petitioners argues that this condition is not fulfilled in our case, where the demands of the Bezeq employees are not directed at their employer — the Bezeq Corporation — at all, but at the Government. In their opinion, since this is the case, the actions taken do not fall within the definition of a ‘strike’, and certainly these actions should not be granted legitimacy.

Indeed, as his honour, the learned President of the National Labour Court, Justice Goldberg, pointed out in his judgment:

‘… not infrequently have the Labour Courts, and the civil courts, expressed themselves in such a way that it may be understood that only a strike against an employer, in matters that are a subject for collective bargaining and a collective agreement, is a “strike” within the meaning thereof in labour law.’[††]

See the development of this definition: NLC 36/4-5 Ginstler v. State of Israel [20], at p. 15; NLC 46/4-7 Tel-Aviv-Jaffa Municipality Lifeguard Committee v. Tel-Aviv-Jaffa Municipality [21], at p. 269; HCJ 525/84 Hativ v. National Labour Court [10], at p. 702; NLC 52/4-37 United Mizrahi Bank Ltd v. Mizrahi Bank Workers Union [22], at pp. 62-63.

26. One might ask why we need all this repeated study and examination of the nature of a ‘strike’, when we have established the traditional nature of the definition of the ‘strike’, which is directed against the employer only, whereas in the case before us it is directed against the sovereign authority? To this questioner we will reply that there are sound reasons for this investigation and examination, for we are not divorced from the people and we are charged with seeing the current reality of our times, which changes and varies continually, both in general and also in the field of labour relations. So it would appear that it was not an accident that the legislator chose not to define the term ‘strike’, except in chapter 4 of the Resolution of Labour Disputes Law. It is clear that by doing this the legislator expressed the opinion that:

‘… the concept strike is not one that has a single meaning, which applies at all times, for every purpose and in every situation of a development of labour relations and labour law’ (NLC 36/4-5 [20], at p. 27).

And in the words of Justice Goldberg (President of the National Labour Court) in one of his articles:

‘… it may be good that this matter has been left to the discretion of the courts, for the reason that the needs and situations in the area of labour relations and labour law are dynamic and changing, and a statutory definition, which by its very nature is inflexible, does not change with the passage of time, and may well become a burden when the courts are required to apply the law…’ (M. Goldberg, ‘The Strike in Statute, Collective Agreements and Case-law’, Hapraklit, Special edition celebrating 25 years of the Bar Association, 1987, at pp. 51-52, cited in NLC 53/4-4, 25, supra[‡‡]).

27. We cannot ignore the changes that have been taking place for some time in the field of labour relations in the Israeli economy. It is clear that the Government is both an active and influential factor in the field of labour relations and in the negotiations about labour agreements. This interventionism has many, different causes, and it will suffice if we mention that, in addition to being one of the largest employers in the economy, the State intervenes in the field of labour relations as an active and highly influential factor in ‘package deals’, in wages, taxes and pricing policy.

In this respect, the following remarks, which reflect a familiar reality, are correct:

‘… the fact that the Government has become an active partner in negotiations regarding work conditions, justifies the expansion of the employees’ protest base, so that it may extend also to attack the policy of the additional partner to the negotiations and not merely the employer, as was the case in the past, which reflected the reality that prevailed then’ (Prof. R. Ben-Israel, ‘The Political Strike’, Iyyunei Mishpat, 1986-1987, 609, at p. 624).

It is therefore proper to consider this development when we seek to formulate an up-to-date approach to the important issue in the case before us.

The political strike — classification and status

28. At the heart of the petition before us lies the argument of the Attorney-General that the strike was directed against a specific provision in the Telecommunication Law, 5742-1982, which granted the Bezeq Corporation a monopoly in certain fields. The policy adopted by the State in putting forward the aforesaid draft law to correct the situation in a very limited manner was intended to bring about a measure of change in an undesirable monopolistic situation, and provide for the possibility of free competition in the field of international telephone services and mobile telephone services.

Opposition to this policy, when it is in the process of being legislated in the Knesset, is, in the State’s view, a manifestly political strike, which is regarded by Israeli case-law as a strike that undermines our democratic process, and as such should be regarded as a strike that is not legitimate. This approach, to the extent that it relies on a proper factual basis, finds support in our case-law, and I need only refer to the remarks of President Shamgar in Hativ v. National Labour Court [10] and his decisive approach:

‘The political strike — which attempts to force an act or an omission on government authorities that they would not have tolerated had it not been for the strike — raises many constitutional and social problems: in a democratic regime, this opens the gates for strikers to impose their will on democratically elected institutions, and to direct processes by means of the coercive power of organizations outside the government and even of minority groups who in practice have such coercive power. There may be countries where a national electric power cut, including for electricity being supplied to hospitals and nurseries, can compel the legislator to enact any legislation required of him. But there is no doubt that, together with the collapse of morality, this also harms most seriously the functioning of democracy as such’ (ibid., at pp. 703-704).

This approach of the President has won widespread approval, and it is supported by the opinions of scholars in Israel and abroad (see Professor F. Raday’s article: ‘Political Strikes and Fundamental Change in the Economic Structure of the Workplace’, 2 Hamishpat, 1995, at pp. 159-177).

29. This issue is a delicate one and a very significant one in labour relations and labour law, as they have developed and crystallized in democratic countries. The distinction between a purely political strike, which is considered not legitimate, and an economic strike, which is recognized as a proper strike, is recognized and accepted by the different legal systems, but over time the two extreme forms of strike have been joined by an additional method of protest directed mainly at the sovereign power, which is a quasi-political strike that relies on a factual basis that is made up of a mixture of facts and goals.

Comparative law — conceptual distinctions

30. The law of the international democratic community, which has a long tradition in the field of labour relations, tends to distinguish between the ‘economic strike’, directed at the sovereign to achieve objectives in collective bargaining relating to work conditions, and the ‘purely political strike’, directed against the sovereign for the purpose of achieving political goals. This conceptual distinction is vague and rudimentary, for when considering questions relating to ‘political strikes’, the law in the aforesaid countries has generally shown that it is prepared occasionally to recognize a strike against the sovereign as an ‘economic strike’. Therefore, where employees have started a strike against the sovereign — whether government or legislator — and their goals are directed against the direct intervention of the sovereign in their employment conditions and immediate rights, such as: freezing their wages (in Holland — Re Keijzer v. Peters (1977) [24]) or reducing their salary (in Holland — N.V. Dutch Railways v. Transport Unions FNV, FSV and CNV (1986) [25], at p. 8), their strike was recognized as an economic strike, even though, as stated, it was directed at the sovereign. On the other hand, where the strike was directed against the sovereign and targeted a policy that sought to make a fundamental economic, structural change, such as tax reforms (Finland — Metal Industry Employers’ Federation v. Metal Workers Union (1988) [26]) or privatization processes (in England — Mercury Communication v. Scott-Garner (1984) [23]), the claim that the strike was economic and not political was rejected.

31. The implied conclusion, by way of analogy but in the proper context, is that a dichotomous distinction between a ‘pure political strike’, on the one hand, and an ‘economic strike’, on the other, is no longer applied in the law of the international community mentioned above, and it certainly cannot provide fitting solutions to the diverse labour disputes in a developing economy like that of the State of Israel. We can see how important is the purpose of the strike and how important are the objectives that the strike attempts to achieve. Therefore the interpreter must ascertain the purpose and objectives of the strike, and after he establishes its purpose, he will decide his position with regard to the legitimacy of that strike, even if it is aimed directly at the sovereign.

In this respect, the remarks of Justice Adler in the minority opinion of the judgment which is the subject of this petition are important. Judge Adler accepted the ruling in Mercury Communication v. Scott-Garner [23], supra, holding that:

‘… an additional tool for defining the scope of the strike within the framework of labour law is “the predominant purpose of the dispute”.’[§§]

A strike and a quasi-political strike

32. It follows that, in the reality prevailing in Israel as established above, there are grounds to distinguish between three types of strikes, which differ in their substance, their significance and the binding legal outcome in each of them. The first is the one defined as an economic strike, which involves a strike usually directed at the employer who wants to harm the rights of the employees, or who refuses to improve their terms of employment. This strike may be directed also at the government, when it acts in its capacity as employer, or when it wishes to intervene, by using its executive power, in order to change existing arrangements in labour relations between employees and employers or to prevent such arrangements. Such a strike is accepted as a legitimate strike.

The second is a purely political strike that is directed at the government, not in its capacity as employer, but as the body responsible for determining general economic policy that is not acceptable to employees who think that such a policy will limit them and harm their ability to struggle to achieve their rights as employees. This is a strike that is considered illegitimate, in that it attempts to undermine the authority of the government to determine economic policy with a wide perspective of the general public interest, and to force it to accept the employees’ demands; this is a strike that tries to intervene in legitimate legislation proceedings within the authority of the legislature, not by methods of persuasion acceptable in our democratic system, but by forceful intervention which tries to impose on the legislator what is unacceptable to it. This strike is not legitimate, and there is a justification for preventing it.

The third is a quasi-political strike, which falls between the two extremes that have been mentioned. It is about this that I would like to make some remarks. In these cases, which fall within the range that I have described, the test of ‘the predominant purpose’ becomes doubly important, since we are dealing with those cases where the employees are striking over an issue that is not directly related to their terms of employment in the narrow sense, but it affects them directly. Thus, when the proposed test shows and attests that there is indeed a direct effect on employees’ rights, even if they striking against the government, labour law will arise and give their strike the title of a ‘quasi-political strike’, which shall entitle the employees to the right to hold a short protest strike only, without such a case being classified as one of the two ends of the spectrum, since it is in a class of its own.

In this respect, it is appropriate to adopt the remarks of Prof. F. Raday, in her article, supra, at p. 163, that:

‘The right to strike over matters unrelated to terms of employment in the narrow sense, is completely different from the right to hold an economic strike. It is not possible to regard this as an instrument of economic pressure in conducting collective bargaining, for this would confer legitimacy on strikes against the employer or the government with regard to matters that are not subjects for collective bargaining. It should be regarded as a right of the citizen to freedom of speech and protest. Therefore it is limited to a protest strike only —to a brief action, which is not designed to put economic pressure on the employer. This right of a protest strike on broad socio-economic matters that directly affect workers may be regarded as the creation of a concept of a right to a quasi-political strike, which allows a protest act only.’

The same idea is expressed by Prof. Ben-Israel, in her article, supra, at p. 621:

‘… The proposed standard is, in one respect, that we are dealing with government policy that has an effect on the working sector, but in this context the effect must be direct, whereas an indirect effect is insufficient. An additional restriction arises from the case-law of the Committee of the International Labour Organization (ILO), which is that we are dealing with a strike that is designed to express a protest only, and is not designed to breach the peace.’

From the general to the particular

33. Should the strike before us be classified as an economic strike, entitled to the protection of labour law, as the National Labour Court ruled? In my opinion, this is not the case, and I do not accept the conclusions of the National Labour Court. I will explain my position.

34. With respect to the classification of the strike — if the General Federation wishes to rely upon the economic strike and to argue that the present strike is such, and to rely upon the protections conferred on such a strike, then it has the task, as the representative of the striking workers, of persuading the court that the policy of opening different fields of telecommunications services up to competition, as this is expressed in the Government’s draft legislation, will directly harm employees and their terms of employment, in the narrow sense. In my opinion, convincing and well-founded evidence that restricting Bezeq’s monopoly may cause direct and immediate harm to Bezeq’s employees has not been presented at all, either before the National Labour Court or even before us. Therefore, I am prepared to rely on the determination of Vice-President Adler, when he indicated that:

‘The facts submitted… have not shown a clear, certain or immediate effect that the new law will have on the terms of employment, the wages or the continued employment of Bezeq’s employees. It is possible that they will suffer, but it is also possible that they will benefit from the competition, if Bezeq competes successfully… The effect of the draft law on Bezeq’s employees is neither certain nor tangible, since there is no direct threat to the places of work of Bezeq’s employees, there is no direct intention to change their terms of employment, and there is no threat to reduce the corporation’s manpower. The opposite is true — Bezeq’s employees enjoy job security by virtue of statute and by virtue of collective agreements that apply to them.’

Therefore the inescapable conclusion is that the correct classification of this strike, according to its objectives and background, is, at most, a ‘quasi-political’ strike, which only justifies a protest demonstration that can be expressed, as stated, in a protest strike of short duration.

I emphasize the words ‘at most’, because were it not for the expectation that Bezeq’s employees have of exclusivity and an everlasting and unchangeable monopoly — expectations deriving from the provisions of sections 50, 51 and 60 of the Telecommunications Law, it is in my opinion highly questionable whether a change in the law could be regarded in any way, even prima facie, as having a direct and material influence on the employees’ terms of employment. From a review of the facts of the case and the provisions of the said law, I can determine that these feelings and expectations of the employees are unfounded. But I can understand that when the employees’ hope — albeit a mistaken one — was disappointed, a genuine fear took root in their minds that a change in the law would harm their terms of employment in some way. For this reason, I would tend to place this strike in the category of the quasi-political strike, with the consequences elucidated above.

35. It seems to me that even section 37A of the Resolution of Labour Disputes Law will lead us to the same conclusion with regard to the nature of the strike before us, and its proper classification. The term ‘strike or unprotected strike’ is defined in section 37A of the Resolution of Labour Disputes Law, in the following terms:

‘A “strike or work stoppage” — any one of the following:

(1) A strike or work stoppage of employees in public service, at a time when they are subject to a collective agreement, except for a strike that is unrelated to wages or social benefits, and the national centre of the competent trade union has declared or authorized it;

(2) …

(3) …’

In our case, where Bezeq is a ‘public service’ within the meaning of this term in the Resolution of Labour Disputes Law, we must consider the meaning of the words ‘except for a strike that is unrelated to wages or social benefits’. With regard to the interpretation of this phrase, Prof. Ben-Israel expressed her opinion as follows:

‘Two types of strike may be justified by the exception [‘that is unrelated to wages or social benefits’]:

(a) Sympathy strikes…

(b) Strikes of a certain political character…’ (see Prof. R. Ben-Israel, The Strike, Sadan, 1987, 194) (square parentheses added).

Even if we adopt this interpretation, which I do not reject, we would still find ourselves bound by the spirit of section 37A, which seeks to ensure the uninterrupted supply of essential public services. For this reason, I believe that in providing an exception for ‘the unprotected strike’, the legislator is only prepared to recognize the quasi-political protest strike, and to protect it within its narrow limits. When the protest of Bezeq’s employees took on the form of a general and prolonged strike, it significantly exceeded the quasi-political strike in its scope and objectives, and it became a political strike in the full sense of the term. For this reason, it is illegitimate and unprotected, contrary to the approach of the National Labour Court.

When will this court intervene in a judgment of the National Labour Court?

36. The respondents argued several times that we should not intervene in the ruling of the National Labour Court, for this is not an appropriate case for intervention. Only recently we reemphasized that:

‘We do not sit as a court of appeals on the judgments of the Labour Court, and therefore this court will not consider petitions that are manifestly of an appellate nature, and it will usually consider intervening in the rulings of the National Labour Court when two conditions are fulfilled… i.e., the existence of a significant mistake of law and the existence of considerations of justice that require our intervention…’ (see, for fuller treatment, HCJ 3679/94 [1], at p. 584, where the ruling in Hativ v. National Labour Court [10] was upheld).

Counsel for the petitioners is aware that labour law is the expertise of, and within the exclusive jurisdiction of, the Labour Court, and the intervention of this court in their decisions is limited, exceptional and requires cautious treatment. Nonetheless, their opinion is that in the present case, if the innovative ruling in the judgment of the National Labour Court continues to exist, a material mistake of law with regard to norms that should be applied to the issue of the ‘political strike’ will become entrenched, and this is a very important issue that reaches the foundations of collective labour law and collective labour relations.

This position has merit. The question of the ‘political strike’ raises, as stated, questions that reach the foundations of collective labour law, and yet many aspects of it are vague and unclear. The rulings on this subject, both those given by the Labour Courts and those found in judgments issued by this court, are few, and they relate to the special circumstances of one case or another. Therefore there were reasons for the National Labour Court, but also for this court, to consider this question in depth, with all its fundamental aspects.

When there exists a real, substantial difference of opinion on this issue, which is innovative, multi-faceted and of general application, the binding law ought to be determined by us:

‘For we should remember this: the ultimate responsibility for the development of case-law within the framework of the law is entrusted to the highest and final instance in the court system, namely the Supreme Court’ (A. Barak, ‘The High Court of Justice and the Labour Court — An explanation from the viewpoint of Jurisprudence’, The Bar-Niv Book — Selected Articles in Labour Law, Ramot, A. Barak eds., 5747, 103, 116).

In the words of Justice Cheshin in HCJ 1520/91 Wilensky v. National Labour Court [11], at p. 519:

‘This court, in which we sit, is the one that bears the burden and the responsibility, and if we do not speak succinctly and clearly, we will not be able to absolve ourselves by passing the responsibility onto others by relying on the intention of the legislator. We are the guarantors — and we are expected to determine the law.’

See, for fuller treatment and comparable cases: HCJ 3679/94 [1], supra; HCJ 675/84 General Federation of Labour in Israel v. Tel-Aviv-Jaffa Regional Labour Court [12], at p. 19; HCJ 289/79 Israel Ports Authority v. National Labour Court [13], at p. 159, etc..

Conclusion

As stated above, I have determined that the essence of the strike at issue is mainly a protest by Bezeq employees against a general, socio-economic policy, which is directed at on opening up the Israeli economy to competition and privatization. This policy is legitimate and even desirable. It does not constitute direct intervention in the freedom of negotiations or the employment conditions of the employees and it is truly concerned with the general public interest.

Where the sovereign decides that social and economic conditions justify changes in economic policy, whether by means of privatization of public services or by divesting certain bodies of their monopoly, we must recognize its right and authority to implement such a policy. The strike of the employees who dispute this policy because of an unfounded fear that their rights as employees will be affected may, at most, be classified as a short-term, quasi-political protest strike, but nothing more.

37. For these reasons, the petition has merit and we grant it. We are making the show cause order absolute, in the sense that we are reinstating the outcome which the Regional Labour Court reached in its judgment, but for the above reasons.

In the circumstances of the case, there will be no order for costs.

Justice M. Cheshin

1. I agree, but I thought I should raise two points.

First point: classification

2. The needs of society and the methods of governing the modern State — whether in relations between the State and the individual, or between individuals inter se — present us with social and economic conditions that refuse to fit into the legal models of the past. Models used in the past to decide legal disputes can no longer be applied in their old form, and legal classifications that were once all-embracing are collapsing and falling. This is not unprecedented. This phenomenon is encountered in every branch of law.

Only recently we were required to deal with the institution of the cooperative house, and we said that it was difficult to fit it into the traditional classifications of property law (see ALCA 7112/93 Tzudler v. Yosef [14], at p. 562):

‘The cooperative house (which is called “condominium” in some jurisdictions) is an invention of modern law, and it originates in the physical and social conditions of modern society. From the viewpoint of traditional property law, the cooperative house is a kind of hybrid: the “apartments” in the cooperative house are owned separately… and alongside these the “common property” is jointly owned by all the owners. The provisions of joint ownership of the general law do not apply to the common property in the cooperative house… and the provisions of the chapter in the law on cooperative houses are unique to cooperative houses. The arrangement provided by law for the cooperative house restricts the right of the apartment owners to act both with regard to the common property and with regard to the apartments that they own, and in this we can see the normative uniqueness of the cooperative house and the arrangements that apply to it… Indeed, the cooperative house is an institution that is sui generis, which is in some ways like one thing and in other ways like another, and it adamantly refuses to fit into any of the traditional models of property law. Moreover, the cooperative house refuses to be classified only in property law, and it has elements that go beyond property law. These creative elements in the cooperative house — elements that go beyond property law — include, inter alia…’

An example which is closer to the matter at hand may be found in the traditional distinction between private law and public law. This distinction has, to a large degree, been blurred recently. With respect to certain legal issues, its value has greatly diminished, and its strength has almost been depleted. In the words of Justice H. Cohn in HCJ 262/62 Peretz v. Kfar Shmaryahu Local Council [15], at p. 2109:

‘… in the national and public economy of today, there is no longer any practical benefit in the accepted distinction between the commercial or civilian acts of any authority of the State or a local authority, and their executive or public acts.’

See also HCJ 840/79 Israel Contractors and Builders Centre v. Government of Israel [16].

3. This is also the case in the matter before us, namely, with regard to the traditional dichotomous classification of the strike as either an ‘economic strike’, within the narrow field of employee-employer relations, or a ‘political strike’ (if this is indeed a ‘strike’). For reasons that we shall not consider at length (which include the ever-increasing intervention of the State in the conditions of economic life, and the greater awareness of civil rights, and these are perhaps the main reasons), the courts, academics and practitioners in the field of social sciences have found that the traditional classification can no longer provide proper solutions for social and economic conditions, which life and the development of law in a modern State have shown us. This unsatisfactory nature of the traditional models naturally led to a need to try and find new models, whether by improving the existing models or by designing new models that fit the needs of our times. Apparently we are currently in a period of transition, from the model of the past to the model of the present. This leads to the various proposals for new (or reconstituted) models, and this leads to different opinions among academics and lawmakers. As long as we have the comforting protection of a universally accepted classification, the resolution of issues may appear simple and clear, and resolving disputes may appear to be routine (even if it is not so). But during a transition stage from one period to another, nerve-endings are exposed, the search for creative elements that transcend the law becomes urgent and vexing, and disagreements between opposing outlooks are revealed with increasing intensity.

4. My colleague suggests that we adopt the remarks written by Professor Raday with regard to the issue of ‘quasi-political’ strikes, and he goes on to mention in the same context the remarks of Professor Ben-Israel. The comments of these two authorities — each in her own way — appear beneficial and useful as models for examination and determination, but I believe that we should take care not to adopt one model only, a model that may provide us with a fitting solution for one set of facts, but may be ineffective with respect to another set of facts (we note that a ‘quasi-political’ strike is, by definition, supposed to give expression not (only) to the right to work and earn a livelihood, but (mainly) to civil rights). In our case, I have not the slightest doubt that the strike of the employees has gone beyond the framework of a strike that should be recognized as legitimate. A strike of the kind that we have seen in this case is capable of dealing a mortal blow to the infrastructure of a democratic society, obliterating fundamental values of social morality and destroying the norms of coexistence. We know where it begins, but who knows where it may end? In this respect, I can only refer to the remarks of President Shamgar in Hativ v. National Labour Court [10], at pp. 703-704, cited by my colleague in paragraph 28 of his judgment.

Second point: the right (or freedom) to strike and human dignity

5. My colleague states (in paragraph 24 of his judgment) that since the advent of the Basic Law: Human Dignity and Liberty, the right (or freedom) to strike ‘will in the future find refuge in the value of “human dignity” that is enshrined in this Basic Law’. My colleague goes on to say that ‘the focus of our consideration is a liberty that has the status of a constitutional right and is well-established in the different branches of Israeli law — a status that grows stronger all the time’. No one would dispute that the freedom to strike is one of the inalienable assets of the Israeli legal system. I would also agree that the freedom to strike and its status are on an elevated level, equal to that of statute. Notwithstanding, since we do not need to decide this now, I would not say that it is self-evident that the freedom to strike springs naturally from ‘human dignity’ in the Basic Law: Human Dignity and Liberty, and that its status today is that of a constitutional right. In HCJ 453/94 Israel Women’s Network v. Government of Israel [17], our colleague, Justice Zamir, says the following at p. 536 {468}:

‘In case-law since the enactment of the Basic Law: Human Dignity and Liberty, various obiter dicta can be found that recognize many aspects of the Basic Law. This is particularly true with regard to the right to dignity. The same is true of law books. Some see in human dignity the principle of equality, some see in it the freedom of speech, and some see in it other basic rights that are not mentioned in the Basic Law. Someone compiling these statements could receive the impression that human dignity is, supposedly, the whole law in a nutshell, and that it is possible to apply to it the saying of the rabbis: “Study it from every aspect, for everything is in it”.

I would like to restrain myself, in this context, from obiter dicta that find their way between the lines of judgments, on such a fundamental and basic matter, without thorough discussion of the matter itself as a binding part of the judgment. I believe that if it is not necessary, it is better not to commit oneself until the need arises. Let us cross that bridge when we come to it, in the sense of “do not raise or disturb it until it is required”.’

In that case, the court considered the principle of equality, and Justice Zamir thought that it was possible to decide the dispute that arose between the litigants without also deciding that ‘the principle of equality is a basic right enshrined in the Basic Law: Human Dignity and Liberty as part of the value of human dignity, and it has, therefore, a super-legislative status’ (ibid.). This was true with respect to the principle of equality, and it is also true, in my opinion, with respect to the freedom to strike in our case. Let the remarks of Justice Zamir be heard as if they sprung forth from my lips.

Justice Ts. E. Tal:

I agree with the judgment of the honourable Justice D. Levin. Like my colleague, Justice Cheshin, I too wish to emphasize the harm to the foundations of democracy that results from a strike that is not an economic strike against an employer, whereby a group of workers tries to bring the legislature to its knees by force. I would leave undecided the question whether the right to strike is currently enshrined in a basic law.

Petition granted.

10 Nissan 5755.

10 April 1995.

[*] General Federation v. Bezeq, the Israel Telecommuncation Corporation Ltd IsrLC 25 367.

[†] Ibid., at p. 377.

[‡] Ibid., at pp. 378-379.

[§] Ibid., at p. 386.

[**] IsrLC 25 367.

[††] Ibid., at p. 376.

[‡‡] IsrLC 25 367.

[§§] Ibid., at p. 390.

Full opinion:

Association for Civil Rights v. Minister of Public Security

Case/docket number:

HCJ 6778/97

Date Decided:

Monday, January 12, 2004

Decision Type:

Original

Topics:

Discrimination

Abstract:

Facts: The petitioner challenged the respondents’ recruitment policies, which restrict the age of job applicants to a maximum of thirty-five or forty. The petitioner argued that these policies were discriminatory on the basis of age and therefore unlawful. The respondents argued that the policies were required by the demanding nature of the work.

Held: In the absence of evidence justifying their policies, the Supreme Court held that the recruitment policies of the respondent were indeed discriminatory on the basis of age and therefore void.

Petition granted.

Voting Justices:

Association for Civil Rights in Israel v. Minister of Public Security.pdf

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Full text of the opinion:

HCJ 6778/97

Association for Civil Rights in Israel

1. Minister of Public Security

2. Israel Police

3. Israel Prisons Service

4. The Knesset

5. Civil Service Commission

6. Customs and VAT Department

7. Attorney-General

The Supreme Court sitting as the High Court of Justice

[12 January 2004]

Before President A. Barak, Vice-President T. Or and Justices E. Mazza, M. Cheshin, D. Dorner, D. Beinisch, E.E. Levy

Petition to the Supreme Court sitting as the High Court of Justice

Held: In the absence of evidence justifying their policies, the Supreme Court held that the recruitment policies of the respondent were indeed discriminatory on the basis of age and therefore void.

Petition granted.

Legislation cited:

Employment Service Law, 5719-1959.

Equal Employment Opportunities Law, 5748-1988, ss. 2, 2(a), 2(c), 17.

Police Ordinance [New Version], 5731-1971, s. 17.

Police (Recruitment) Regulations, 5718-1957, rr. 1, 2.

Prisons Regulations, 5738-1978, r. 61(2).

Israeli Supreme Court cases cited:

[1] HCJFH 4191/97 Recanat v. National Labour Court [2000] IsrSC 54(5) 330.

[2] HCJ 678/88 Kefar Veradim v. Minister of Finance [1989] IsrSC 43(2) 501.

[3] HCJ 1703/92 C.A.L. Freight Airlines Ltd v. Prime Minister [1998] IsrSC 52(4) 193.

[4] HCJ 6051/95 Recanat v. National Labour Court [1997] IsrSC 51(3) 289.

[5] FH 10/69 Boronovski v. Chief Rabbis [1971] IsrSC 25(1) 7.

[6] HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture & Sport [1995] IsrSC 49(5) 1.

[7] HCJ 7111/95 Local Government Centre v. Knesset [1996] IsrSC 50(3) 485.

[8] HCJ 720/82 Elitzur Religious Sports Association, Nahariya Branch v. Nahariya Municipality [1983] IsrSC 37(3) 17.

[9] CA 3798/94 A v. B [1996] IsrSC 50(3) 133; [1995-6] IsrLR 243.

[10] CFH 7325/95 Yediot Aharonot Ltd v. Kraus [1998] IsrSC 52(3) 1.

American cases cited:

[11] E.E.O.C. v. Wyoming, 460 U.S. 226 (1983).ב

[12] E.E.O.C. v. County of Los Angeles, 706 F. 2d 1039 (1983).ו

[13] E.E.O.C. v. County of Allegheny, 705 F. 2d 679 (1983).נ

Canadian cases cited:

[14] Re Can. Human Rights Com’n & Greyhound Lines (1987) 38 D.L.R. (4th) 724.ב

[15] Re Air Canada and Carson (1985) 18 D.L.R. (4th) 72.ו

[16] Saskatchewan (Human Rights Comm.) v. Saskatoon [1989] 2 S.C.R. 1297.

For the petitioner — G. Stoppler, Dan Yakir.

For the respondents — N. Elstein, Director of the Labour Disputes Department at the State Attorney’s Office.

JUDGMENT

President A. Barak

The State of Israel is not prepared to recruit policemen, prison warders and customs inspectors if the candidates are over thirty-five or forty years old (see below). Is this approach lawful? This is the question before us.

Background

1. The State of Israel invited the public to apply for jobs as police prosecutors. The invitation said that only candidates whose age was less than thirty-five years were eligible to apply and submit their candidacy. This age was also stipulated as a preliminary condition in the job specification for customs inspectors. Subsequently, an invitation was published for the employment of security personnel in a State hospital. It was stipulated that only candidates whose age did not exceed forty would be accepted for employment. The Knesset Guard also restricted entry into its ranks to twenty-five years. The petitioner, the Association for Civil Rights in Israel, applied to the State. It argued that in stipulating the requirement of a maximum age, the State was discriminating against all persons who did not satisfy the age requirement. Since it was unsatisfied by the reply, it applied to this court. With the consent of the parties, we regarded the petition as if an order nisi had been given. Several hearings were held. Following a decision of the original panel of judges, the panel was expanded. We delayed giving our judgment, inter alia, because we waited for judgment to be given in HCJFH 4191/97 Recanat v. National Labour Court (hereafter — ‘the Recanat further hearing’) [1]. We also asked the parties for their response to that judgment. In addition, we waited for updates concerning changes in the employment policies of the respondents. Moreover, general developments concerning the connection between the age of the employee and the employment policy were brought to our attention. Thus, for example, the report of the Public Commission for Examining the Work Retirement Age was submitted for our perusal. In the course of the trial, the problem of the candidates for the Knesset Guard was solved. We were told that the previous policy, which restricted the Guard’s recruitment age to twenty-five years, had been cancelled. Instead it was stipulated that the aptitude of each candidate would be examined in accordance with his abilities, physical condition and state of health, taking into account the requirements of the position. We were also told that the Israel Prisons Service no longer stipulates a maximum age in its advertisements, but it is a consideration that they take into account in so far as security jobs or essentially similar jobs (‘specific-assignment jobs’) are concerned. A similar picture was obtained from the Customs Department.

2. Several developments have occurred in the recruitment policy of the police. At first we were told that the police continue to restrict the age of all the candidates for its jobs, even though with regard to the recruitment of professional staff the age restriction is not published in the employment advertisements, and in exceptional cases even someone who is older than thirty-five may be accepted for a professional job. During the hearing that the court held on the petition, we proposed that the respondents consider the possibility of adopting an employment policy on an individual basis when accepting candidates for employment. We were further told that the police are considering undergoing a process of ‘civilianization’ with regard to some of its jobs. In our decision we decided that ‘counsel for the respondents was requested… to submit to us a response in writing with regard to the proposal that was made to conduct a trial — or an “individual recruitment committee” — and also to prepare a timetable for the date of the “civilianization”.’ On 7 November 1999 we received the response of the respondents in this regard, from which it emerged that the police intended to conduct a trial during their 2000-2001 recruitment, for which the maximum age would be raised to 45 years for recruitment for non-specific assignments. We were also told in a notice from the respondents that the police have made a change with regard to the manpower that they employ. In the first stage, the police began, in the last two years, to accept civilian manpower and to carry out a ‘civilianization’ process for jobs with no specific assignment through personnel placement companies or by purchasing services from external contractors. By the date of filing the notice, approximately 1,000 jobs in various fields had been ‘civilianized.’ In response to this, the petitioner points out that the trial that the police conducted relates only to jobs that have no specific assignment, and it cannot provide a solution to the discrimination that exists, according to the petitioner, with regard to the specific-assignment jobs.

The parties’ contentions

3. The petitioner claims that the respondents’ policy constitutes age discrimination. This discrimination is prohibited on a general constitutional level, in view of the constitutional obligation of the respondents to uphold equality, human dignity and freedom of occupation. This discrimination is prohibited also by statutes that specifically address labour relations, including the Equal Employment Opportunities Law, 5748-1988, and the Employment Service Law, 5719-1959. According to the petitioner, in Israel the problem of age discrimination is serious, and it should therefore be treated with the utmost seriousness. The statutory exceptions that allow the rejection of candidates for jobs — inter alia on the grounds of age — should be construed narrowly. It argues that the defence in s. 2(c) of the Equal Employment Opportunities Law should not be available to the respondents, since there is nothing in the jobs under discussion in this petition that justifies an age limit for someone wishing to be considered as a candidate. In any event, the respondents have not discharged the burden imposed on them to justify their discriminatory policy. The policy is not founded on facts and a proper evidential basis but on generalizations and stereotypes. Consequently the regulations that were made by the respondents and their recruitment policy, which stipulate age restrictions for entering into their employment, are void.

4. The respondents claim that the proper normative framework for contending with the petitioner’s contention of discrimination is the Equal Employment Opportunities Law. Within the framework of this law, the employment policy and regulations are not discriminatory. They argue that a person’s age adversely affects his physical and mental functioning and it therefore affects the ability of older candidates to carry out their job properly. Thus, in so far as customs inspectors are concerned, the job requires a high level of physical and mental fitness. An individual examination of each candidate cannot predict his ability to withstand this burden. In so far as the Prisons Service is concerned, the warders are required to have a high level of physical and mental fitness. The retirement age from the Prisons Service is an early one because of the exhausting nature of the job. Against this background, it is justified to employ the criterion of age for the purpose of recruitment into the Service. The respondents explain that in the Prisons Service there is a distinction between the job of warder and administrative or professional jobs, and with regard to the recruitment of the latter there is no age limit. With regard to employment by the police, the respondents claim that a high level of physical and mental fitness is required. Unlike the Prisons Service, in the police even policemen who work in administrative and professional jobs are sometimes required to carry out operational police activities during their service. Operational policemen start ‘at the bottom’ and work their way up the ranks. The employment of older policemen under the command of younger policemen would lead to practical difficulties and harm the functioning of the police which is based on a chain of command. Creating a range of age restrictions for recruitment to different jobs in the police force would harm the police’s commitment to uniformity. The respondents also claim that voiding the regulations and the employment policy of the respondents would affect the whole of the police service. It would affect the retirement age of policemen, the grounds for their dismissal and the terms of service, since a group employment outlook with internal logic and balance would be replaced by individual employment that would harm the employers. Thus, for example, the police do not dismiss older policemen whose physical strength is weakened, but takes care to assign them to other jobs that suit their capabilities. This policy, in the respondents’ opinion, creates a mixture of young policemen and old policemen that can exist only by restricting the age of recruitment into the Service. In view of this, the respondents claim that cancelling the age restriction would harm their ability to carry out their public duties relating to security and other interests under their authority. The respondents refer to comparative law according to which, they claim, age discrimination is not considered to be on the highest level of severity. Greater judicial restraint should be exercised when considering an employment policy that is alleged to be age discriminatory. In view of all of the aforesaid, the respondents claim that the balance reflected by the regulations and their employment policy is reasonable and does not justify the intervention of this court.

The normative framework

5. The policy of the respondents with regard to the age of the candidates for recruitment into the police and the Prisons Service is encompassed in subordinate legislation (see r. 1 of the Police (Recruitment) Regulations, 5718-1957 (hereafter — the Police Regulations); r. 61(2) of the Prisons Regulations, 5738-1978). In so far as the employment of customs inspectors is concerned, this policy is encompassed in the internal directives issued by the Director of Customs and Excise. The main question before us is whether the respondents’ policy is unlawfully discriminatory between job applicants on the basis of age. We have been referred in this regard to various legal sources. In my opinion, these arguments should be focused on the framework of the Equal Employment Opportunities Law, which also applies to the State as an employer (s. 17). The key provision is in section 2 of the law, which states:

‘Prohibition against discrimination

2. (a) An employer shall not discriminate between his employees, or between candidates for employment on the basis of their sex, sexual orientation, personal status, parental status, age, race, religion, nationality, country of origin, outlook, party affiliation or reserve army service, enlistment for reserve army service or anticipated reserve army service as defined in the Defence Service Law [Consolidated Version], 5746-1986, including on account of its frequency or duration, with respect to any of the following:

(1) giving employment;

(2) conditions of employment;

(3) promotion in employment;

(4) training or professional studies;

(5) dismissal or severance pay.

(6) benefits and payments given to an employee with regard to retirement from work.

(a1) …

(b) For the purposes of subsections (a) and (a1), making irrelevant conditions shall also be regarded as discrimination.

(c) Discrimination shall not exist under this section when it is required by the character or nature of the job or position.’

The statute does not define what ‘discrimination’ is. In the absence of details as to a special outlook in this matter, the general laws concerning equality and discrimination in Israeli law apply (see the Recanat further hearing [1], at p. 343).

6. Equality in the case before us means equal treatment for persons who are equal and different treatment for persons who are different. Discrimination means different treatment for persons who are equal and equal treatment for persons who are different (see HCJ 678/88 Kefar Veradim v. Minister of Finance [2], at p. 507; HCJ 1703/92 C.A.L. Freight Airlines Ltd v. Prime Minister [3]; I. Zamir, M. Sobel, ‘Equality Before the Law,’ 8 Mishpat uMimshal (2000) 165. It follows that equality does not require identical treatment. Sometimes in order to achieve equality we need to act differently. Not every different treatment is discriminatory treatment. The principle of equality is therefore based on the relevant approach. ‘Discrimination is, of course, a distinction between persons or things for irrelevant reasons’ (Justice M. Cheshin in HCJ 6051/95 Recanat v. National Labour Court (hereafter — ‘the Recanat original hearing’) [4], at p. 312). ‘The concept of equality means equal treatment of persons who are not different from one another in any way that is relevant to the matter that is the subject of the equality’ (the Recanat further hearing [1], at p. 345). This was well expressed by President Agranat, who said:

‘In this context, the concept of “equality” therefore means “relevant equality,” and it requires, with regard to the purpose under discussion, “equality of treatment” for those persons in this state. By contrast, it will be a permitted distinction if the different treatment of different persons derives from their being, for the purpose of the treatment, in a state of relevant inequality, just as it will be discrimination if it derives from their being in a state of inequality that is not relevant to the purpose of the treatment’ (FH 10/69 Boronovski v. Chief Rabbis [5], at p. 35).

The key question in the petition before us is whether the age distinction between the candidates for the job — who constitute the ‘equality group’ in the case before us — is relevant for the job that the candidates wish to obtain.

7. Indeed, the State’s duty is to treat the candidates for the job equally, and not to discriminate between them. One typically discriminatory situation is age discrimination during recruitment for employment (see R. Ben-Israel, Equal Opportunities and the Prohibition of Discrimination at Work, vol. 3 (1998), at pp. 1043-1044; S. Rabin-Margaliot, ‘Age Discrimination in Israel: A Power Game in the Labor Market,’ 32 Hebrew Univ. L. Rev. (Mishpatim) (2002) 131). In the reality of modern life, in which the workforce is growing older, awareness of the existence of age discrimination should also increase (the Recanat original hearing [4], at p. 341; for a general discussion, see R.A. Posner, Aging and Old Age, University of Chicago Press, 1995). This awareness is important, inter alia, when considering imposing restrictions at the stage of accepting job applicants, which is the gateway into the employment market (Rabin-Margaliot, supra, at p. 161). Against this background, the State’s duty is to examine the candidacy of the job applicant on its merits without restricting the age of the candidate in advance, unless the job that the candidate is seeking justifies the stipulation of a maximum age. If the job requires the stipulation of a maximum age for job applicants, then the stipulation of that age does not constitute discrimination between the job applicants on a basis of age. The difference in the age requirements is justified in this situation by the difference in the job, and it does not involve any age discrimination. We have a relevant difference (in the job), which eliminates discrimination (on the basis of age) (see the Recanat further hearing [1], at p. 347). Indeed, the rule prescribed in s. 2(c) of the Equal Employment Opportunities Law and the rules prescribed in s. 2(c) thereof are merely the two sides of the same coin; it is not a rule (that prohibits discrimination) and an exception (that recognizes the discrimination), but two aspects of the rule itself, such that the two viewpoints ‘should be read together’ (Justice M. Cheshin in the Recanat original hearing [4], at p. 313).

8. The relevance test must provide an answer to the question whether the job particulars require the stipulation of a maximum age for the job applicants. The relevance test should determine whether the stipulation of a maximum age for the job applicant ‘is required by the character or nature of the job or position’ (s. 2(c) of the Equal Employment Opportunities Law). The question is whether stipulating a maximum age for the job applicants is ‘reasonably required by the nature of the worker’s job’ and whether it is proportional (the Recanat further hearing [1], at p. 348; see also S. Rabin-Margaliot, ‘The Elusive Case of Employment Discrimination: How Do we Prove its Existence?’ 44 HaPraklit (1999) 529). The test is, in the final analysis, a test of reasonableness and proportionality. I discussed this in the Recanat further hearing [1], where I said:

‘The relevance test demands that the job requirements… are reasonably necessitated by the nature of the job. The test is therefore a test of reasonableness… the question is always a question of balance. The question is whether the weight given to these considerations among all of the considerations is reasonable…

It also follows that the question of proportionality must be taken into account. Are the job requirements that the employer chose — and according to which a different retirement age was determined for different employees — proportional?’ (ibid., at p. 349).

9. Within the framework of the requirements of proportionality, one must take into account the sub-test according to which the administrative measure chosen should harm the individual to the smallest possible extent (see HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [6], at p. 12). When the alleged harm is age discrimination, one should examine whether the job qualifications that were stipulated prejudice equality between job applicants to the smallest possible extent (see the Recanat further hearing [1], at p. 349). Indeed, when the job requirements include physical strength and the ability to withstand physical effort, the smallest possible degree of harm will be caused to job applicants if the physical examination is done on an individual basis and a minimum age is not stipulated for the various candidates. This will make redundant the claim that the minimum age requirement is based on a stereotype that only a young person is strong, and it will prevent discrimination. In the Recanat further hearing [1], which it will be remembered concerned requirements that the employer made with regard to the pleasant appearance and physical strength required by air stewards, I asked:

‘… even if we say that a pleasant appearance and physical strength are prima facie required by the nature of the job, is it not possible to consider their existence on the basis of an individual examination of each applicant and not on the basis of a broad stipulation that does not take account of the individual characteristics of the applicants?’ (ibid., at p. 349).

Indeed, the employer will find it difficult to satisfy the ‘smallest possible harm test’ if he does not have substantial reasons to show why an individual examination will prevent the attainment of the proper purpose that he wishes to achieve (see Re Can. Human Rights Com’n & Greyhound Lines (1987) [14]; Re Air Canada and Carson (1985) [15]; E.E.O.C. v. Wyoming (1983) [11]; E.E.O.C. v. County of Los Angeles (1983) [12]; E.E.O.C. v. County of Allegheny (1983) [13]). This was well expressed by the Supreme Court of Canada, which said:

‘While it is not an absolute requirement that employees be individually tested, the employer may not satisfy the burden of proof of establishing the reasonableness of the requirement if he fails to deal satisfactorily with the question as to why it was not possible to deal with employees on an individual basis by, inter alia, individual testing. If there is a practical alternative to the adoption of a discriminatory rule, this may lead to a determination that the employer did not act reasonably in not adopting it’ (Saskatchewan (Human Rights Comm.) v. Saskatoon [16], at pp. 1313-1314).

Indeed, the State must show in the petition before us why the maximum age test was chosen rather than a less harmful test, namely an individual examination of the capabilities of the various applicants. In this regard, the burden of proof is of importance. The premise is that the burden of proof lies with the applicant who claims that he has been discriminated against by the employer. When the employer stipulates a maximum age, the burden of proof passes to the employer to show that stipulating a maximum age is required by the character and nature of the job (see the Recanat further hearing [1], at p. 351).

The police

10. The Police Regulations stipulate that the age of a candidate for a job shall not exceed thirty-five (r. 1 of the Regulations). They allow the Inspector-General to exempt candidates from this requirement (r. 2 of the Regulations). In practice, in the vast majority of cases the police implement a recruitment policy that does not allow the recruitment of candidates over the age of thirty-five. How do the police justify this policy? The police point out that policemen who serve in the police are responsible for protecting public security and they therefore have many duties in the field of public security. The work involves operational activity that has no restriction on hours and speedy performance of unplanned tasks. There is a broad range of police work. The broad range of tasks includes, inter alia, activity at road blocks, patrols, security, arrests and searches. Sometimes physical force needs to be used when dealing with criminals. All of these require a commitment to a large number of work hours and a heavy work schedule. The police claim that the ability to comply with all of these decreases with age. The police rely in their reply on the research of Dr Yoram Epstein and Mr Yuval Heled, which was carried out within the framework of the Heller Institute of Medical Research (the Sheba Medical Centre at Tel-HaShomer). This research, which the police initiated in 1998, shows a decline in human ability with age. Against this background, the expert opinion concludes that for jobs that require an element of physical activity (such as a patrol policeman), the maximum age restriction of thirty-five is reasonable (p. 12 of the expert opinion).

11. These arguments of the police justify taking the physical ability of the candidate into account when his candidacy is being considered. But they do not justify the stipulation of a maximum age without any individual examination. A distinction should be made between age and aging, which represents a process accompanied by a decrease in certain abilities (Ben-Israel, Equal Opportunities and the Prohibition of Discrimination at Work, supra, at p. 1045). Even if it is clear that there is a general correlation between age and physical abilities, there are certainly candidates over the age of thirty-five who are superior to younger persons both physically and in their ability to deal with the pressure involved in police work. Even the research to which the police refer determines a general correlation between age and aging, but it does not provide an answer to the question why the police should not examine the physical and mental capacity of its candidates on an individual basis.

12. The police claim in this regard that an individual examination for admission into the police would also require an individual examination during the service. It claims that every policeman who is found to be physically unfit will be compelled to leave the service, since every policeman will be judged according to the same physical standard. The police further argue that requiring the policemen to comply constantly with physical tests constitutes an insult to their dignity. These arguments are unacceptable to me. It is possible to have an individual examination for admission into the job without being required to have an individual examination for continuing in it. And even if such an examination is required, I do not see in this any defect that justifies adopting a recruitment policy based on a maximum age. Moreover, the existence of an individual examination involves no insult to the dignity of the policeman. ‘I do not see any insult to the dignity of an employee who is asked to carry out a job in which physical fitness is relevant, if he is asked to undergo individual fitness tests’ (the Recanat further hearing [1], at p. 355). These remarks which I made with regard to air stewards are in my opinion apposite, mutatis mutandis, also to policemen.

13. The argument of the police is that its recruitment policy requires overall considerations relating to the whole service, and these justify refusing an individual examination of the candidates for the job. I cannot accept this approach for three main reasons:

14. First, in the course of the hearing of the petition before us, a fundamental change took place in the recruitment policy of the police. At the moment, the police are undergoing a process of ‘civilianization.’ They intend to recruit civilians for many types of jobs in which there will be no age restriction of the type stipulated in the Police Regulations (see paragraph 2 of the judgment). Even before this, the police adopted a flexible approach when they recruited candidates for service in professional jobs (lawyers, economists, computer personnel, psychologists, forensic science laboratory personnel), which was allowed under r. 2 of the Police Regulations (see paragraph 126 of the respondents’ summations dated 28 February 1999). This position weakens the arguments of the police concerning the importance of uniformity and hierarchy. These considerations do not guide the police with the same force that they guided them in the past. Certainly they are not capable of forming the basis of a wide-ranging policy of refusing to recruit policemen over the age of thirty-five, as stated in the Police Regulations, for all fields of employment in the police.

15. Second, even if we accept the police’s arguments concerning the service as a whole — and on this question there is some doubt — the police must still show a basis for the concern that the number of recruits with good personal qualifications (both physical and in other areas) over the age of thirty-five will be so substantial that it will harm their ability to operate as a whole in a manner that meets its specifications. The police have not done this. No figures have been submitted to us to show that changing over to a method of individual examinations will make it harder for the police to an extent that justifies their policy. Therefore the police’s concern that they will need to change their retirement policy and that their regular operations will be impaired is also vague and unfounded.

16. Third, the police’s claims that their hierarchical structure will be undermined are also vague and have no foundation. A person who is accepted into the ranks of the police is not accepted unconditionally. The question of his employment can be reconsidered every five years (as stated in s. 17 of the Police Ordinance [New Version], 5731-1971). It can be assumed that the police will know how to deal with those older recruits who cannot function properly under the command of younger persons if difficulties of this kind arise. Certainly these claims are insufficient to justify an absolute prohibition preventing anyone over the age of 35 from joining the police.

17. What is the conclusion in the final analysis? My conclusion is that the police’s recruitment policy, as stipulated in the Police Regulations, is discriminatory on the basis of age. The requirement with regard to a maximum age is not required by the character or nature of the job of policeman; it is unreasonable and disproportionate. Instead of a maximum cut-off age, an individual arrangement that is sensitive to the needs of the individual and the requirements of the police should be formulated.

The Prisons Service

18. The arguments that we heard from the Prisons Service justify — like those of the police — taking into account the physical condition of a candidate when his application is being considered. But has the Prisons Service complied with the burden incumbent upon it to show that age is required as a condition for admission and an individual examination is insufficient? In my opinion, the answer is no. First, there is a disparity between the recruitment policy in practice and the recruitment policy stated in the Regulations. This disparity concerns both the maximum age cut-off (thirty-five years in the Commissioner’s order as compared with forty in the Prisons Regulations) and the extent to which the recruitment policy is implemented (general and comprehensive implementation in the Regulations as compared with implementation in certain sectors in the Prisons Service). This disparity in itself shows that in practice the stipulated policy is not followed. Second, unlike the police, the Prisons Service did not present any factual basis that justifies, in its opinion, the said age restriction. No medical survey examining the relationship between the requirements of the job in the Prisons Service and the restriction of age was presented. The Prisons Service raised an argument concerning the period of time required to train a warder as a justification for having an age requirement. But beyond this, we have not heard any argument concerning the length of the training of a warder in the specific-assignment job sector in the Prisons Service that prevents the employment of candidates whose age exceeds forty, or any claim to this effect. Therefore, the Prisons Service did not comply with the burden incumbent upon it to show that the age restriction is required by the character and nature of the job of warder. This restriction too is unreasonable and disproportionate.

Customs and VAT inspectors

19. The employment policy of the customs authorities is that customs inspectors should not be recruited if they are over the age of thirty-five. The customs authorities explained their employment policy by means of the difficult requirements of the job. Here too the respondents did not discharge the burden incumbent on them to show a basis for their recruitment policy in a way that would justify a general age restriction instead of an individual examination of candidates. The claims of the customs authorities that there are requirements of physical and mental fitness are similar in essence to those that we heard from the police, and the reasons for rejecting those are equally valid for the customs authorities. These authorities also have not shown any evidence that can justify their policy.

20. In view of our acceptance of the petitioner’s claims concerning age discrimination, there is no need to consider the additional claims that it raised, including its arguments concerning an infringement of freedom of occupation.

The relief

21. The provisions with regard to the maximum age as a work requirement are discriminatory and therefore void, and we so declare. This declaration will come into effect eight months from today. The purpose of the delay is to allow the respondents to organize themselves in order to comply with the obligation of equality in job admissions that is incumbent upon them.

We are making the order nisi absolute as aforesaid. The respondents will pay the expenses of the petitioner in a total amount of NIS 20,000.

Vice-President T. Or

I agree.

Justice E. Mazza

I agree.

Justice D. Dorner

I agree.

Justice D. Beinisch

I agree.

Justice E.E. Levy

I agree.

Justice M. Cheshin

I agree with the judgment of my colleague, President Barak.

2. On this occasion the matter before us concerns age discrimination, and at the end of a voyage of consideration and interpretation, we have arrived at the conclusion that we are indeed faced with a case of age discrimination. The provisions of s. 2(a) of the Equal Employment Opportunities Law, 5748-1988, provide and require that in job recruitment an employer shall not discriminate between job applicants on the basis of their age. The provisions of s. 2(c) of the law further tell us what is self-evident, namely that we do not regard discrimination in such a case to exist ‘where it is required by the character or nature of the job or position.’ The cornerstone of this case is therefore the issue of discrimination, or, if we use its other name, an infringement of the principle of equality.

3. The concept of equality is merely a framework concept, and the framework is filled with content by the fundamental values of society. As was said elsewhere (HCJ 7111/95 Local Government Centre v. Knesset [7], at p. 501): ‘… Equality is not a value in itself; it is a means to an end, where the high priest of justice and the high priestess of fairness hold office.’ See also HCJ 720/82 Elitzur Religious Sports Association, Nahariya Branch v. Nahariya Municipality [8], at p. 20 (per Justice Netanyahu). It has been held for some time — and this is the rule that has accompanied us over the years — that the concept of equality means, in general, ‘substantive’ equality, as opposed to ‘formal’ equality, and on the subject of substantive equality we made the following remarks in Local Government Centre v. The Knesset [7], at p. 502:

‘A close examination will show us, unsurprisingly, that “substantive” equality is merely one of the derivatives of justice and fairness. Justice and fairness have many facets, and one of their facets is equality. It is possible to formulate the principle of equality in many ways that are not identical to one another: equality of opportunities, equality of results, equality in starting point, equality in allocation of resources, equality of needs, etc.. But “substantive equality” in each of these is synonymous — both in theory and in practice — with justice and fairness, as it appears to members of a particular society at a particular time; in other words, equality leads to justice, and the path of equality is the path of fairness.’

See also further in this vein, ibid., as well as in the Recanat original hearing [4], at p. 322:

‘Discrimination between one person and another offends the sense of justice that dwells deep down in our hearts, and the law exercises all of its strength and might to protect whoever has been treated unfairly and whoever has been discriminated against. The rules of equality and the prohibition of discrimination are merely the rules of justice and fairness without which a civilized society cannot live.’

Once we have characterized the concepts of equality and the prohibition of discrimination as concepts ‘without which a civilized society cannot live,’ it is not to be wondered at that we have placed them alongside other supreme concepts that dictate public policy (ibid., at pp. 320 et seq.). But let us remember and observe this: the ideas of equality and the prohibition of discrimination are in and of themselves worthless. However, when joined with fundamental concepts — such as sex, personal status, race, religion, skin colour, nationality, outlook, etc. — they may bring to life or may create operative legal norms that derive from the values of justice and fairness, all of which naturally in a specific context. That is what we said in CA 3798/94 A v. B [9], at p. 182 {307}:

‘Morality and its imperatives are like a lake of pure water, and the law and its imperatives are like water lilies, spread over the surface of the water and drawing life and strength from the water. Morality nourishes the law at the roots and it surrounds the law… Thus we “know” that the question “Have you committed murder and also taken the inheritance” is a “worthy” question; … Thus we also “know” that the question whether a particular question is a “worthy” question, and whether it has an “answer in statute,” is a question — it may be called: the ultimate question — that nourishes itself with the principles of morality that beat within us, principles of morality that are derived from the principles of liberty, justice, equity and peace of Jewish heritage.’

See also CFH 7325/95 Yediot Aharonot Ltd v. Kraus [10], at pp. 72-73.

4. The concept of reasonableness — or alternatively, the concept of a deviation from the zone of reasonableness — moves through the ranks of legal norms like a scrupulous sergeant-major, anxious to impose order and discipline on the activities of government and administrative authorities. The force that moves him is the force of logic, and objective criteria light up his path. The concept of equality and the prohibition of discrimination is, however, different. This concept, especially in certain contexts, also derives strength from the rational principles of reasonableness, but its essence lies in the ‘sense of justice that dwells deep down in our hearts’ and in the principle of fairness that binds man to man — a principle without which proper human relationships would not be established, nor would society endure for long. These are the deep waters that nourish our decision in this case. That is how I understand our decision.

Petition granted.

18 Tevet 5764.

12 January 2004.

Full opinion:

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/97/780/067/A20/97067780.a20.pdf

Kav LaOved Worker’s Hotline v. Government of Israel

Case/docket number:

HCJ 4542/02

Date Decided:

Thursday, March 30, 2006

Decision Type:

Original

Topics:

Administrative Law

Discretion

Rights of Foreign Workers

Employment

Rights of Foreign Workers

Abstract:

Facts: The government of Israel adopted a policy of allowing foreign workers to come to work in Israel. The residence permits given to the foreign workers are conditional upon the foreign workers working for a specific employer (‘the restrictive employment arrangement’). Consequently, if the worker leaves his employer, he automatically becomes an illegal alien, and is liable to be arrested and deported. The petitioners attacked this policy, on the grounds that it violates the dignity and liberty of the foreign workers. It also undermines the bargaining power of the foreign workers in the employment market. The respondents replied that the restrictive employment arrangement is needed in order to ensure supervision of foreign workers in Israel and to make sure they leave Israel when their period of work ends. The respondents also argued that they have introduced a procedure for changing employers, but the petitioners claimed that this does not amount to a real change in the system.

Held: The restrictive employment arrangement violates the dignity and liberty of the foreign workers. This violation does not satisfy the requirement of proportionality in the limitations clause in the Basic Law: Human Dignity and Liberty. There is no rational connection between the restrictive employment arrangement and its declared purpose of supervising the foreign workers in Israel, as can be seen from the ever increasing number of foreign workers that remain illegally in Israel. The restrictive employment arrangement is not the least harmful measure that can be adopted. It is also disproportionate in the narrow sense, because the sweeping violation of the rights of the foreign workers is not proportionate in any degree to the benefit that is derived from the restrictive employment arrangement.

Petition granted.

Voting Justices:

Levy, Edmond E.

Primary Author

majority opinion

Cheshin, Mishael

Author

concurrence

Kav LaOved Worker's Hotline v. Government of Israel.pdf

majority opinion

Full text of the opinion:

HCJ 4542/02

Kav LaOved Worker’s Hotline

and others

1. Government of Israel

2. Minister of the Interior

3. Minister of Labour and Social Affairs

4. Association of Contractors and Builders in Israel

5. Association of Flower Growers Agricultural Cooperative Society Ltd

The Supreme Court sitting as the High Court of Justice

[30 March 2006]

Before President A. Barak, Vice-President Emeritus M. Cheshin
and Justice E.E. Levy

Petition to the Supreme Court sitting as the High Court of Justice.

Petition granted.

Legislation cited:

Basic Law: Freedom of Occupation.

Basic Law: Human Dignity and Liberty, ss. 1, 2, 6(b).

Contracts (Remedies for Breach of Contract) Law, 5731-1970, s. 3(2).

Entry into Israel Law, 5712-1952, ss. 1, 2, 6, 6(1), 6(2), 15(a).

Entry into Israel Regulations, 5734-1974, rr. 5(e), 10(a)(4), 11(a)(4).

Foreign Workers Law, 5751-1991, ss. 1K, 1M(a), 1M(b).

Israeli Supreme Court cases cited:

[1] LCrimA 10255/05 Hanana v. State of Israel (not yet reported).

[2] HCJ 5688/92 Wechselbaum v. Minister of Defence [1993] IsrSC 47(2) 812.

[3] CrimA 115/00 Taiev v. State of Israel [2000] IsrSC 54(3) 289.

[4] CA 2781/93 Daaka v. Carmel Hospital [1999] IsrSC 53(4) 526; [1998-9] IsrLR 409.

[5] HCJ 8111/96 New Federation of Workers v. Israel Aerospace Industries Ltd [2004] IsrSC 58(6) 481.

[6] HCJ 2587/04 Bucharis v. Hadera Assessment Officer (not yet reported).

[7] HCJ 785/87 Afu v. IDF Commander in Gaza Strip [1988] IsrSC 42(2) 4.

[8] CrimA 131/67 Kamiar v. State of Israel [1968] IsrSC 22(2) 85.

[9] CrimFH 7048/97 A v. Minister of Defence [2000] IsrSC 54(1) 721.

[10] HCJ 2599/00 Yated, Children with Down Syndrome Parents Society v. Ministry of Education [2002] IsrSC 56(5) 834.

[11] CrimFH 6008/93 State of Israel v. A [1994] IsrSC 48(5) 845.

[12] HCJ 1/49 Bajerno v. Minister of Police [1948] IsrSC 2 80.

[13] HCJ 337/81 Miterani v. Minister of Transport [1983] IsrSC 37(3) 337.

[14] HCJ 3267/97 Rubinstein v. Minister of Defence [1998] IsrSC 52(5) 481; [1998-9] IsrLR 139.

[15] HCJ 758/88 Kendall v. Minister of Interior [1992] IsrSC 46(4) 505.

[16] HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [1995] IsrSC 49(5) 1.

[17] CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 221.

[18] HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [1997] IsrSC 51(4) 367.

[19] HCJ 3648/97 Stamka v. Minister of Interior [1999] IsrSC 53(2) 728.

[20] HCJ 6055/95 Tzemah v. Minister of Defence [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

[21] HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [2005] (2) IsrLR 335.

[22] HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel [1996] IsrSC 50(2) 769.

[23] HCJ 6845/00 Niv v. National Labour Court [2002] IsrSC 56(3) 663.

Israel District Court cases cited:

[24] AP (TA) 2036/04 Quijan v. Minister of Interior (unreported).

Israel National Labour Court cases cited:

[25] LabC 1064/00 Kinianjoi v. Olitziki Earth Works [2004] IsrLC 35 625.

Israel Regional Labour Court cases cited:

[26] LabC (Hf) 1565/05 Rosner v. Ministry of Industry, Trade and Employment (not yet reported).

[27] CrimC (Jer) 106/03 State of Israel v. Mordechai Aviv Construction Enterprises Ltd (not yet reported).

[28] LabC (BS) 1347/03 Atzova v. Sansara Health Club Management Ltd (not yet reported).

American cases cited:

[29] Lochner v. New York, 25 S.Ct. 539 (1905).

Jewish law sources cited:

[30] Leviticus 19, 33-34.

[31] Exodus 23, 9.

[32] Exodus 22, 20.

[33] Rabbi Shelomo Yitzhaki (Rashi) on Exodus 22, 20.

[34] Rabbi Shelomo Yitzhaki (Rashi) on Exodus 23, 9.

For the petitioners — E. Albin.

For respondent 1-3 — A. Helman, O. Koren.

For the fourth respondent — G. Seligson.

For the fifth respondent — Mr D. Avraham.

JUDGMENT

Justice E.E. Levy

An Israeli employer who wishes to employ in his business workers who are not Israeli citizens or residents is required to obtain a permit for this from the Foreign Workers Department at the Ministry of Industry, Trade and Employment. The workers that come to Israel, pursuant to a permit that is given to the employer, receive a permit to live here. The Minister of the Interior, by virtue of the power given to him under the Entry into Israel Law, 5712-1952, usually makes the residence permit given to foreign workers conditional upon the worker who comes to Israel being employed by the specific employer who applied to employ him. The employer also undertakes, for his part, to ensure that the worker leaves Israel when the employment relations are terminated. The name of the employer is stamped in the passport of the worker, and he is prohibited from working for another employer or from doing additional work. A breach of these conditions in the permit results in its expiry and consequently the foreign worker because an illegal alien (hereafter — ‘the restrictive employment arrangement’). Is this arrangement lawful? That is the main question that we are required to decide within the framework of this petition.

The petition

1. The petitioners are human rights organizations. Their petition was brought before this court in 2002. The background to filing it was government decision no. 1458 of 17 February 2002, in which it allowed six thousand foreign workers from Thailand to be brought to Israel to be employed in the agricultural industry, notwithstanding the ‘closed skies’ policy that had been decided upon by the government, in which it determined that no more foreign workers would be allowed to enter Israel. The petitioners asked us to order the respondents in an interim order to refrain from bringing in additional workers as long as the restrictive employment arrangement remained in force, on the ground that this arrangement seriously violates the rights of foreign workers.

In his decision of 29 May 2002, Justice Rivlin held that there was no basis for making such an interim order, and the petition was heard before a panel. On 22 May 2003 an order nisi was made in the petition. From the filing of the petition until the present, when the time to decide it has arrived, the respondents made various changes to the restrictive employment arrangement. These changes were contained in internal guidelines of the Ministry of the Interior, and subsequently in government decisions. According to the petitioners, these changes are not satisfactory. The changes that they purport to make to the restrictive employment arrangement are not real changes, and they leave unchanged many of the problems that arise from it. We will therefore turn to examine the petitioners’ arguments and the respondents’ position on them, and then go on to examine the changes that were made to the restrictive employment arrangement.

The petitioners’ arguments

2. According to the petitioners, the policy adopted by the respondents with regard to the employment of foreign workers in Israel is unreasonable in the extreme. It leads to a serious violation of the human rights of foreign workers — their dignity, liberty and their rights under employment law — and it makes them the property of their employers. It negates the right to freedom of occupation in its most basic and fundamental sense. It leads to the creation of a class of inferior workers, which is tantamount to a form of modern slavery. It is based on the outlook that the worker is merely the property of his employer and not an autonomous entity with an inherent right to human dignity.

A preliminary argument raised by the petitioners is that the restrictive employment arrangement is ultra vires. This is because s. 6 of the Entry into Israel Law, which provides that the Minister of the Interior is entitled ‘to make conditions for giving a visa or a residence permit’ and also ‘to stipulate in a visa or a residence permit conditions that should be observed in order that the visa or the residence permit will be valid,’ does not allow the Minister of the Interior to make entry visas and residence permits given to foreign workers in Israel conditional upon working for a specific employer only. The serious violation of the basic rights of foreign workers caused by the restrictive employment arrangement leads, according to the petitioners, to the conclusion that express and unambiguous statutory authorization is required in order to implement it, and the general authorization given to the Minister of the Interior in the Entry into Israel Law is insufficient.

3. As we have said, the main argument of the petitioners concerns the violation caused by the restrictive employment arrangement to the dignity and liberty of the foreign worker, and its serious consequences concerning the weakening of his bargaining power in the Israeli employment market. The creation of a connection between the legality of the residence of the foreign worker in Israel and his working for a specific employer, according to the petitioners, gives the employer the ability — by means of the simple act of dismissing the worker — to make the residence permit that he holds expire, and to turn him into an illegal alien who is liable to be arrested and deported from Israel. This makes the dependence of the foreign worker on his employer absolute, and the disparity of forces that in any event characterizes employment contracts to which foreign workers and Israeli employers are the parties is increased.

Foreign workers who come to Israel in search of work, according to the petitioners, are usually normative persons who are in serious economic distress. They are able to come, in the vast majority of cases, by virtue of the assistance provided by manpower companies and other agents. Within the framework of this assistance, the worker is frequently required to pay large sums of money, which he undertakes to repay from his work in Israel, and this sometimes requires the mortgaging of his property in his country of origin. Against this background, it is clear that to lose the permit to reside in Israel — a consequence that can easily be brought about by any employer — has very serious consequences. It can cause the foreign worker complete economic destruction. It can result in the loss of his property and a life in the shadow of a huge debt that he will never be able to repay.

According to the petitioners, this excessive power wielded by the employer provides fertile ground for grave phenomena such as taking passports away from workers, imprisonment, non-payment of wages, violence, exploitation and treating workers inhumanely — phenomena to which many foreign workers are compelled to become accustomed, since they cannot object because of their desire not to lose the permit to reside in Israel. On the other hand, workers who choose to leave their employers against a background of these grave phenomena find themselves imprisoned and deported. This creates an unreasonable situation, in which workers who seek to realize their inherent freedom to be released from an employment contract — especially in circumstances of exploitation and abuse on the part of the employer — become criminals who are liable to be arrested at any time. In this way the basic right to be released from an employment contract — a right given to every worker — is violated. The petitioners claim that this serious employment reality also has a significant effect on the conditions of work of Israeli employees in those industries where foreign workers are employed.

The petitioners further argue that the restrictive employment arrangement violates the freedom to enter into contracts — a right that applies particularly with regard to an employment contract, which guarantees the basic social rights of the worker. It negates the economic bargaining power of the foreign worker in the Israeli employment market, which is in any case weak, and therefore the employment contracts made in view of this are clearly contrary to public policy and involve prohibited economic duress.

4. The petitioners also argue that in many cases the worker does not know that by working for a specific employer he can be in breach of the terms of his permit. This mainly occurs in situations where the worker (particularly in the construction industry) is ‘moved’ from one project to another on the instructions of his employer or the manpower company — sometimes to an employer who never received a permit to employ foreign workers. In this manner the foreign worker becomes a criminal without his knowledge and without doing any voluntary act.

It is also alleged that the restrictive employment arrangement violates the right of the foreign worker to medical insurance, a violation that is caused as a result of the termination of the employment for the employer, whether voluntarily or under duress, which means the loss of medical insurance that the employer is liable to pay for the worker; the worker’s right of access to the courts is also violated, since it is reasonable to assume that a worker who wishes to sue his employer will do so only after he has resigned from working for that employer. The significance of leaving his work for that employer is that he loses his permit to reside in Israel, so the restrictive employment arrangement should be regarded as depriving foreign workers of any real possibility of bringing their cases before the courts.

5. According to the petitioners, the employment of foreign workers in Israel should be effected by means of employment permits for a whole industry, so that the residence permit will be given to the foreign worker (and not to the employer) and it will be conditional upon him working in a specific industry and not for a specific employer. In consequence, the employers in that industry will be compelled to offer the workers wages and social benefits that will compete with other employers. This will allow market competition, and the workers will be given a basic bargaining power. At the same time, this arrangement will allow employers to employ other workers in place of those who have left, whereas the state’s interest in supervising and monitoring the employment of foreign workers in Israel will be realized by means of setting up a registry to which the foreign workers will report their place of work. This arrangement, according to the petitioners, properly balances the various considerations and interests, and is similar to the arrangements practised in many countries.

The position of respondents 1-3

6. The position of respondents 1-3, who are the government, the Minister of the Interior and the Minister of Industry, Trade and Employment[1] (hereafter — ‘the respondents’) is that the policy adopted by them with regard to the manner in which Israeli employers employ foreign workers is reasonable and reveals no ground for intervention.

In their reply, the respondents described the constraints facing the state in its attempt to contend with the phenomenon of illegal migration into Israel. In recent years, it is alleged, many foreign nationals who were allowed to enter Israel for a limited period, and for the purposes of certain work only, settled here without a permit, while leaving the work for which they were originally given a residence permit. Against this background, the respondents argue, the need to supervise the entry of foreign workers into Israel and their residence in Israel becomes acute.

Even the very employment of foreign workers in Israel, according to the respondents, irrespective of the question of the legality of their residence, is a policy that involves a heavy price. Employment of this kind admittedly involves immediate economic advantages for employers and the economy, but from a broad and long-term perspective it is argued that it has negative and harmful ramifications. Thus, for example, the employment of foreign workers is likely to result in a change in the structure of employment and wages, harm to the weaker sectors of the population that compete with foreign workers for places of work, the loss of foreign currency, the creation of a dependence on ‘importing’ cheap manpower and various social problems. In view of these negative ramifications and in view of the dimensions of the phenomenon of illegal residence in Israel, the respondents argue that it is clear that restrictions and supervision are required both for the actual permits for foreign workers to enter Israel and also for the specific work with particular employers. In addition the respondents argue that measures need to be adopted in order to ensure that the workers leave Israel when their residence permit expires.

7. The respondents reject the petitioners’ claim that making the residence permit given to the foreign worker conditional upon working for a specific employer frustrates the possibility of leaving the employer. In the initial reply to the petition, which was filed on 28 November 2002, they told us that the Population Director at the Ministry of the Interior issued a new procedure that regulates the change of employer by foreign workers. It was argued that this procedure — the ‘change of employer procedure’ — does indeed allow workers to leave the employer whose name is mentioned in their permit and to look for another employer, subject to the conditions and requirements stated therein. In their reply, the respondents also said that the aforesaid procedure was distributed to the Population Administration offices around Israel, and that it is going to be translated into the languages spoken by foreign workers. They say that when the translation work is completed, the procedure will also be distributed to the foreign workers themselves. The respondents further argued that the state is taking steps to find an alternative arrangement in the field of employing foreign workers in Israel that will not be based on restricting the workers to their direct employers. Notwithstanding, until this alternative arrangement is formulated — a professional committee set up by a government decision is working on this — there is no possibility of changing the existing arrangement, in view of the necessity of supervising the residence and work of foreign workers in Israel.

The respondents claim that the change of employer procedure undermines the argument that foreign workers are prevented from changing employers and that as a result their rights to dignity and liberty are violated. With regard to the violation of the freedom of occupation of foreign workers, it is argued that this right is only given to citizens and residents of the State of Israel. However the respondents emphasize that even if it is found that restricting the change of employer violates basic rights of the foreign worker to dignity and liberty, this violation is constitutional. It is done pursuant to statute, since the duty to obtain the approval of the Ministry of the Interior to change an employer is duly enshrined in the Entry into Israel Law; its purpose — supervision of the employment of the foreign workers — is a proper one; similarly, the change of employer procedure sufficiently takes into account the ‘human and public interest’ not to restrict a person to his employer and it reflects a proper balance between this and between competing interests. The respondents also emphasize, in this respect, the conflicting interest of the employers in ‘restricting’ their workers to them, since frequently — especially in the nursing industry — they too are numbered among the weaker sectors of society, in a manner that justifies preventing their foreign workers from ‘leaving them arbitrarily.’

8. The respondents reject the argument of the petitioners that the restrictive employment arrangement was enacted ultra vires. The clear language of s. 6 of the Entry into Israel Law, it is argued, does not leave room for doubt that the Minister of the Interior is entitled, on the face of the matter, to make conditions for giving a visa or a permit. In any case, the respondents argue, it is well-known that the discretion of the Minister of the Interior under the Entry into Israel Law is very broad, and this is inconsistent with the restrictive interpretation argued by the petitioners.

The change of employer procedure and the positions of the parties with regard thereto

9. In the decision of this court on 1 December 2002, it was held that in view of the introduction of the change of employer procedure, which was formulated, as aforesaid, after the petition was filed before us, it was desirable to ascertain how it was being implemented de facto. The hearing of the petition was postponed by four months, and the parties were asked to file supplementary statements with regard to the manner in which the aforesaid procedure was being implemented.

In a very general manner it can be said that the procedure enshrines the possibility of changing an employer, and it directs the officials of the Population Administration office with regard to the manner of handling requests of this kind. The procedure makes the granting of a request of a worker to move from one employer to another conditional upon various requirements, and it imposes certain exceptions. The following are the main conditions, which are enshrined in paras. 2 and 3 of this procedure:

‘b. Conditions and requirements

b.1 The person filing the request should file a request before he leaves the current employer.

b.2 If a worker is dismissed or his former employer has died or he has been compelled to leave his former employer, without a possibility of applying before he left to the Population Administration office, his request may be accepted provided that he comes to the office immediately after leaving the former employer.

It should be emphasized that this procedure does not apply to a worker who is caught when he is not working for his registered employer and/or as an illegal alien and only after he is arrested does he request to move to another employer.

b.3 The person filing the request should file a request for a residence permit of the b/2 type. If the worker already has a new employer, who satisfies all the conditions required in order to employ workers and the office sees fit to approve the move immediately, the worker can directly file a request for a residence permit of the b/1 type.

…

b.5 The person filing the request should present a foreign passport that is in force for six months more than the required period of the permit (assuming that a b/2 type permit is given).

…

b.7 The worker should be asked for an explanation of why he is interested in stopping his work for the current employer…

…

b.8 If the worker also has a letter from the employer, it should be received. If the worker does not have such a letter, the information should be received directly from the worker and where necessary a telephone call may be made to the manpower company through which the worker was employed and/or to the former employer.

…

c. A worker who satisfies all of the aforesaid conditions shall receive a residence permit of the b/2 type for a month, unless one or more of the following exceptions applies to him:

c.1 His residence is capable of endangering public safety or public health.

c.2 He has committed an offence against the laws of the State of Israel and for this reason the application should not be approved.

c.3 The case is one of a worker who has worked in Israel with a permit for a period of four years or more and therefore his request for a change should not be approved (it is possible to allow him to complete the period of his employment with his current employer).

c.4 The case is one of a worker who has changed employers several times and therefore there is no basis for approving his request for a further change, all of which while exercising discretion and subject to the circumstances of each case.

c.5 There is a certain restriction on providing the service in the Aviv (foreign worker) system.

c.6 His first degree family members — a spouse, mother, father, son, daughter — are present in Israel.

c.7 Another reason because of which the worker’s request to extend his residence permit for his current employer should be refused.’

In a supplementary statement of 4 May 2003, the petitioners argued that the implementation of the change of employer procedure had encountered substantial difficulties. This statement was supported by the affidavits of seventeen foreign nationals who worked in Israel in the nursing, manufacturing and construction industries. According to what was argued in the supplementary statement, the change of employer procedure was not published, translated or distributed among the various Population Administration offices, and consequently it is not being implemented by them de facto.

10. On the merits the petitioners argue that even if the change of employer procedure were to be implemented de facto, it still would not be capable of remedying the defects that lie at the heart of the restrictive employment arrangement. According to their approach, the rule that applies to the employment of foreign workers is still that they are attached to a specific employer, and the change of employer procedure is no more than a narrow and ineffective escape channel. The procedure burdens the workers with bureaucratic difficulties and insurmountable obstacles, and in practice there is no possibility of the worker changing employer by means of his own efforts, but only with the help of outside parties and human rights organizations; the process of ‘freeing’ the worker from the employer involves the employer himself and the manpower companies, and these are parties who have no interest in helping the worker to change his employer; it is not designed to deal with the phenomenon of the ‘moving’ of foreign workers by their employers and manpower companies, which means that the worker becomes an illegal alien against his will and without his knowledge. The arrangement still leave the employer with an incentive to confiscate the passports of the workers employed by him, since he is obliged to ensure that they leave Israel as a condition for employing new workers in their stead, in a manner that prevents them from acting on their own in order to arrange the change of employer legally. The procedure cannot therefore solve the problem of turning the foreign workers into illegal aliens against their will. In addition, the procedure increases the dependence, which in any case is considerable, of the foreign workers on the manpower companies with whom they are connected in so far as finding an alternative place of work is concerned, especially in the nursing industry. But the problem is that the manpower company — which has already been paid the agent’s fee with regard to the foreign worker coming to Israel and receiving an entry visa and residence permit — has no interest in finding alternative employment for the worker or in improving his conditions of work, and it may, for various reasons, even refer workers to work in places in which they are not allowed to work according to the permit in their possession, and thus these workers become illegal aliens without their knowledge, sometimes even from their first day in Israel. It is not surprising therefore that the manpower companies do not inform the workers of the procedure nor do they act in accordance with it. Moreover, the arrangement still leaves the employer with considerable power, since the initial linkage between the legality of the residence of the worker in Israel and the identity of the employer remains unchanged. It is argued that this linkage is exploited by many employers. Thus, for example, from the affidavits that were attached to the supplementary notice of the petitioners it transpires that in certain cases workers who came to Israel were asked to pay their employer a large sum in order to be employed by him, so that the employer could repay the amount that he paid to the manpower company.

11. The respondents reject these arguments of the petitioners. According to them, most of the difficulties of which the petitioners complain derive from the relationship between the foreign workers and the manpower companies, and they do not indicate any inherent problem as alleged in the change of employer procedure. The respondents are aware of the complex nature of the relationship between the foreign workers and the manpower companies, and they confirm the claims of the petitioners with regard to their charging the workers large amounts of money for coming to Israel. But according to the respondents, the linkage that is created de facto between the foreign worker on the one hand and the manpower company and the employer on the other as a result of those financial arrangements is of greater strength than the linkage created between the parties as a result of the change of employer procedure. Finally the respondents argue that the mere fact that the manpower companies do not act lawfully — such as when they refer a worker to an employer who does not have a permit to employ a foreign worker — has no relevance to the reasonableness of the procedure itself.

With regard to the question of the foreign workers’ knowledge of the existence and content of the procedure, the respondents claim that the procedure was distributed in February 2003 and although there might have been some ‘teething problems’ in implementing it, it is now properly implemented — with great flexibility — by the officials of the Population Administration offices.

Additional respondents

12. Additional respondents in the petition are the Association of Contractors and Builders in Israel and the Association of Flower Growers Agricultural Cooperative Society Ltd, which are organizations that incorporate employers in industries where foreign workers are employed. The position of the Association of Contractors and Builders with regard to the restrictive employment arrangement is that there is no inherent fault in it, and that most of the harm caused to the rights of the foreign workers derives from the relationship between the workers and the manpower companies. According to the Association of Contractors and Builders, the fact there are a few employers who violate the rights of their workers — and these should be brought to trial and subjected to the norms prescribed in the protective legislation — does not imply anything with regard to employers as a whole. A changeover to a restrictive industry arrangement will not, according to the Association of Contractors and Builders, result in an improvement of the employment conditions of the foreign workers, and it will upset the delicate balance between the needs of the economy, the needs of the employers and the needs of the workers in such a way that it will caused serious harm to the construction industry. According to the Association of Contractors and Builders, there is a deliberate shortage of foreign workers in the construction industry, a shortage that is intended to encourage Israeli workers to work in this industry, and therefore the introduction of competition between employers for the employment of foreign workers will harm employers who cannot offer conditions that are as good as the conditions offered by other employers. Admittedly, they explain that it may lead to an improvement in the status and conditions of work of the foreign workers, but the government’s decision to allow foreign workers to come to Israel was not intended, according to its purpose, to benefit these workers, but rather to prevent the collapse of the construction industry. Moreover, the restrictive industry arrangement will not provide a solution for employers whose workers ‘abandon’ them, and therefore a proper solution to the problems raised in the petition is to ensure the enforcement of the protective legislation against employers who act in violation thereof.

13. The Association of Flower Growers also presented its position on the questions raised by the petition, and especially with regard to the arrangement of employing foreign workers through corporations, an arrangement that was recently adopted in a government decision with regard to the building industry. When we consider this procedure below, we will also comment on the position of the Association of Flower Growers concerning it.

The restrictive employment arrangement — the normative framework

14. The question of the entry of foreign workers into Israel for the purpose of employment is governed by the Foreign Workers Law, 5751-1991, and the Entry into Israel Law. Section 1M(a) of the Foreign Workers Law provides that the employment of a foreign worker requires a written permit from the supervisor (a civil servant who is appointed as the manager of the government department that was formed pursuant to government decision no. 2327 on 30 July 2002, which is the Foreign Workers Department at the Ministry of Industry, Trade and Employment), and s. 1M(b) provides that permits for employment as aforesaid should be given after taking into account factors concerning the work market in the various work sectors and employment areas.

15. Under the Entry into Israel Law, the entry into Israel of someone who is not an Israeli citizen is effected by means of a visa, and his residence in Israel is in accordance with a residence visa (s. 1 of the Entry into Israel Law). The Minister of the Interior, who is the minister responsible for implementing the Entry into Israel Law (s. 15(a) of the Entry into Israel Law), is competent to give visas and permits as aforesaid (s. 2 of the Entry into Israel Law). The minister is also competent to make these conditional. Section 6 of the Entry into Israel Law, which is the main provision of statute around which this case revolves, provides the following:

‘Determining conditions

6. The Minister of the Interior may —

(1) determine conditions for giving a visa or a residence permit and for extending or replacing a residence permit, including stipulating that a money deposit, a bank guarantee or another appropriate surety is given for ensuring compliance with such conditions, and the means of realizing and forfeiting the surety;

(2) determine, in a visa or a residence permit, conditions that are to be fulfilled as a condition for the validity of the visa or of the residence permit.’

As stated, by virtue of the general power to make visas and residence permits conditional, the Minister of the Interior is accustomed to making the visas and the permits (hereafter, for short — ‘the permit’) that are given to foreign workers conditional upon working for a specific employer whose name is stamped in the permit, so that the worker who receives a permit may work for this employer only. The worker is not entitled to take on any additional work, and if he wishes to leave his employer, he must turn to the Population Administration Office and apply to change his employer and amend the licence accordingly. The employer is required, for his part, to sign a written undertaking in which he undertakes, inter alia, that the foreign worker will be employed only in the work for which he received the permit and that he will not be employed by another employer without the approval of the Minister of the Interior. The employer is also liable to ensure the worker leaves Israel when he finishing working for him (r. 5(e) of the Entry into Israel Regulations, 5734-1974). A breach of the condition with regard to working for the employer whose name is stated in the permit — such as by resigning or going to work for another employer — results in the expiry of the validity of the residence permit (rr. 10(a)(4), 11(a)(4) of the Entry into Israel Regulations).

16. Applications of workers to change employer and amend the permit are governed by the ‘change of employer procedure,’ which has been formulated by the Ministry of the Interior as discussed above. For the purpose of completing the picture, it should be noted that the change of employer procedure is supplemented by another procedure, which is the ‘closed skies procedure,’ which was determined as a result of the government decision not to allow any more foreign workers to come to Israel. The closed skies procedure allows, in certain cases, workers who have been arrested for unlawful residence to be released from arrest and to obtain work with another employer, provided that they have been in Israel since no earlier than 1 January 2001, and provided that they have not ‘absconded’ from their former employers (i.e., left their work without giving prior notice of this or obtaining the approval of the Ministry of the Interior for this), which has the purpose of providing a ‘solution for employers that have a shortage of workers because of the new policy.’

The arrangement of employing foreign workers through licensed manpower corporations and the positions of the parties with regard thereto

17. On 30 April 2002 the Minister of Finance appointed an inter-ministerial team whose task was to determine principles for a new arrangement in the sphere of employing foreign workers in Israel. The inter-ministerial team submitted its recommendations on 15 August 2004 (hereafter — ‘the recommendations of the inter-ministerial team’), and they were adopted by government decision no. 2446 that was adopted on the same day, with regard to the construction industry only.

The recommendations of the inter-ministerial team are that the method of employing foreign workers in Israel should be based on a new employment model through licensed manpower corporations. According to this model — which it was recommended to implement with regard to the construction and agricultural industries only — permits to employ foreign workers would no longer be given to employers on an individual basis. Instead, the foreign workers that would be allowed to work in Israel would be employed by corporations that are licensed to employ foreign workers in a specific industry. The number of these corporations would be limited, and they would be licensed to employ a defined number of foreign workers, which would vary between 500 and 2,000. Giving the licence to the corporation would be made conditional upon the payment of a licensing fee to the state treasury, in an amount that will reflect the difference between the cost of employing a foreign worker and the cost of employing an Israeli worker. The licensed corporations will be the party liable to pay the workers their wages and to give them the social benefits to which they are entitled under the law. With regard to the latter issue, it was proposed that a duty should be imposed to pay a minimum wage to the foreign worker on a scale of 236 hours of work per month (which includes 50 hours overtime according to a calculation of a minimum wage). At the same time, it was decided that the employer should have the obligation of keeping records of the hours worked by the worker, and to the extent that the worker actually works more hours, the employer should be obliged to pay him wages that are not less than the minimum wage for the actual amount of work.

18. It was also recommended that the corporation should be liable to make a provision each month in an amount equal to the maximum amount that can be deposited in a fund for foreign workers, under the provisions of s. 1K of the Foreign Workers Law, while allowing the corporation to deduct a part of that amount from the worker’s wages. The amount that would be accumulated in this fund would be given to the worker when he leaves Israel at the end of the period of his lawful work here, and this would serve as an incentive for foreign workers to leave Israel. It was also recommended that the workers would be given the right to change the actual employer and also to change the licensed corporations, as long as the work is in the industry in which the worker was permitted to work, in such a manner that would cancel the restriction of the worker to his employer. The committee further said that after debate it did not see fit to recommend the absolute cancellation of the restrictive employment arrangement:

‘The committee held a thorough debate on the possibility of cancelling the “restrictive” arrangement entirely and allowing the workers to work directly for the actual employers and not for licensed corporations. The committee was of the opinion that giving absolute freedom to the foreign workers would not result in a sufficient increase in the cost of employing the foreign workers and a reduction in their exploitation, since the foreign worker, as a worker that is not organized and that is operating in an environment that is not his natural environment, cannot demand a high price in return for his work potential. It is also clear that it will not be possible to maintain effective supervision so that the rights of foreign workers are maintained, as well as supervision of the number of workers and the payments of fees and charges for them, when there will be thousands of employers of foreign workers in Israel and there will be an unceasing movement of workers from one employer to another. The free movement of foreign workers between employers will also prevent any practical possibility of accumulating for the foreign worker amounts that will be given to him only when he is about to leave Israel, and this will prevent the use of one of the effective incentives for removing foreign workers from Israel (p. 36 of the recommendations of the inter-ministerial team).

It should be noted in this context that with regard to the licensing of manpower corporations the inter-ministerial team also recommended that the licence that would be given to the corporation would be made conditional upon the following:

‘1. The corporation shall allow free movement of every foreign worker registered with it between actual employers in the industry for which the licence was given, as the foreign worker wishes, provided that the actual employer whom the worker wishes to move to is indeed actually prepared to employ the worker.

2. The corporation shall not prevent movement of a foreign worker whom it employs to another licensed corporation in the same industry, if the worker wishes this and the other corporation agrees to it…

3. The corporation shall pay each of the workers his wages and every ancillary payment on time…

4. The corporation shall pay each of the workers the benefits that it is obliged to provide under any law…

5. The corporation shall provide every new worker who is employed by it with information concerning the rights of the worker, in a language that the worker understands.

6. The corporation shall undertake not to take any unlawful measures against foreign workers, such as violence, false imprisonment or holding back a passport, nor to ask the actual employer to adopt any such measures or to cause the actual employer to do this in any other way.

7. The corporation will locate for the foreign worker places of work that it wishes to offer him; the corporation will offer the worker the places of work that were located, including information on the identity of the actual employer, the place of the work, the type of the work, the worker’s wages, the work conditions, the period of the work and the place where he will live; after the worker is presented with the places of work as stated, the worker shall choose where he is actually interested in working and he will be referred to that place of work…’ (p. 39 of the recommendations of the inter-ministerial team).

Notwithstanding, the inter-ministerial committee saw fit to decide — with regard to a worker changing his employer — that since such a change involves an accounting with regard to the licence fee and additional bureaucratic procedures, a change of employer ‘cannot be done with unlimited frequency, but a reasonable time shall be determined, in coordination with the attorney-general, from the date of the foreign worker starting to work for that licensed corporation, and only at the end of that time will the worker be able to change over to work for another licensed corporation’ (p. 47 of the recommendations of the inter-ministerial team). Later it was decided, within the framework of the agreement reached between the Ministry of Industry, Trade and Employment and the Ministry of Finance on the one hand and the Association of Contractors and Builders in Israel on the other, that a change of licensed corporations would be possible once every three months (revised statement of respondents 1-3 of 21 February 2005).

19. With regard to the obligations for which the actual employer is liable to the worker, the inter-ministerial committee recommended the adoption of the model provided in the Minimum Wage Law, 5747-1987, which imposed on the actual employer of the worker an obligation to give the worker the employment conditions to which he is entitled. It was also recommended that the government policy with regard to the prohibition of bringing additional foreign workers to work in Israel (the ‘closed skies’ policy) would be left unchanged, and that the department at the Ministry of Industry, Trade and Employment would appoint a complaints commissioner for foreign workers, to whom foreign workers could turn with complaints concerning a violation of their rights.

20. The petitioners are not happy with the employment arrangement through manpower corporations (hereafter — ‘the corporations arrangement’). According to them, this arrangement will create a new form of restriction, whose ramifications may be worse than those of its predecessor. First, the petitioners argue, the corporations arrangement does not apply to workers in the nursing industry, who will continue to be employed in accordance with the previous arrangement, whereas its success depends on the continuation of the ‘closed skies’ policy, since the bargaining power of the foreign worker will decrease significantly if the entry of additional foreign workers into Israel is allowed. On the merits, the petitioners argue that the corporations arrangement purports to create an artificial work market for workers of the manpower corporations, according to which the foreign worker will be bound to the manpower company instead of being bound to the actual employer. Since the manpower companies are companies whose purpose is to make a profit, the petitioners argue, it can be expected that they will make it difficult for workers to move from one corporation to another by means such as refusing to provide information of this possibility, taking the worker’s passport, and the like. In addition, in view of the fact that the wages of the workers are paid by the corporation and not by the actual employer, there is no meaning to offers of higher wages from actual employers, and it can be expected that any additional wages that may be offered will not find their way into the worker’s pocket. In addition, licensing a limited number of manpower companies raises a concern that a cartel will be created, with the result that manpower companies will coordinate among themselves the amount of the workers’ wages and their conditions of employment. Coordination of this kind will make the possibility of changing manpower companies a meaningless fiction, and the same is true of the rationale behind increasing competition in the foreign worker employment market.

The petitioners complain also of the high amount of the licensing fees that the corporation is required to pay for employing each worker. This high amount, it is argued, creates an incentive for the workers and the actual employers to enter into a contract outside the corporations arrangement, in such a way that it will be difficult to enforce compliance with the protective legislation by employers of foreign workers in an effective manner. In addition, the amount of the licensing fees raises a concern that these will be ‘passed on’ to the workers and the actual employers.

21. The Association of Flower Growers, which is the fifth respondent in the petition, also sought to present its position with regard to this new arrangement. According to the position of the Association of Flower Growers, as it was presented in an affidavit that was filed in this court on 29 January 2004, the corporations arrangement cannot solve the problems raised by the petition. The Association of Flower Growers said that it supports the petitioners’ position that there should only be a restriction to a particular industry, so that the worker will not be restricted to his specific employer and workers will be able to change employers. Adopting the corporations arrangement, according to the Association of Flower Growers, will make the workers dependent on the corporations — instead of cancelling their dependence on the employers — in a manner that is likely to make the position of the foreign workers worse in comparison to their current position. It argues that a permit should not be given exclusively to several corporations, while preventing the employers from receiving one, since this will force the agency of the manpower companies upon the work market. This arrangement gives the manpower companies great power, which is likely to be abused; it increases the dependence of the foreign workers on the corporations and reduces even further their bargaining power; it distorts the employment relationship by creating an artificial distance between the worker and his direct employer.

22. The respondents reject these arguments. With regard to the petitioners’ arguments concerning the nursing industry, the consistent position of the respondents is that the nursing industry is different from the other industries in which foreign workers are employed. First, it is argued, there is no possibility of having a ‘free market’ in the nursing industry, because of the need to examine the specific entitlement of each patient that requires nursing. Second, as aforesaid, the position of the respondents is that there is great difficulty in cancelling the connection between the worker and the employer in the nursing industry, in view of the fact that the result of this will be that certain persons who require nursing services will not be able to employ a foreign worker. On the merits of the corporations arrangement the respondents make it clear that the department that deals with foreign workers will be very careful to ensure that workers can move freely from one licensed corporation to another, and that corporations that do not allow their workers to move as aforesaid will be liable to major sanctions, including the loss of their licence. The respondents also say that they do not entirely agree with the petitioners’ assessment that the proposed arrangement does not create an incentive for transferring the profits of the manpower corporation to the foreign worker, since it can be expected that the free movement between the licensed corporations will result in an increase in the wages of the worker. In any case, the respondents emphasize that the purpose of the arrangement is not to enrich the foreign worker but to increase the cost of his work.

With regard to the petitioners’ concern that a cartel of corporations will be created, the respondents say that in their estimation approximately thirty licensed corporations will operate initially. This number reduces the concern that a cartel will be created. In addition the General Director of the Israel Antitrust Authority has been asked to monitor the activity of the manpower corporations in order to prevent the creation of a cartel. The respondents also say that the licensing fees that were originally fixed have been reduced, and that in view of the risks facing the workers and the corporations that wish to enter into enter into contracts outside the corporations arrangement, there is no major concern of employment outside the arrangement.

Immigration for work purposes around the world and in Israel

23. We shall not understand the petition properly unless we discuss the complex nature of the circumstances underlying it. We will therefore say a few words about these, after which we will turn to examine the case before us.

The migration of people for work purposes is a worldwide phenomenon that is continually increasing. It is estimated that each year millions of men and women migrate to another country in search of employment and personal and economic security (see International Labour Organization (ILO), ‘Towards a Fair Deal for Migrant Workers in the Global Economy,’ International Labour Conference, 92nd Session, 2004, at p. 3; R. Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment (1997), at p. 17). The factors that cause the migration of people from country to country for work purposes are many and complex. They included circumstances such as widespread poverty, civil wars, natural disasters, differences between countries in wages and standards of living, increasing industrialization, the reduction in the costs of transport and communications, etc. (ILO, ‘Towards a Fair Deal for Migrant Workers in the Global Economy,’ supra, at pp. 3, 8; Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment, supra, at pp. 13-14, 18-21). A significant part of this movement of work migration is made up by non-professional and semi-professional workers, who are invited to work in developed countries in areas where local unemployed persons refuse to work (R. Ben-Israel, ‘Social Justice in the Post-Work Age: Distributive Justice in Distributing Work in the Twenty-First Century,’ Distributive Justice in Israel (M. Mautner ed., 2000), at p. 322; Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment, supra, at p. 19). The economic necessity that is the impetus for the migration of these workers, who usually originate in developing countries where the standard of life is very low, has led several scholars to argue for a relaxation of the category of ‘refugee’ in international law, so that it is adapted to the changing international reality (see P.H. Schuck, ‘Citizens, Strangers and In-Between: Essays on Immigration and Citizenship’ (1998), at p. 287; Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment, supra, at p. 14 and the text referred to by footnote 3; S. Sivakumaran, ‘The Rights of Migrant Workers One Year On: Transformation or Consolidation?’ 36 Geo. J. Int’l L. 113, at p. 114).

24. When they reach the destination country, work migrants tend to congregate at the bottom of the work scale, and they are employed mainly in jobs that are considered very difficult and dangerous, jobs that are known as the ‘3D jobs’ — Dirty, Dangerous and Difficult. Once these become the jobs for migrants, they tend to remain as such (ILO, ‘Towards a Fair Deal for Migrant Workers in the Global Economy,’ supra, at p. 10). A large number of the migrants suffer from low living and work conditions, which are frequently considerably lower than the usual work conditions in the destination country, and sometimes also from negative labelling and social hostility (see Schuck, ‘Citizens, Strangers and In-Between: Essays on Immigration and Citizenship,’ supra, at p. 4).

25. Israel has also played its part in the world map of work-related migration. For more than two decades workers from foreign countries have been employed in Israel in various sectors of the economy, and particularly in agriculture, construction, nursing and manufacturing. Until the beginning of the 1990s, these workers (without taking into account Palestinian workers from Judaea, Samaria and the Gaza Strip) were a marginal factor in the Israeli work force. By contrast, since the early 1990s — in view of the growing pressure from various interested parties to increase the quotas of foreign workers in the construction and agricultural industries — the government, in a series of decisions, has increase the quotas for giving permits to employ foreign workers in these industries (see State Comptroller, Annual Report no. 46 for 1995 and Accounts for the 1994 Fiscal Year (hereafter — State Comptroller’s Annual Report for 1995), at pp. 478-479; H. Fisher, ‘Foreign Workers: Overview, Formal Framework and Government Policy,’ The New Workers — Employees from Foreign Countries in Israel (R. Nathanson, L. Achdut eds., 1999), at p. 15).

26. Beginning in 1996, the government decided to take action to reduce the number of foreign workers in Israel. In a government decision of 16 June 1997, it was decided that ‘the number of foreign workers in the economy will be reduced by means of a multi-year plan, with the overall strategic approach that regards the large number of foreign workers as undesirable from social, economic and security viewpoints’ (State Comptroller, Annual Report no. 49 for 1998 and Accounts for the 1997 Fiscal Year (hereafter — State Comptroller’s Annual Report for 1998), at p. 273), and in a later series of decisions several operational policies were adopted in order to achieve this goal. Thus, for example, it was decided to reduce the number of work permits that would be given for employing foreign workers. Finally, it was decided not to allow the entry into Israel for work purposes of anyone who is not a ‘foreign expert,’ which is the ‘closed skies’ policy (government decision no. 2328 of 30 July 2002). In addition, it was decided to adopt economic measures that increase the cost of employing a foreign worker, and to extend the scope of the enforcement activity against persons employing foreign workers unlawfully (government decision no. 2327; government decision no. 1784 of 4 April 2004). The decisions of the inter-ministerial committee on the question of foreign workers and the immigration authority were adopted. These included the recommendation that an immigration authority should be established to focus all the powers of government ministries with regard to all aspects of immigration, as well as a department for dealing with foreign workers at the Ministry of Industry, Trade and Employment (government decision no. 642 of 2 September 2001; government decision no. 2327; see also State Comptroller, Annual Report no. 55b for 2004 and Accounts for the 2003 Fiscal Year (hereafter — State Comptroller’s Annual Report for 2004), at p. 376). A decision was also made to set up a temporary immigration administration that would act to arrest and deport foreign workers who were in Israel unlawfully, according to target quotas.

27. A consideration of the reality of employing foreign workers in Israel during these years reveals a problematic and troublesome picture. It transpires that workers from foreign countries are able to come to Israel ab initio only after paying large amounts of money — sometimes involving the mortgaging of their property and taking out loans — to manpower providers and agencies. These amounts of money are shared between the manpower company in the country of origin and the manpower providers in Israel (State Comptroller, Annual Report no. 53b for 2002, at pp. 655-656; LabC (Hf) 1565/05 Rosner v. Ministry of Industry, Trade and Employment [26]). In this manner:

‘The profit involved in actually bringing the foreign workers from abroad (which arises from payments that the foreign workers are prepared to pay in their country of origin in return for the right to work in Israel) induces various manpower providers to bring foreign workers to Israel in as large a number as possible, whether there is work for them in Israel… or not’ (Recommendations of the Inter-ministerial Committee, at p. 11).

The wages paid to foreign workers are in most cases low, and frequently even lower than the minimum wage. The State Comptroller’s Annual Report for 1999 found that:

‘The main economic incentive for employing foreign workers is that they cost less than the Israeli worker, and that they are prepared to work without social benefits and on terms that are unacceptable to the Israeli worker… Foreign workers are the most vulnerable sector, from the viewpoint of breaching the Minimum Wage Law. Exploitation of foreign workers by employers can also be seen from a survey conducted by the Manpower Planning Authority in 1998 with regard to foreign workers in Israel without a permit. Approximately 70% of those interviewed earned less than the minimum hourly wage…’ (State Comptroller’s Annual Report for 1999, at pp. 278-279).

Even the work and subsistence conditions offered to foreign workers are poor, and many of them find themselves living in crowded accommodation and unpleasant living conditions (see State Comptroller’s Annual Report for 1995, at pp. 476, 493; CrimC (Jer) 106/03 State of Israel v. Mordechai Aviv Construction Enterprises Ltd [27]). They do not benefit from the effective protection of protective legislation (see O. Yadlin, ‘Foreign Work in Israel,’ Menachem Goldberg Book (A. Barak et al. eds., 2001), at p. 350 and the references cited there; LabC (BS) 1347/03 Atzova v. Sansara Health Club Management Ltd [28]); they are exposed to abuse, exploitation and oppression (see LCrimA 10255/05 Hanana v. State of Israel [1]; see also the Report of the Ministry of Justice, Ministry of Labour and Social Affairs and the Ministry of Foreign Affairs, Implementation of the International Covenant on Economic, Social and Cultural Rights (1997), at p. 27), and they find it difficult, inter alia because of a lack of the knowledge and the funds that are required in order to pursue a legal recourse, and because of their great dependence on their employers, in bringing their cases to the courts (see LabA 1064/00 Kinianjoi v. Olitziki Earth Works [25], at p. 638).

Deliberation

Violation of basic rights

28. Our journey begins with the question whether the restrictive employment arrangement violates basic rights, in view of the dispute between the petitioners and the respondents on this preliminary question. The deliberations below will principally address the arrangement that prevails in the nursing, agriculture and manufacturing industries, which are employment sectors that are governed by the restrictive employment arrangement in its earlier form.

Before we consider the matter in depth, I think it appropriate to mention the following. The question whether the restrictive employment arrangement violates the rights of the employee to dignity and liberty cannot be considered in a vacuum. It should be considered in view of the reality of the employment of foreign workers in Israel. It should be sensitive to the complex circumstances that led to the possibility of foreign workers coming to Israel in the first place. It should take into account the special status of the group of foreign workers in the Israeli work market — a group that is composed of weak, ‘temporary,’ poor and unorganized workers. It should take into account the huge disparity in forces between the foreign worker and the state that is allowing them to enter its work market on its terms, and the manpower agencies and companies that operate in this work market. As stated — and we have discussed these questions extensively — foreign workers that come to Israel to work here do so against a background of economic distress and their desire to provide for their families. In the process of coming here, they are charged, not infrequently, large sums of money, which in terms of what is customary in their countries of origin are sometimes enormous, in return for arranging their coming and staying in Israel. For these reasons, deporting them from Israel before the worker has the opportunity of earning an amount of money that is at least sufficient to ‘cover’ his debt is an action that deals a mortal economic blow to the worker and his dependents.

29. Against the background of this reality, is it indeed possible to hold, as the respondents argue, that the restrictive employment arrangement does not violate the basic rights of foreign workers to dignity and liberty? My answer to this question is no. The restrictive employment arrangement violates the basic rights of the foreign workers. It violates the inherent right to liberty. It violates human freedom of action. It denies the autonomy of the free will. It tramples the basic right to be released from a work contract. It takes away a basic economic bargaining power from a party to employment relations who is already weak. By doing all this, the restrictive employment arrangement violates his human dignity and liberty in the most basic sense.

30. Human dignity is the central value that stands at the centre of our constitutional law. The rights that derive from it ‘are based on the recognition of the value of man, the sanctity of his life and the fact that he is entitled to liberty’ (s. 1 of the Basic Law: Human Dignity and Liberty). It is given to every person in as much as he is a human being (s. 2 of the Basic Law: Human Dignity and Liberty). The essence of the recognition of human dignity as a constitutional right is based on the outlook that the human being — every human being — is an autonomous and free creature, who develops his body and spirit as he wishes, and who writes the story of his life as he chooses (HCJ 5688/92 Wechselbaum v. Minister of Defence [2], at p. 827; CrimA 115/00 Taiev v. State of Israel [3], at p. 329). This was discussed by Professor Barak, who said:

‘Human dignity is the freedom of each person to shape his personality. Human dignity is the autonomy of the will of the individual, and the freedom of choice. Human dignity is the value of the human being, the sanctity of his life and the fact that he is entitled to liberty. Human dignity regards the human being as an end and not as a means to achieve the purposes of others. What underlies all of these is the freedom of decision of the human being, which is not a means but an end in itself. From this outlook of human dignity and liberty, which connects it with the autonomy of the will of the individual, we can conclude that human dignity is the freedom of action (both physical and legal) of the individual (A. Barak, Constitutional Interpretation (1994), at p. 421).

This was also well expressed by Justice Or:

‘… Every human being has a basic right to autonomy. This right has been defined as the right of every individual to decide his actions and desires in accordance with his choices, and to act in accordance with these choices… this right of a human being to shape his life and his fate includes all the central aspects of his life: where he will live, what occupation he will choose, with whom he will live, what he will believe. It is central to the life of each and every individual in society. It involves an expression of a recognition of the value of each individual as a world in himself. It is essential for the self-definition of each individual, in the sense that all the choices of each individual define the personality and the life of the individual…’ (CA 2781/93 Daaka v. Carmel Hospital [4], at p. 570 {460-461}).

31. The right to autonomy, freedom of action and freedom to enter into contracts are therefore central aspects of the human right to dignity. Their realization is dependent on the ability given to him, the human being, to make decisions concerning his life and path, and the possibilities that are available to him to act in accordance with them. The restrictive employment arrangement deals a mortal blow to these rights. As we have said, according to the restrictive employment arrangement the residence permit given to the foreign worker who comes to Israel is conditional upon him working for a specific employer whose name is stipulated in the residence permit. A termination of the work for this employer, whatever the reason for it may be, means that the permit to reside in Israel expires. In view of the money and the effort that the foreign worker invests in ‘acquiring’ the possibility of working in Israel for a fixed period, it is clear that this connection between the validity of the residence permit and the work for a single employer seriously violates the autonomy of his will. It weakens, and possible even negates, his bargaining power. It leaves him with no real choice between being compelled to continue working in the service of an employer who may have violated his rights, delayed paying his wages and abused him, on the one hand, and resignation on the other, a choice that means losing the permit to reside in Israel. Thus the restrictive employment arrangement limits the freedom of operation given to the worker to a single choice between a bad alternative and a worse one. The scholar Raz discussed the ‘acceptability’ of the alternatives between which a person may choose as a basic condition for realizing the right to personal autonomy:

‘If having an autonomous life is an ultimate value, then having a sufficient range of acceptable options is of intrinsic value, for it is constitutive of an autonomous life that is lived in circumstances where acceptable alternatives are present… a person whose every major decision was coerced, extracted from him by threats of his life, or by threats that would make the life he has or has embarked upon impossible, has not led an autonomous life… the ideal of personal autonomy… requires not merely the presence of options but of acceptable ones’ (J. Raz, The Morality of Freedom (1986), at p. 205).

32. The restrictive employment arrangement therefore associates the act of resignation — a legitimate act and a basic right given to every employee — with a serious sanction. There can be no justification for this. Imposing a sanction in the form of the loss of the permit to reside in Israel on a person who wishes to terminate an employment relationship is tantamount to an effective denial of the freedom to resign. Associating the act of resignation with a serious resulting harm is equivalent to denying the individual of the possibility of choosing with whom to enter into a contract of employment, and compelling a person to work in the service of another against his will. This not only violates the right to liberty, but it creates a unique legal arrangement that is by its very nature foreign to the basic principle of employment law, the moral value of the employment contract and the basic purpose of the employment contract in guaranteeing the economic survival, dignity and liberty of the worker. It gives the employer of the foreign worker an enforcement tool that is unrecognized in our legal system, which has freed itself of the idea of enforcing employment contracts (see s. 3(2) of the Contracts (Remedies for Breach of Contract) Law, 5731-1970). It deprives the worker of the basic ability to negotiate for the remuneration that he will receive for his work potential, and for the terms of his employment and his social benefits. The moral defect in depriving the foreign worker of his bargaining ability was discussed by G. Mundlak, who says:

‘When the employee loses his ability to operate in the market as a free person, the morality of the market itself is undermined… The moral defect that underlies the restrictive arrangement is made starker in view of the ramifications of this arrangement on the employment patterns and the search of foreign workers for employment in Israel. From the viewpoint of employment patterns, the restrictive arrangement allows a violation of the rights of the foreign workers, since the employer is aware that the employee cannot work for another employer or that changing over to do this will be difficult and cumbersome… Moreover, employers, and particularly manpower companies, charge the assets of workers in order to ensure that the worker does not leave his employer. Methods such as these are used in addition to the demand of the manpower companies that the foreign workers pay large amounts in their country of origin for receiving a residence visa in Israel and a work permit… The cumulative result of these methods is that the foreign worker is compelled to continue to work for his employer, even if his conditions of work are inferior to the ones required by law, until he can at least repay the debts that he has incurred. In such circumstances, the loss of a place of work and the residence permit that accompanies it are a more severe sanction than the one imposed on the local worker who loses his place of work. This difference is not only a quantitative one. The accumulated debt creates a serious dependence of the worker beyond what is usually implied by the mere contractual relationship between a worker and an employer, and there are those who regard this as creating a quasi-property relationship between the employer and the worker’ (G. Mundlak, ‘Neither Insiders nor Outsiders: The contractual construction of migrant workers’ rights and the democratic deficit,’ 27 Tel-Aviv University Law Review (Iyyunei Mishpat) (2003) 423, at p. 442).

33. In HCJ 8111/96 New Federation of Workers v. Israel Aerospace Industries Ltd [5] this court considered the question of the status and rights of workers when the plant in which they work is sold to another employer. In that case, Israel Aerospace Industries Ltd wanted to transfer one of its plants into the ownership of another company, Ramta Ltd, as a part of a change of the organizational structural of the company and as a preparatory step for privatization. The question that arose before this court is whether in this situation a worker has the right to remain the employee of the original employer, notwithstanding the change in the identity of the employer, in a manner that gives the employer the choice of terminating the employment contract with him in accordance with the provisions of the employment agreement to which it is a party, continuing to employ him or reaching an agreement with him, or whether he becomes the employee of the new employer, in a manner that leaves the employee the choice of resigning from his place of work.

In answering this question, the justices on the panel were of different opinions. The issues that they considered in their opinions are not of the same kind as in the case before us, but at the same time, from a study of the opinions of the justices on the panel, there is no doubt that the fundamental question that concerned the liberty of the worker and his natural right not to be compelled, or restricted, in an employment contract to an employer against his will was not the subject of any real dispute. The remarks of Vice-President Emeritus Or were as follows:

‘The employer’s management prerogative… grants him freedom of operation in managing his business and in carrying out various actions that concern it… but it is superfluous to say that the workers are not the “property” of the employer… The workers have a right to choose the identity of the party that enters into a contract with them. This right is a basic constitutional right… and it is enshrined today in the Basic Law: Human Dignity and Liberty. This basic right also includes the freedom of the worker to choose his employer. The special character of the personal service that the worker provides for the employer requires extra protection for the autonomy of the worker and his right to choose, in a real choice, with whom he will enter into a contract, including a work contract, and with whom he will not enter into a contract’ (ibid. [5], at p. 541; emphasis supplied).

Similar remarks were made by my colleague Justice Cheshin:

‘It seems to me that it is not possible to dispute the conclusion of my colleague Justice Or that under the general law — the basic principles, doctrines and specific rules — an employer is not entitled or competent to “transfer” his workers to another employer. This is the case under the law of contract, it is the case under the law of assigning obligations — both statute and case law — and it is also implied by the basic rights of the individual… An inanimate object, or an animal, may be moved by its owner as he wishes from place to place, from person to person, and no one will make any complaint. This is not the position with regard to a human being, who may not be dealt with or transferred between employers without his consent. Upon this, I think, everyone will agree without exception’ (ibid. [5], at p. 574).

Justice Rivlin added to this:

‘The liberty of the worker to choose the employer does not originate in the freedom of occupation in its narrow sense. It originates in the freedom and dignity of the human being. Admittedly, the right to property is a basic right, and there is no dispute concerning the employer’s property rights. But this important right should not include the power to hold onto a worker, even only as a premise. I said as a premise, because no one disputes that the worker always has the power to leave his new employer, just as he had the power to leave his previous employer. But a right to leave an employer that is based on the premise of the liberty of the worker is not the same as a right to leave an employer that is based on the premise of the employer’s prerogative. There can only be one premise, the former one, if we agree that the employer’s property rights will never also include control of the worker’s liberty. Moreover, even the property right of selling a business as a “going concern” does not include the right to transfer the living and breathing workers who are employed by it. The liberty of the worker to choose his employer is derived from the right to liberty, which is enshrined in the Basic Law: Human Dignity and Liberty, and from the value of human dignity, which is the foundation of the aforesaid Basic Law.

…

This liberty of the worker is derived directly from the outlook that the human being is an end and not a means. It constitutes a basis for the worker’s freedom of choice, his autonomy of will and his liberty to shape his life and develop his character as he wishes… Compelling the worker to change over to the new employer — even as a working premise — is inconsistent with the basic right of the worker to choose his employer and not to be employed by an employer whom he did not choose freely… Indeed, whether we adopt the approach that extends the “radiation boundaries” of human dignity or whether we restrict them, the liberty of the human being not to be treated like property that is passed from hand to hand lies in the nucleus of this value. Even if we were of the opinion that this liberty detracts somewhat from the employer’s property rights — and we are very doubtful whether this is the case — in the conflict between these two rights liberty should prevail.

…

Liberty lies in this case “closer” to the nucleus of the value of human dignity and realizes it to a greater degree. Therefore it should be given preference. Any other premise will not be consistent with the constitutional position in the State of Israel’ (ibid. [5], at pp. 595-597).

Can it therefore be seriously argued that making the residence permit held by the foreign worker conditional upon working for only one employer, in such a way that it links resignation from working for him with the loss of the permit to reside in Israel, does not violate the right to the worker to dignity and liberty? How can it be said that such a flagrant denial of the contractual autonomy of a human being, particularly with regard to a matter so important as employment relations — the identity of the employer — does not involve a violation of the worker’s right to autonomy and freedom of action?

34. I think it appropriate to point out, in this context, that Vice-President Emeritus Or, whose opinion was determined to be the majority opinion in New Federation of Workers v. Israel Aerospace Industries Ltd [5], addressed in his remarks the inability to choose, in the circumstances of the case, the alternative of resigning, and the remarks that he uttered are apt, very apt, in our case as well:

‘… I have difficulty in accepting the position of my colleague the vice-president, Justice Mazza, according to which the possibility given to the worker to resign negates the argument that, in practice, the result of the majority opinion forces on the worker a new employment contract with an employer whom he did not choose. It seems to me that the alternative of resigning, which severs the worker’s source of livelihood, cannot be considered as allowing him a real choice… The right to freedom of occupation allows a person to choose where he will invest his human capital. This choice is affected by a variety of considerations, which also include the identity of the employer… Compelling a worker to choose between changing over to a new employer and resigning (even if this is regarded as a dismissal), when there is an option of remaining the employee of the original employer, involves a violation of his freedom of occupation. A violation of freedom of occupation occurs not only when the worker is deprived completely of the right to choose his employer but also when his right of choice is harmed, even indirectly’ (ibid. [5], at p. 542).

If this is the case with regard to the constraints inherent in choosing between resignation (which is regarded as dismissal) and changing over to work for a new employer, in circumstances in which the worker’s place of work is transferred into the ownership of another employer, then it is certainly the case where the resignation not only severs the source of the worker’s livelihood but leads to a result that is far worse: the loss of the permit to reside in a country, when coming to that country involved the payment of a large amount of money, and when working in that country is the result of harsh economic constraints.

35. It is not superfluous to point out that the right of the individual to take on work freely and willingly is also enshrined in international law. Thus article 6 of the International Covenant on Economic, Social and Cultural Rights that was signed and ratified by Israel on 3 October 1991 provides the following:

‘Article 6

1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

…’

On the right to chose work ‘freely’ see also: the Universal Declaration of Human Rights, article 23(1); the International Covenant on Civil and Political Rights, article 8; the European Social Charter, part 1, article 1; the American Declaration of the Rights and Duties of Man, article 14. The significance of the right to obtain work ‘freely’ was discussed by Ben-Israel, who said:

‘The freedom to choose an occupation has three meanings: a first meaning is expressed in the fact that everyone has a right to choose his occupation freely. This meaning of the freedom to choose an occupation supplements what is implied by the freedom from forced labour. A second meaning is reflected in the requirement that a person should not be prevented from engaging in any occupation or profession when he has the qualifications required for engaging in it… A third meaning is enshrined in the right of every human being to receive an equal opportunity in employment’ (Ben-Israel, ‘Social Justice in the Post-Work Age: Distributive Justice in Distributing Work in the Twenty-First Century,’ supra, at p. 329).

Article 7 of the International Covenant on Economic, Social and Cultural Rights further provides the following:

‘Article 7

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind…

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.’

In addition to this, Convention (no. 97) concerning Migration for Employment of the International Labour Organization, which was signed and ratified by Israel on 30 March, 1953, provides in article 6 the following:

‘Article 6

1. Each Member for which this Convention is in force undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of the following matters:

(a) in so far as such matters are regulated by law or regulations, or are subject to the control of administrative authorities —

(i) remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age for employment, apprenticeship and training, women's work and the work of young persons;

(ii) membership of trade unions and enjoyment of the benefits of collective bargaining;

…’

36. These conventions have not been adopted in Israeli internal law by means of legislation. Prima facie, therefore, they do not create any obligation in this sphere. But it is possible that obligations in these conventions have taken on a customary character (see. Y. Shani, ‘Social, Economic and Cultural Rights in International Law: What Use can the Israeli Courts Make of Them,’ Economic, Social and Cultural Rights in Israel (Y. Rabin, Y. Shani eds., 2004) 297, at p. 342, and the references there; HCJ 2587/04 Bucharis v. Hadera Assessment Officer [6], at para. 15 of the judgment, where my colleague the president leaves the question of the customary status of the Convention concerning Migration for Employment undecided), and that they therefore constitute ‘a part of Israeli law, subject to any Israeli legislation that stipulates a conflicting provision’ (HCJ 785/87 Afu v. IDF Commander in Gaza Strip [7], at p. 35). But since the petitioners did not focus their arguments on international law and the extent to which it should be applied to the question that is required for our decision, and since we have not been asked to decide the status of these obligations, we shall not make any firm determination on this issue (for the status of foreign workers in the countries admitting them under international law, see L.M. Hammer, ‘Migrant Workers in Israel: Towards Proposing a Framework of Enforceable Customary International Human Rights,’ Netherlands Quarterly of Human Rights, vol. 17, no. 1, 10; Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment, supra, at p. 47; Sivakumaran, ‘The Rights of Migrant Workers One Year On: Transformation or Consolidation?’ supra, at p. 119).

37. Whatever the position is, everyone agrees that by virtue of the ‘presumption of conformity’ of Israeli internal law to the provisions of international law, we are required to interpret legislation — like a power given to a government authority — in a manner that is consistent with the provisions of international law (see CrimA 131/67 Kamiar v. State of Israel [8], at p. 112; CrimFH 7048/97 A v. Minister of Defence [9], at p. 742, and the references there; HCJ 2599/00 Yated, Children with Down Syndrome Parents Society v. Ministry of Education [10], at p. 846). It follows that the power of the Minister of the Interior ‘to determine conditions for giving a visa or a residence permit’ is limited and restricted, inter alia, by the right given to every person ‘to earn his living by means of work that he chooses, or obtains, freely,’ by the right given to every individual to enjoy ‘just and fair work conditions,’ and by the principle of non-discrimination between workers who are citizens and workers from foreign countries, which is enshrined in the Convention concerning Migration for Employment (for the principle of non-discrimination with regard to restrictions on the employment of migrants, see also recommendation 86 of the International Labour Organization that is attached to the Convention concerning Migration for Employment (Migration for Employment Recommendation (Revised) 1949, article 16).

38. To the ‘theoretical principles and rules of doctrine’ (in the words of my colleague, Justice Cheshin, in CrimFH 6008/93 State of Israel v. A [11], at p. 870), I would like add a few remarks also with regard to the realities of the matter and practical principles. I think that there is nothing like the findings contained in the most recent State Comptroller’s Report to emphasize how bad is the harm caused by the restrictive employment arrangement to the basic rights of foreign workers in Israel. The State Comptroller confirms the petitioners’ claims with regard to the ‘transfer’ of workers without their knowledge by their employers, an act that leads to the immediate expiry of their residence permit:

‘… The state determined that the foreign worker is bound to a certain employer, i.e., the employer is prohibited from transferring him to another employer or to another place of work contrary to the terms of the permit. Notwithstanding, because of economic considerations, employers transfer their foreign workers to another employer, and thus they become illegal foreign workers that can be deported. In other words, most of the foreign workers who are moved by their employers become illegal for reasons that are not dependent on them: the ability of the foreign worker to stand up to his employer who is moving him is small, and it can be assumed that sometimes he is not even aware that he is being moved contrary to the law. The review has shown that these foreign workers were imprisoned, but the immigration administration in many cases took no action against the employers’ (State Comptroller’s Annual Report for 2004, at p. 379).

Later in his remarks, the State Comptroller describes a concrete example of the manner in which this practice operates on an everyday basis:

‘In March 2004, for example, eleven foreign workers from China were arrested at one building site. Seven of them were arrested approximately three weeks after they came to Israel, one worker was arrested after being approximately five weeks in Israel and three workers were arrested after approximately seven weeks in Israel. Two of the workers said to the border control authorities that they paid ten thousand dollars in order to come to work in Israel. These workers came to Israel with employment permits that were given by the State of Israel to their employers for a period of a year for work in the manufacturing industry. According to the testimony of the workers before the border control authorities, their employers violated the terms of the permit and moved them to other employers in another industry, the building industry, and they worked in floor tiling. In practice, four of the eleven workers stayed in the prison facility for 78 days until an employer was found who wished to employ them. The other workers — the remaining seven — were deported from Israel, four of them after staying 32 days in the prison facility, two of them after staying 17 days in the prison facility and one worker immediately after being imprisoned. In this case too the workers paid by losing their liberty and by being deported from Israel for offences committed by the employers. The employers, by contrast, were not punished at all’ (ibid., at p. 380).

The State Comptroller also spoke of the ease with which workers lose their status in Israel as a result of complaints of their employer, and the similar ease with which they lose their liberty as a result of these complaints:

‘… According to the “restrictive arrangement,” a foreign worker must work for his employer for the duration of the permit. A foreign worker who leaves his employer becomes an illegal worker, and he is classified by the Ministry of the Interior as an “absconder” who is designated for deportation. At the end of August 2004, approximately 1850 foreign workers who were classified as “absconders”… were registered in the computerized system of the Ministry of the Interior. The review found that a letter from the employer informing the authorities that the foreign worker left his place of work was sufficient for the Ministry of the Interior to classify the foreign worker as an “absconder.” It can be seen from the documents that there were cases in which the employer reported that the worker was an “absconder,” and from the investigation made by the immigration administration afterwards it transpired that the worker had not left his employer at all. Even in these cases the employers were not punished… Sometimes employers report that workers are “absconders” and turn them in to the immigration administration, after the workers complain (mainly to human rights organizations) that the employers are exploiting them. The employer’s assumption in this case is that if the foreign workers are deported from Israel or moved to another employer with the consent of the Ministry of the Interior, the employment permit quota given to him (the employer who filed the complaint) will be credited and he will be able to employ another foreign worker instead of the “absconder” ’ (ibid.; emphasis in the original).

See also AP (TA) 2036/04 Quijan v. Minister of Interior [24].

The violations of basic rights that result from the restrictive employment arrangement were also discussed by the Advisory Committee for Examining the Immigration Policy of the State of Israel, which saw fit to recommend its cancellation:

‘Currently the worker is “attached” to a certain employer. When his work with that employer is termination, the visa for entering Israel and the permit to work here expire, and the worker is required to leave Israel. This is the position even if the worker has not completed the period of time during which he was supposed to work in Israel, but is dismissed before this by the employer. This arrangement is not fair, and very often it is cruel, because many of the workers invest all their limited property and even take loans in order to pay the agents who make the connection between them and the employers and who arrange for the issue of the visas and the permits required in order to work in Israel. The significance of compelling a worker who was dismissed early to leave Israel before he has had time to cover the expenses that he incurred in order to obtain the work permit is therefore very serious. The current arrangement also gives the employers huge power and is often abused. The worker frequently becomes enslaved to the employer. It is proposed that the entry visa into Israel and the work permit given to the worker should be for a period that is not less than three years (even if the worker stops working for the original employer)…’ (Advisory Committee for Examining the Immigration Policy of the State of Israel, Interim Report — February 2006, at p. 13).

39. My conclusion is therefore that the restrictive employment arrangement violates the human right to dignity and the human right to liberty, which are enshrined in the Basic Law. Human dignity is not satisfied because the restrictive employment arrangement violates the freedom of action of the individual and his autonomy of will. The right to liberty, for its part, is violated because the individual is denied the possibility of choosing the identity of the party that enters into an employment contract with him, and because he is compelled — by the connection between the act of resignation and the serious harm that accompanies it — to work for another against his will. These serious results are utterly foreign to the basic principles underlying our legal system.

40. It should be noted that even if the relationship between the workers and the manpower companies reveals many problematic aspects, as the respondents claim, this still cannot eliminate the problematic nature of the restrictive employment arrangement or the independent violation of the basic rights of the foreign workers that results from it. I should point out, in this context, that it would appear that even the respondents are not comfortable with the restrictive employment arrangement, and it is clear that even they agree with some of the petitioners’ complaints concerning it (see the letter of the assistant director of budgets of 19 December 2003, appendix 3 of the respondents’ statement of reply dated 1 January 2004; Recommendations of the Inter-ministerial Committee, at pp. 5, 11).

41. Since it has been found that the restrictive employment arrangement violates the rights of the foreign workers to dignity and liberty, I see no need to consider the abandoned dispute between the petitioners and the respondents on the question of the right of foreign workers in Israel to freedom of occupation, which is enshrined in the Basic Law: Freedom of Occupation. I think it appropriate to point out, nonetheless, that the laconic and sweeping position of the respondents, on the face of it, that foreign workers in Israel do not enjoy the constitutional right to freedom of occupation, in view of the language of the Basic Law: Freedom of Occupation, is in my opinion problematic, in view of the case law recognition of the right to freedom of occupation as a right enjoyed by ‘everyone,’ a case law recognition that preceded the Basic Laws (see HCJ 1/49 Bajerno v. Minister of Police [12]; HCJ 337/81 Miterani v. Minister of Transport [13]; see also the position of Prof. Barak on freedom of occupation as a ‘constitutional’ right as opposed to freedom of occupation as a ‘case law’ right, and the connection between freedom of occupation and human dignity: Barak, Constitutional Interpretation, at pp. 585, 598), in view of the status of the right in international law, and especially in view of the nature of the alleged violation to the right to freedom of occupation in the case before us — a violation that is directed at the most basic core values that the right to freedom of occupation seeks to protect.

Can the ‘change of employer procedure’ negate the violation of basic rights caused by the restrictive employment arrangement?

42. My conclusion with regard to the violation of basic rights caused by the restrictive employment arrangement requires us to examine whether, as the respondents claim, the ‘change of employer procedure’ — a procedure that aims to allow workers to change from one employer to another, in certain circumstances — cannot negate this violation. My firm opinion is that this procedure cannot negate the violation of basic rights caused by the restrictive employment arrangement. There are two reasons for this. The first reason is that the change of employer procedure does not significantly change the excessive power held by the employer. The initial link between the legality of the residence of the foreign worker in Israel and the identity of the employer is likely to lead to a situation in which the worker, even though he came to Israel lawfully, will become an illegal resident as early as his first day in Israel in circumstances that are beyond his control, and often without his knowledge. Such is the case, for example, where the employer takes advantage of this initial link and makes the commencement of the worker’s employment conditional upon his fulfilling certain conditions, such as the payment of additional amounts of money, or where the employer tells the worker to work for another employer, or on another project. Moreover, an application to change employer involves, according to the procedure, the loss of the permit to work in Israel for an unknown period: the procedure states that in the interim period between finishing work for the original employer and changing over to the new employer, the worker will receive a B/2 residence permit. This permit is a temporary residence permit (which is usually given for visits of tourists), and it does not allow a person to work lawfully. It is not clear, therefore, how the worker is supposed to support himself in this interim period, and especially why his legitimate request to change employers should result in the loss of the permit to work in Israel for an unknown period (since the procedure does not stipulate a binding time limit for processing the request to change employers). It does not appear that a procedure that allows a worker’s request to change his employer to be rejected for the reason that ‘the case is one of a worker who has changed employers several times and therefore there is no basis for approving his request for a further change’ or that ‘there is a certain restriction on providing the service in the Aviv (foreign worker) system’ (paragraphs c4 and c5 of the change of employer procedure) takes sufficiently into account — if at all — the inherent right given to every person to terminate an employment contract that he made.

43. The second reason, which in my opinion is the main one, is that the change of employer procedure assumes, as a premise, the power to hold onto a worker. The premise underlying the normative structure created by the restrictive employment arrangement — a normative structure that is not changed by the procedure — is that the employer is entitled to hold onto his worker, whereas the worker is entitled, only in certain circumstances, to be released lawfully from the employment contract with the employer. A normative structure of this kind is inconsistent with the constitutional status of the right to liberty, human dignity, autonomy and freedom of action. Indeed, ‘a right to leave an employer that is based on the premise of the liberty of the worker is not the same as a right to leave an employer that is based on the premise of the employer’s prerogative’ (per Justice Rivlin in New Federation of Workers v. Israel Aerospace Industries Ltd [5], at p. 595). A legal system that provides constitutional protection to human rights cannot accept a normative premise that assumes the absence of basic rights as a fundamental rule. It is impossible to accept that in a legal system that has established human dignity as a protected constitutional value the individual will be allowed to enforce his basic rights only in ‘exceptional’ cases. The change of employer procedure seeks to make basic rights that the individual — every individual — possesses into a mere ‘administrative’ matter that can be dealt with by officials. This is the essence of the matter. And since the procedure purports to do what cannot be done — at least, in a constitutional legal system that exalts the rights of the individual — we must conclude that it cannot, contrary to the respondent’s argument, negate the violation of basic rights caused by the restrictive employment arrangement.

Administrative discretion and the principle of proportionality

44. The restrictive employment arrangement links the employment of foreign workers in Israel to their residence here, and it is therefore created by combining the sources of authority from these spheres. The authority concerning the employment of foreign workers is the authority given to the foreign workers’ department at the Ministry of Industry, Trade and Employment to give permits for employing foreign workers to employers who request one, pursuant to the Foreign Workers Law, whereas the authority concerning the residence of foreign workers in Israel is the authority given to the Minister of the Interior to stipulate conditions for the residence permit given to foreign workers, pursuant to the Entry into Israel Law. Limiting the possibility of changing employers is possible by virtue of the latter authority which is given to the Minister of the Interior. Naturally, our scrutiny will focus on the manner in which this authority is exercised.

45. Section 6 of the Entry into Israel Law expressly authorizes the Minister of the Interior to make a residence permit that is given to someone who enters the borders of Israel conditional, by providing that ‘The Minister of the Interior may stipulate conditions for giving a visa or a residence permit.’ I therefore have difficulty in accepting the petitioners’ argument that the Minister of the Interior has ‘no authority’ to stipulate conditions for the residence permits of foreign workers who come to Israel. Notwithstanding, I think I should point out that a large degree of discomfort arises from the fact that all the serious violations caused by the restrictive employment arrangement to basic rights are based on that authority given to the Minister of the Interior under the Entry into Israel Law, which is an authority that was intended, according to its purpose, to be exercised in specific cases, and not to serve as a basis for making general arrangements. A general policy of this kind, in my opinion, should be based upon a primary arrangement, especially in view of its violation of basic rights (see and cf. HCJ 3267/97 Rubinstein v. Minister of Defence [14], at p. 515 {182}).

46. It is a well-established rule in Israel that the Minister of the Interior has broad discretion in exercising powers that are given to him under the Entry into Israel Law. This is especially the case where the empowering legislation — in our case the Entry into Israel Law — does not contain criteria and guidelines concerning the manner of exercising the executive discretion. But the breadth of the discretion given to the Minister of the Interior and the absence of criteria and guidelines do not mean that the Minister of the Interior has absolute discretion (HCJ 758/88 Kendall v. Minister of Interior [15], in the opinion of Justice Cheshin). The significance of this is not that the discretion exercised by the Minister of the Interior when exercising powers that are given to him under the Entry into Israel Law is exempt from the scrutiny of the High Court of Justice. Quite the contrary; the breadth of the discretion is precisely what necessitates caution and special care when exercising it; the absence of criteria and guidelines in the empowering law for exercising the executive power requires special attention to the general principles that limit and restrict administrative authority.

47. The requirement that the Minister of the Interior operates within the scope of the authority given to him under the Entry into Israel Law is of course insufficient. The legality of the executive discretion is examined from the viewpoint of the principle of proportionality (HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [16], at p. 11). This principle states that an executive action that is intended to realize a proper purpose — in our case, supervision of the residence and employment of foreign workers in Israel — should be carried out in an appropriate manner, and not excessively (ibid. [16]). It is made up of three subtests. The first subtest requires the existence of a rational connection between the purpose and the executive measure chosen to achieve it. The second subtest requires that the harm caused by the executive measure to the individual should be as small as possible. The third subtest requires that the violation of the right caused by the chosen measure should be proportionate to the benefit arising from it (see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [17], at p. 436; HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [18], at p. 385).

48. My opinion is that the means chosen by the respondents — making the residence permit given to the foreign worker conditional upon working for a single employer — does not exhibit a rational connection to the purpose of supervising the residence and employment of foreign workers in Israel. The harm caused by this measure to the individual is not as small as possible. It is also not proportionate to the benefit arising from it. I will explain my remarks below.

The connection between the means and the end

49. As stated above, the respondents’ approach is that because of the negative ramifications arising from the employment of foreign workers in Israel, ‘it is necessary to impose restrictions on the very permission to enter Israel, to ensure that the foreign workers can only work for those employers who, in the respondents’ opinion, should be allowed to employ foreign workers to a limited degree, and to create various mechanisms for the purpose of ensuring the workers leave Israel when the period of their residence permit expires.’ Does the measure adopted by the respondents lead, rationally, to the achievement of these purposes?

50. We should remember that the restrictive employment arrangement has been in force in Israel for more than a decade, from the time when it was decided to allow workers from foreign countries to enter Israel. According to the estimates of the Manpower Planning Authority at the Ministry of Industry, Trade and Employment (which is, as stated above, the third respondent), the number of foreign workers residing in Israel in 1996 reached 161,000, of whom only 89,000 were residing in Israel with a permit. At the beginning of 1998, the number of foreign workers reached approximately 170,000, of whom 90,000 were residing in Israel without a permit. In 2001, the number of foreign workers residing in Israel jumped up to 243,000. Most of these, so it appears, were residing in Israel without a permit. From these estimates it also transpires — and nothing is more indicative than numbers — that the number of foreign workers with permits is decreasing whereas the number of foreign workers without permits is increasing (State Comptroller’s Annual Report for 1998, at pp. 274-275; State Comptroller’s Annual Report for 2004, at p. 373). Thus we see that even though the policy adopted by the respondents has been in force for several years, since the actual time when it was decided to allow the employment of foreign workers in Israel, it has not been proved at all that it allows the existence of proper supervision of the residence and employment of foreign workers in Israel, which, it will be remembered, is its main goal. The opposite is the case: during these years, the number of the workers who reside in Israel unlawfully has continually increased. How, then, can it be argued that the restrictive employment arrangement exhibits a rational connection with the purpose of supervising the residence and employment of foreign workers in Israel?

51. These figures are accompanied by other figures, which also originate in research conducted for the Ministry of Industry, Trade and Employment. This research sought to examine, inter alia, the effect of the restrictive employment arrangement on the changeover of foreign workers to unlawful employment (Y. Ida, The Factors Affecting the Changeover of Foreign Workers to Unlawful Employment (State of Israel, Ministry of Industry, Trade and Employment, Planning, Research and Economics Administration, 2004). The conclusions of the research were that the restrictive employment arrangement encourages illegal work and makes it difficult to supervise the employment of foreign workers in Israel, and the harsh work conditions created as a result also harm Israeli workers:

‘…The background to the restrictive employment arrangement was a concern of the policy makers that the workers would settle in Israel… and in order to protect local workers against competition from foreign workers for places of work. But has the “restrictive employment arrangement” really achieved these goals? With regard to preventing the foreign workers from settling in Israel, it does not appear that the arrangement prevents them settling in Israel. On the contrary, it encourages working in a manner that is not organized, increases the number of illegal foreign workers and makes it even more difficult to supervise the employment of foreigners. With regard to protecting the population of local unskilled workers against competition from the foreign workers, it is almost certain that the low wage level paid to the legal foreign workers in the restrictive employment arrangement has had an effect on the whole market of unskilled workers, including local ones, who are compelled to satisfy themselves with low wages or to be pushed out into the ranks of the unemployed… The actual beneficiaries of the arrangement are precisely the employers, who pay lower wages both to the foreign workers and to the local workers. In other words, it is reasonable to assume that the restrictive employment arrangement has actually harmed the local unskilled workers rather than protecting them’ (ibid., at pp. 67-68).

It has for a long time been a rule of ours that ‘before an authority makes a decision that affects the rights of the individual — whether it is a decision in a specific case or a general policy decision — it should compile figures on the matter, separate what is relevant from what is irrelevant, analyze the figures, consider them, discuss the significance of the proposed decision and its estimated results, and only then should it act’ (HCJ 3648/97 Stamka v. Minister of Interior [19], at p. 776). Thus the figures compiled by the respondents themselves show that the policy adopted by them not only does not further the purpose for which it was intended, but even undermines it. The only possible conclusion in these circumstances is that it cannot be held that the restrictive employment arrangement satisfies the requirement of a rational connection to the purpose underlying it.

The least harmful measure

52. My outlook is that the restrictive employment arrangement is not the least harmful measure. It follows that it does not satisfy the second subtest of the requirements of proportionality. Of course, the tests of proportionality are applied ‘while taking into account the nature of the right under discussion, the reasons underlying it and the values and interests that are harmed in the specific case… When speaking of an especially important basic right, greater care should be taken to choose a measure that violates it to the smallest degree possible, even if this means a measure that involves a substantial cost’ (Israel Investment Managers Association v. Minister of Finance [18], at p. 418; see also HCJ 6055/95 Tzemah v. Minister of Defence [20], at p. 282 {684}).

53. I discussed in detail the supreme status of the rights that are violated by the restrictive employment arrangement and the seriousness of these violations in my remarks above (see paras. 28-39). I see no need to add to those remarks. The status of the rights and the severity of the violation thereof almost automatically require the choice of an alternative measure which is less harmful but which is faithful to the purpose that the respondents wish to promote. I have difficulty in accepting that compelling a person to work for a single employer is the only way of realizing the purpose of supervising the work and residence of foreign workers in Israel. It is possible that it is the simplest way, since by ‘delegating’ the duty of supervision to the employers, who are required to ensure that their workers leave Israel when the period of the permit expires, it removes the duty of supervision from the state. It is possible, for this reason, that it is also the cheapest method. But it is not the method that is least harmful, and in any case these facts in themselves cannot justify adopting the serious measure of the restrictive employment arrangement (cf. Stamka v. Minister of Interior [19], at p. 782).

54. Less harmful measure might be found in the form of measures such as the increased enforcement of the prohibition against unlawful residence in Israel or increased supervision of the employers of foreign workers. The possibility of other methods of operation with regard to the employment of foreign workers can also be seen from the report of the inter-ministerial team, which saw fit to recommend the implementation of a new employment model for foreign workers, a model that was implemented not long ago in the construction industry. It can also be seen from the report of the inter-ministerial team that an alternative arrangement to the restrictive employment arrangement can be made also in other industries. But these recommendations have not been implemented. The qualified tone of the remarks of counsel for the respondents in the hearing that took place before us also did not leave an impression that there is any plan, within a reasonable timeframe, to implement these recommendations or to adopt any other measure to reduce the harm. In these circumstances, my conclusion is that the restrictive employment arrangement does not constitute the least harmful measure.

Proportionality in the narrow sense

55. The restrictive employment arrangement also does not satisfy the test of proportionality in the narrow sense. The harm caused by it is out of all due proportion to the benefit that is believed to arise from it. I say ‘is believed’ because, as I said above, this arrangement is far from bringing about the consequences which it was intended to realize. Consequently, the ‘benefit’ that arises from the violation is nothing more than a ‘speculative and unproven’ benefit (Stamka v. Minister of Interior [19], at p. 783). But even if this were not the case, and we found that the restrictive employment arrangement resulted in a benefit in the form of easier supervision of the residence and work of foreign workers in Israel, I have great doubt as to whether the serious violation caused by this arrangement to basic rights could be regarded as being in due proportion to the benefit — any benefit — that can be derived from it.

56. It should be noted that no one disputes the fact that the rights to which the foreign worker is entitled and the obligations that the state has towards him, which are their mirror image, are not exactly the same in content and scope as the rights to which an Israeli citizen is entitled or the obligations that the state has towards a citizen (thus, for example, an Israeli citizen has the right to vote and stand for public office, he has immunity against being deported from Israel, and he has other similar rights that are not possessed by someone who is not a citizen); that the individual who is not an Israeli citizen does not have a right to enter the state (s. 6(b) of the Basic Law: Human Dignity and Liberty) or to receive a work permit in Israel; and that the state is entitled and obliged to control the work market and supervise the employment of foreigners in it, in accordance with the changing needs of the economy. We know that the state has a very broad prerogative in these areas, and it may decide who will be allowed in, and on what conditions, and who will be kept out. But these arguments only work up to a certain point, since it is clear that one cannot deduce from the entry permit given by the state to the foreign worker for the purpose of employment an unlimited authority to violate his rights. The foreign worker does not lose his humanity and his basic rights when he enters Israel. Even the fact that the state does not have a duty to allow foreign workers in does not mean that once it has decided to do so it may do so upon any conditions. Therefore, even if we accept that the rights of the foreign worker are not the same as those of the citizen, this is of little significance in our case, since the rights that are being violated as a result of the restrictive employment arrangement derive from the humanity of the individual, and they are not rights that belong to the state which it may give or withhold. This is certainly the case where this is done in a sweeping and disproportionate manner as it is in our case.

57. On the basis of the aforesaid, my conclusion is that the restrictive employment arrangement — an arrangement that is reflected in making the residence permit given to the foreign worker conditional upon his working for a single employer — does not satisfy the test of proportionality.

The nursing industry

58. The conclusion that I have reached with regard to the disproportionality that characterizes the restrictive employment arrangement applies to all the employment sectors to which this arrangement applies, which are the agriculture, manufacturing and nursing industries. I do not think that the nursing industry is different from the other industries in which foreign workers are employed. But since the respondents argue that employment in this industry has a special character, I will add a few remarks with regard to this matter.

59. As stated above, in so far as the nursing industry is concerned, the position of the respondents is that the employers have a significant interest in ‘binding’ their workers to them, in view of the vulnerability that is characteristic of this special sector of employers. The vulnerability of the employers, according to the respondents, justifies placing certain obstacles in the path of person working for them to stop them resigning from their work with them. This is what the respondents said in their reply:

‘Particularly in the field of nursing… there is a real difficulty in cancelling the connection between the foreign worker and the specific employer who requires his services and in implementing an industry-wide restriction as proposed by the petitioners. Adopting this measure is likely to lead to certain persons who need nursing services — who are also as aforesaid a weak sector of the population — not being able to employ a foreign worker, either because of the special difficulty in looking after them relative to other persons in need of nursing care, because of a shortage of funds or because of the place where they live in Israel’ (para. 16 of the supplementary statement of the respondents of 21 May 2003).

I accept the approach that in this field of nursing the ‘point of balance’ between the conflicting interests of the employer, on the one side, and the foreign worker, on the other, is different from other fields in which foreign workers are employed. Notwithstanding, I am of the opinion that the reasoning advanced by the respondents is no reasoning at all. Let me explain my position.

It is true that the relationship between the nursing worker and his employer who requires nursing is not an ordinary relationship between a worker and an employer. The personal nature of the service that is provided, the intensity of the work for the employer and the dependence that exists between the employer and the worker in his service create work relations of a special character. I also accept — and how could I not do so — that persons who require nursing services, including the elderly and the disabled, are sectors of the population that are characterized by a special vulnerability, and the formulation of a government plan of operation that may affect their lives and welfare should be made while taking into account these potential factors.

It is well known that the purpose of nursing services is to help persons who need them to carry out basic actions, and to allow them — in so far as possible — to lead normal lives. Nursing services also allow supervision of the person who needs them during the hours of the day, where constant supervision of this kind is required. We can easily understand that the importance of the nursing services for those who receive them is great. They can facilitate the movement of the person who requires nursing and allow him a reasonable quality of life. They can allow him to be involved in his environment and to enjoy, as a result, reasonable social functioning in the society in which he lives. The connection between these abilities and human dignity is a close one (see HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [21]). No one will therefore deny that the respondents have a duty to ensure that the elderly and the disabled in Israel enjoy conditions in which their humanity is not humiliated and their dignity as human beings is maintained.

60. However, there is a great gulf between this and the conclusion that realizing this obligation justifies restricting a person to his employer by forcing him, in practice, to provide a personal service under duress. In theory, the respondents approach is that we must guarantee that every person who needs nursing as such can employ a foreign worker, irrespective of the question of wages and the conditions of work that he wishes and is able to give to his employee, by linking the resignation of the caregiver from his employment with the person in need with a harsh sanction of losing his status in Israel. This approach, as stated above, does not stand up to constitutional scrutiny, since it does not satisfy the principle of proportionality. It also does not stand up to moral scrutiny, since human beings always are an end and a value in themselves. They should not be regarded merely as a means to an end or as a product to be traded, no matter how exalted the purpose (cf. HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel [22], at p. 783).

The purpose that the respondents set for themselves — guaranteeing the welfare and the dignity of the elderly and the disabled who require nursing services — is a proper purpose. The law has a role in realizing it. But the right of one person to dignity does not mean the absolute denial of this right to another. It is not the right to employ another person under duress, with low wages and without social benefits. It is not an unlimited authority to violate the liberty of another. Its realization does not require another person to be compelled to provide a personal service — and what service is of more ‘personal’ a nature than nursing care — under duress.

The relief

62. We have found that the restrictive employment arrangement, which makes the residence permit given to the foreign worker who comes to Israel conditional upon working for a specific employer and which applies — in the form currently practised – in the agriculture, nursing and manufacturing industries, violates basic rights. The harm caused by the arrangement is not proportionate. The operative ramification of this conclusion is that the Minister of the Interior is not entitled to make the residence permit given to foreign workers subject to the aforesaid condition. The respondents are consequently obliged to formulate a new employment arrangement, which is balanced and proportionate, with regard to foreign workers in these industries. This should not be based on the restriction of the worker who comes to Israel to a single employer, and it should refrain from linking the act of resigning with any sanction, including the loss of the status in Israel.

In view of the seriousness of the violation of the rights of foreign workers and in view of the period of time during which this has occurred, I propose to my colleagues that we determine that the respondents shall be liable to finish formulating a new arrangement within six months of the date of giving judgment.

63. One of the heads of the relief sought by the petitioners is that we order the respondents to introduce a ‘restrictive industry’ arrangement instead of the existing restrictive arrangement. We cannot grant this request. The court does not determine the executive plan of action. It is not for the court to decide what is the desirable employment policy with regard to foreign workers in Israel. Formulating the new employment arrangement and determining its details is not a relief that we can grant. All that the court can decide is whether the executive action — in our case, the restrictive employment arrangement — is legal. Does it satisfy, as an executive action, the terms of the limitations clause, and in particular the principle of proportionality? This is what we sought to do, and this is what we have done. We have found that the policy of employing foreign workers by restricting the worker to his employer disproportionately violates basic rights, and as such it is prohibited. Now the formulation of a new employment policy is a matter for the respondents to determine. They have the duty — after considering all the relevant considerations – of formulating a reasonable and balanced arrangement, which will be capable of guaranteeing the purpose of supervising the residence and employment of foreign workers in Israel on the one hand, and the purpose of protecting their basic rights on the other. These purposes do not contradict one another. They should be consistent with one another. The respondents should formulate an arrangement that will incorporate both of them.

Conclusion

‘And if a stranger dwells with you in your land, do not oppress him. The stranger who lives with you shall be like one of your citizens, and you shall love him like yourself, for you were strangers in the land of Egypt’ (Leviticus 19, 33-34 [30]).

64. The individuals whose interests are addressed in the petition before us — the foreign workers — were invited by the respondents to come to Israel to work here, in those industries in the economy in which they thought their employment was required. Everyone knows the reason why they came here — the fact that they are prepared to engage in hard labour which has been abandoned by the local work force, for low wages, without social benefits, and sometimes in work conditions that are really harmful. This is the main ‘attraction’ in employing them. But the distress of these workers must not become something that we exploit. We must not make their poverty a tool for uncontrolled and disproportionate violations of basic rights. We in particular — for whom the bitter taste of living in a foreign land is all too familiar — we know the feelings of the stranger, for we were strangers in the land of Egypt (Exodus 23, 9 [31]).

I propose to my colleagues that we grant the petition and make an absolute order in the manner set out in para. 62 of my opinion.

Vice-President Emeritus M. Cheshin

I have read the opinion of my colleague Justice Levy — I will take the liberty of adding that it is a fine and sensitive opinion — and I agree with the remarks that he wrote. If I wish to add a few remarks of my own, it is only because the human predicament that presented itself before us and the opinion of my colleague raised in me strong feelings and emotions to which I wish to give expression.

2. The starting point for our journey is found in the provisions of s. 6 of the Entry into Israel Law, 5712-1952, according to which the Minister of the Interior may ‘determine conditions for giving a visa or a residence permit and for extending or replacing a residence permit…’ (s. 6(1)) and he may also ‘determine in a visa or a residence permit conditions that are to be fulfilled as a condition for the validity of the visa or of the residence permit’ (s. 6(2)). The Minister of the Interior made use of these powers in the case of foreign workers, and he made their residence in Israel conditional upon an arrangement that bound them to a particular employer. My colleague gives this arrangement the name of a restrictive employment arrangement (or a restrictive arrangement) and I will follow him. Later the minister relaxed the position by means of an arrangement whereby foreign workers can change employer, but as my colleague has shown this arrangement did not significantly reduce or decrease the restrictive arrangement, nor did it really allow the foreign workers to change employer.

3. The aforesaid power of the Minister of the Interior in s. 6 of the Entry into Israel Law appears on the face of it to be a power of an absolute nature: an unbounded power, a power that extends in all directions without any limit. But as the court held in Kendall v. Minister of Interior [15], at p. 527 et seq.), there is no such thing in Israeli law as ‘absolute’ discretion, and even discretion that is called ‘absolute’ is not absolute discretion at all. The same is true of the discretion of the Minister of the Interior under s. 6 of the Entry into Israel Law: it is hedged in by legal restrictions that are inherent in every power wielded by the government; it yields to all the basic principles and doctrines of the legal system; and the basic rights of the individual, including first and foremost those rights enshrined in the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation, are an integral part of the fabric of its genetic code.

4. A study of the restrictive arrangement that the state created and applied to foreign workers — unfortunate persons who are separated from their families for months, and even years — gives rise to astonishment mingled with anger: how can persons in authority in our country think that they can treat in this way women and men who only want to provide for their families? We do not deny that the persons in authority were required to consider important conflicting factors — considerations of proper administration and of the need to prevent abuse of the permit to reside in Israel — but how did they fail to see that the arrangement that they made seriously violated the dignity of the foreign workers as human beings? Every human being — even if he is a foreigner in our midst — is entitled to his dignity as a human being. Money is divisible. Dignity is not divisible. This is true of both the dignity and the liberty of the workers.

Indeed, we cannot avoid the conclusion — a painful and shameful conclusion — that the foreign worker has become his employer’s serf, that the restrictive arrangement with all its implications has hedged the foreign worker in from every side and that the restrictive arrangement has created a modern form of slavery. In the restrictive arrangement that the state itself determined and applied, it has pierced the ears of the foreign workers to the doorposts of their employers and bound their hands and feet with bonds and fetter to the employer who ‘imported’ them into Israel. It is nothing less than this. The foreign worker has changed from being a subject of the law — a human being to whom the law gives rights and on whom it imposes obligations — into an object of the law, as if he were a kind of chattel. The arrangement has violated the autonomy of the workers as human beings, and it has de facto taken away their liberty. According to the restrictive arrangement, the foreign workers have become work machines — especially in view of the fact that the employers have allowed themselves, unlawfully, to transfer them from one employer to another — and they have become likes slaves of old, like those human beings who built the pyramids or pulled oars to row the ships of the Roman Empire into battle.

What has happened to us that we are treating the foreign workers, those human beings who leave their homes and their families in order to provide for themselves and their families, in this way? We are overcome with shame when we see all this, and we cannot remain silent. How have we forgotten the law of the stranger that has been enshrined in the humanism of Judaism throughout the generations: ‘And you shall not oppress a stranger, nor shall you pressurize him, for you were strangers in the land of Egypt’ (Exodus 22, 20 [32]). Rabbi Shelomo Yitzhaki (Rashi) comments on this: ‘Every use of the word “stranger” means a person who was not born in that country but came from another country to live there’ (Rabbi Shelomo Yitzhaki (Rashi) on Exodus 22, 20 [33]). Was Rashi speaking of our case? As E.S. Artom says in his commentary: ‘ “And… a stranger” — a gentile who lives among the Jewish people and who has no friends or relative who can come to his aid at a time of need.’ Could these remarks refer to foreign workers? The Torah has also told us: ‘And you shall not pressurize a stranger, for you know the feelings of the stranger, because you were strangers in the land of Egypt (Exodus 23, 9 [31]). The Torah tells us ‘for you know the feelings of the stranger.’ Rashi comments: ‘The feelings of the stranger — how difficult it is for him when people pressurize him’ (Rabbi Shelomo Yitzhaki (Rashi) on Exodus 23, 9 [34]). Do we really know how the stranger feels? I doubt it.

5. I am prepared to assume that the foreign workers — most of them — are prepared to suffer the violation of their dignity and liberty; even if they are not happy with this violation, they accept it with the submission that comes from their having no other choice. It is even possible that this lifestyle is the accepted norm in their countries; in any case, they accept their fate as long as they can send the monthly amount to their families to support them. But even if the foreign workers are prepared to accept their fate, we cannot allow the phenomenon of the restrictive arrangement to continue to exist in our community. Indeed, the foreign workers, the weak and vulnerable among us, have had the good fortune that good people have voluntary come to their aid. These are the petitioners before us. By virtue of the merit of these compassionate people, we have been given the good fortune and the merit of protecting the human image of those workers. And we will protect them, the foreign workers, even though they have not asked this of us.

6. I saw what was being done in our country and I remembered a ruling that was made abroad. This was in the famous judgment given in the United States in Lochner v. New York [29]. In that case the State of New York limited the hours of work in bakeries to sixty hours a week and ten hours a day. But this was, apparently, social legislation that was ahead of its time. The court struck down the law by a majority (Justice Holmes and three of his colleagues were in the minority), on the grounds that by limiting the number of hours of work the legislator was interfering arbitrarily in the freedom of contract protected in the Fourteenth Amendment of the Constitution, i.e., in the right of human beings to work as they see fit (‘the right to sell labor’). Later this decision was reversed, and rightly so. There are rights that were intended to protect a worker, and even if he wishes to do so, a worker may not and cannot waive them. Public policy prohibits us from recognizing the waiver. And in the same way that a person cannot, voluntarily, sell himself into slavery, so too we cannot recognize arrangements that, even though they are not slavery in the classic sense, nonetheless have certain aspects that were characteristic of slavery when it existed. See also HCJ 6845/00 Niv v. National Labour Court [23], at p. 695. We will not allow arrangements that involve a violation of human dignity, of the human image of a person, even if prima facie they were originally created — at least in part — for the benefit of that person. This is true as a rule, and it is also true in our case. A person is entitled to live a proper life.

7. In conclusion, I would like to point out that my colleague Justice Levy speaks in his opinion, time and again, of employers who have taken the liberty — contrary to the law — of ‘moving’ workers who were attached to them to other employers, and in this way they deprived the workers of their right to continue to reside in Israel. I can only express my amazement at how one person can act unlawfully, while another pays the penalty. The authorities should adopt a strict line with employers who act in this way, and the sanction that should be imposed on them is very simple: they should be deprived of the right to have foreign workers working for them. This is what should be done to lawbreakers, and when it becomes known that the authorities are acting in this way, it can be assumed that employers will conduct themselves properly.

President A. Barak

I agree with the opinion of my colleague Justice E.E. Levy and with the remarks of my colleague the vice-president, Justice M. Cheshin.

Petition granted.

1 Nissan 5766.

30 March 2006.

[1] Note: The original third respondent, when the petition was filed in 2002, was the Minister of Labour and Social Affairs, as stated in the title of the judgment. In 2003 the powers of this ministry with regard to employment matters were transferred to the Ministry of Industry and Trade, which was renamed the Ministry of Industry, Trade and Employment.

Full opinion:

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/02/420/045/O28/02045420.o28.pdf

AES Systems v. Sa'ar

Case/docket number:

CA 6601/96

Date Decided:

Monday, August 28, 2000

Decision Type:

Appellate

Topics:

Contracts

Promise of Confidentiality

Abstract:

Facts: Appellant No.1 developed independent computer word processing systems. Appellant no. 2 was the exclusive distributer of the systems in Israel, and also provided its customers in Israel with maintenance and repair services. The respondent had been an employed by the appellant as a computer technician, and had at the time of his employment, signed both an agreement not to compete with the appellant in anything related to the marketing and repair of Linear systems, as well as an “Agreement to Protect Confidentiality,” according to which he was obligated to maintain the absolute confidentiality of information that he may obtain in the framework of his employment.

The respondent was fired after twenty eight months of work, and started a business of computer systems services. He advertised his services in the newspaper as a repair and maintenance technician for computer systems, including Linear systems, he approached the customers of the appellant directly, using a customer list of the appellant’s. The newspaper advertisement led to a contract with The Armament Development Authority (RAFAEL-operated by respondent number two), according to which respondent would provide Linear services to RAFAEL. These services replaced the repair and maintenance services that had been given in the past to RAFAEL by the appellant.

Against the background of these events three suits were filed in the District Court. In one suit, in the framework of which a temporary injunction was issued prohibiting the respondent from dealing directly or indirectly in the sale or provision of service to Linear word processors for a period of eighteen months from the day the respondent was fired, which did not apply to the contract with RAFAEL, the appellant sued the respondent, for violation of his obligations to it, for doing damage to its property rights and its reputation, and for appropriating its trade secrets. In the second suit the appellants claimed that the respondent made use of the magnetic disks and diskettes which store backup programs, application programs and diagnostic programs that were developed by the appellant and disks that were prepared for use by them, thereby doing damage to their property rights, and violating their copyright. In this suit it was claimed that RAFAEL is assisting the respondent in his prohibited actions. The appellants demanded damages from the respondents, and from RAFAEL. RAFAEL filed a third-party notice. The third suit, directed by the appellant against RAFAEL, sought the return of hardware equipment and software lists that were lent by the appellant to RAFAEL and for payment of fair use. RAFAEL filed a countersuit in which it sought removal of a barrier that the appellant created in its workspaces. It also demanded equipment that it purchased and did not receive, and payment in the amount of NIS 7,022 for expenses it incurred as a result of violation of the agreement that the appellant had with RAFAEL. Consideration of all these suits was joined.

The District Court (Vice-President, Justice A. Goren), in its judgment, dismissed the appellants’ claims inasmuch as they related to violation of copyright or damage to reputation. It was also held that the respondent violated the agreement not to compete with the appellant’s business, and that the respondent made use of the customer list of the appellant within the eighteen month period, and that a contract with RAFAEL resulted from the violation of the agreement not to compete. It was also held that it was not proven that contracts with other customers resulted in agreements between those customers and the respondent, within the eighteen month period, and therefore it was not shown that agreement of the respondent in this matter was violated. The court also held that as a result of the agreement between the respondent and RAFAEL, RAFAEL ceased receiving Linear System maintenance services from the appellants. The court determined compensation for the appellants in the amount of $25,000. Additionally, the State of Israel (under whose aegis RAFAEL was operating) was ordered by the court to pay the appellant for the value of certain hardware and software items, which were given to RAFAEL by the appellants, and which remained in their possession. The appeal and the counter-appeal were directed against the judgment of the District Court.

Held: The Court allowed the respondent’s appeal voiding the award of damages to the appellant for the contract with RAFAEL. The court denied the appellants’ appeal and the appeal of respondent no. 2. The Court also denied the respondent’s appeal inasmuch as it related to software and hardware. The appellants were ordered to pay the respondent’s costs in the sum of NIS 15,000.

Voting Justices: