Rights of Foreign Workers

Hotline for Migrant Workers v. Minister of Defense

Case/docket number: 
HCJ 7302/07
Date Decided: 
Thursday, July 7, 2011
Decision Type: 
Original
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.] 

 

A petition submitted by a number of human rights organizations that seeks to examine Israel’s policy regarding deporting to Egypt groups of foreigners entering Israel unlawfully through the Sinai, and who remain in areas under Israeli jurisdiction or on its international border, and this soon after their entry into Israeli territory (hereinafter: the arranged deportation.) The petition wishes to test the above policy, particularly to the extent that it concerns asylum seekers who claim they must be recognized as refugees. Despite changes and improvements to the procedure after the petition was submitted, the petitioners stand by their petition on both its aspects: both the general ones which touch on the lawfulness of the above arranged deportation policy as a whole, and the specific ones which touch on the different revisions which they believe should have been made to the procedure. Additionally, they raise arguments that go the alleged violations of the procedure. In its last supplementary response – which followed the Petitioners’ argument that in light of the actual changes in the area’s geopolitical realty, which resulted in the fact that there is currently no diplomatic agreement between Israel and Egypt, the primary foundation for the State’s claims as to the legality of the arranged deportation mechanism, joined by the depositions that reveal that the entry of Eritrean citizens was allegedly prevented by IDF soldiers without following the provisions of the procedure, is undermined – the State declared once again that, for the time being and since March 2011, no arranged deportations to Egypt have taken place.

 

The High Court of Justice (in a decision authored by President D. Beinisch, and joined by Deputy President E. Rivlin and Justice (Ret.) A. Procaccia) rejected the appeal:

 

Once the State has decided to suspend the implementation of the policy at this time, there is no practical meaning for extending a remedy that seeks to void it, because as long as the arranged deportation policy is not implemented, the remedy is theoretical. It is known, as a general matter, that this Court is not in the habit of pronouncing on matters of a theoretical nature but for extraordinary circumstances where in effect it is possible to make a ruling when a general issue that does not involve a particular matter is concerned. Moreover, since the petition was submitted so many proceedings have been held to change the normative and factual foundation that is relevant to it, that in its current form the petition has been exhausted.

 

Beyond this, under the circumstances, the HCJ cannot extend the petitioners their desired remedy because the current factual reality does not allow the examination of the State’s policy, which the petition challenges while properly addressing all the considerations. Both the State and the Petitioners asked to examine the legality of the arranged deportation policy, among others, through the lens of the procedure designed by Israel and Egypt for its implementation. While the State pointed to a diplomatic agreement that was previously agreed upon by leaders of the Sates, the Petitioners challenged this agreement and maintained that it is insufficient to meet the duties imposed by international law in this context. As it was additionally said in the hearings, this vague and ambiguous agreement caused difficulties even in the eyes of the HCJ, and the data presented by the Petitioners left unanswered questions as to the condition of the deported. Still, as this arranged deportation policy has been suspended for the time being, there is currently no longer reason to examine the legality of one arrangement or another, which is not followed. To all this it must be added that for a long period of time the situation in the Sinai poses real threats to Israel, because beyond its being an exposed and open border which allows the unmonitored entry of foreigners to Israel, it also serves as a danger zone for smuggling of weapons and drugs, and fertile ground for human trafficking. In light of these risks, the government has decided to build a fence along the southern border, the construction of which is being conducted at this time. Once the fence is complete, an additional change in the relevant factual circumstances will have occurred, and it may implicated the issues subject the petition as well.

 

Considering all of the above, at this time there is no justification and no proper basis, to subject the State’s suspended policy to the strains of judicial review. Should it be decided in the future to follow the arranged deportation policy once more, the Petitioners arguments are reserved and will be examined considering all of the factual and legal aspects that will be relevant at that time. In light of this conclusion there is not need to pronounce upon the second aspect of the Petitioners’ arguments.

 

Having said this, in light of the difficulties that the arranged deportation policy creates, and particularly taking into account the chaotic situation that is in effect in the Sinai and the concern for the welfare of the deported foreigners, the HCJ assumes that should it be decided to reinstate the policy of deportation to Egypt and in turn to restore its implementation through the procedure, this will be done according to the acceptable standards of international law and while putting in place suitable guarantees for the high likelihood of protecting the welfare of the deported. 

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

The Supreme Court sitting as the High Court of Justice

 

 

HCJ 7302/07

 

Before:

The Honorable President D. Beinisch

 

The Honorable Vice-President E. Rivlin

 

The Honorable Justice Emeritus A. Procaccia

 

Petitioners:

1. Hotline for Migrant Workers

2. Association for Civil Rights in Israel

3. Israel Religious Action Center - Israel movement for progressive Judaism

4. Physicians for Human Rights – Israel

5. ASSAF – Assistance Association for Refugees and Asylum-Seekers

 

 

v.

 

Respondents:

1. Minister of Defense

2. Minister of the Interior

3. Prime Minister of Israel

4. Attorney General

 

 

 

Petition to grant an order nisi

 

Dates of hearings:

12 Tishri 5768

21 Adar I 5768

8 Tishri 5769

6 Adar 5769

26 Kislev 5771

24 Adar II 5771

(September 24, 2007)

(February 27, 2008)

(October 7, 2008)

(March 2, 2009)

(December 13, 2009)

(March 30, 2011)

 

On behalf of the Petitioners:

 

On behalf of the Respondents:

Anat Ben-Dor, attorney at law; Yonatan Berman, attorney at law

Yochi Genessin, attorney at law

 

Judgment

 

President D. Beinisch:

 

Factual background

 

1.          In recent years, and before our eyes, a process is taking place whereby the State of Israel is being transformed into an attractive country that draws foreigners from various places throughout the world into its territory. Many people gather at its gates – by sea, by air and by land – and seek to be allowed to enter its borders and live there, whether for short periods of time or forever, for a wide variety of reasons. It appears that these people primarily constitute part of an international migration movement, occasioned by the phenomena of poverty and unemployment in many countries. The Petition before us, which was filed approximately four years ago, focuses on one of the aspects of this widespread phenomenon and concerns the group of aliens who enter Israel – illegally – via its border with the African continent. In recent years, the entry of these aliens – the majority of whom are residents of various African countries – via the land border with Egypt, has become a common and extensive phenomenon, resulting, inter alia, from the fact that this border in relatively long and predominantly, if not entirely, devoid of fences and obstacles. According to the State’s argument, the scope of this phenomenon significantly increased in 2007, when 5,208 persons entered Israel in this way; of these, 1,643 arrived in June and July 2007. According to data provided by the State, some 6,900 persons entered Israel illegally in 2008 – a 30% increase over the 2007 data; in 2009, on the other hand, this datum amounted to 2,719 persons, as at September 17, 2009. The updated data recently filed by the State show that in 2010, the number of persons who entered Israel illegally increased considerably, to 13,984 aliens for the entire year. From the beginning of 2011 and up to April 11, 2011, 2,163 aliens entered Israel illegally.

 

             This phenomenon presents complex problems and challenges for Israel, which require it to provide an adequate response in order to prevent unlawful mass immigration to Israel, while, at the same time, complying with its duties as a member state of the international community and refraining from violating the rights of persecuted persons in such a way as to endanger their lives or their liberty, if they to be deported from Israel. At the core of this balance system stands the real fear of expansion of the phenomenon to dimensions that the State of Israel will have difficulty handling without harm to either side of the equation – the State of Israel and its residents on the one hand and the aliens who enter its borders on the other hand. In the course of its attempts to arrive at various solutions for coping with the implications of this phenomenon, few years ago the State formulated a policy, pursuant to which, in certain cases, anyone who entered Israel illegally via the Sinai Peninsula and was found in the area under Israeli sovereignty or on its international border, was returned to Egypt immediately upon their entry into Israel (hereinafter: Coordinated Return). At the time of the filing of this Petition, it was argued before us that this policy was based on a diplomatic agreement between the Prime Minister of Israel at the time and the President of Egypt at the time.

 

2.          In brief, it may be said that during the period in which the Petition was filed, and in accordance with the guidelines for the Coordinated Return mechanism, as they were presented in the first Response by the State to the Petition which was filed on September 23, 2007, it was customary that upon the seizure of a person who entered Israel illegally via its border with Egypt, the person was questioned by a member of the Border Police or a soldier of the Israel Defense Forces who was appointed for that purpose. The questioning procedure included the provision of personal data, such as the ethnic origin of the person in question, and the documentation in his possession. At that stage, and provided there was no suspicion that the person in question had an affinity to terrorist activity or constituted another security risk, the possibility of returning him to Egypt was examined, in light of his personal data. The decision was made, as necessary, in consultation with a jurist from the Judge-Advocate General’s Office of the Israel Defense Forces. At that time, it was determined that the alien in question, pending his Coordinated Return to Egypt, would be held in a military facility, under adequate conditions, and that legal supporting documentation for his return would be prepared. It was further determined that the return to Egypt of anyone who entered Israel illegally would be coordinated with the relevant Egyptian authorities.

 

3.          Pursuant to an incident that took place in August 2007 (hereinafter: the August Incident), in which the State of Israel acted in accordance with the Coordinated Return policy described above and deported to Egypt a group of aliens – most of whom were citizens of Sudan – who had entered Israel on foot via the southern border, and whose fate, following their deportation, was uncertain, the Petition before us was filed on August 28, 2007 by a number of human rights organizations. The Petition sought to examine the policy in question, primarily with respect to the matter of asylum-seekers, who are protected under the 1951 United Nations Convention Relating to the Status of Refugees (Israel Convention Series 65, 5), and the 1967 protocol appended thereto, (Israel Convention Series 690, 3) (hereinafter: the Refugee Convention or the Convention). The Petition asked the Court to order the State not to act in accordance with the Coordinated Return policy and to refrain from deporting anyone who entered Israel without a permit and was found in the area under Israeli sovereignty or on its international border, including asylum-seekers. The Court was further requested to order the State not to deport the unlawful entrants before they were allowed to meet with representatives of the Office of the United Nations High Commissioner for Refugees (hereinafter: the Commission or the UNHCR) and to file an application for asylum; before an individual examination was conducted with respect to arguments of persecution or fear for the safety of the unlawful entrant, in his country of origin or in the country to which he would be deported; before a hearing was held by the entity competent to order the deportation; and before the unlawful entrant was allowed to have access to human rights organizations or to other entities that were likely to help him. According to the Petitioners, the manner in which the State acted in implementing the Coordinated Return policy contradicted the principle of non-refoulement (“non-return”), which is anchored in the Refugee Convention and imposes upon the State a duty of refraining from deporting or expelling a refugee to a place in which his life or his liberty is endangered.

 

4.          The State, for its part, made it clear from the very beginning that the Coordinated Return policy was intended as a means of coping with Israel’s unique situation, as set forth above – the vast numbers of aliens illegally entering its territory via its land border with Egypt. According to the State, the policy described above is consistent with the duties incumbent upon Israel under international law, most of which are founded on the Refugee Convention, and does not constitute cause for intervention by this Court. In this context, it was argued by the State that the policy of Coordinated Return to Egypt is consistent with Resolution 58, which was adopted in 1989 by the Executive Committee of the United Nations High Commissioner for Refugees. Generally speaking, according to the rule set forth in that resolution, refugees and asylum-seekers who had found asylum in a certain state (hereinafter: the Absorbing State or the First State of Asylum) would not be transferred to another state. The aforementioned Resolution 58 further stated that, should a refugee or an asylum-seeker nonetheless move from the Absorbing State to another state, he could be returned to the Absorbing State, provided that two conditions were fulfilled: first, the refugee or asylum-seeker would be protected against return to his country of origin, and second, the refugee or asylum-seeker could expect to receive basic humane treatment until a solution was found for him, possibly in coordination with the Commission. According to the State, in light of the diplomatic agreements that have been formulated, these two conditions were fulfilled when refugees or asylum-seekers were returned to Egypt according to the Coordinated Return policy. It was further argued that the mechanism is also consistent with Israeli domestic law, and, for this purpose, the State referred to HCJ 1764/99, Abu Muammar, Head of the al-’Azazmeh Tribe, v. Minister of the Interior (March 21, 1999).

 

5.          The first hearing on the Petition took place on September 24, 2007. In the course of the hearing, the State again presented the guidelines that it had formulated for the purpose of implementing the Coordinated Return mechanism, and announced that it intended to anchor this mechanism of operation in a procedure, whose formulation had not yet been completed. Accordingly, the State was requested to update the Court with respect to the procedure to be formulated and, in so doing, to comment on the manner in which the Coordinated Return to Egypt was to be examined, with special emphasis on the manner of performing the initial clarification, which was intended to examine whether the person in question was an asylum-seeker claiming recognition as a refugee, or an alien who was not seeking asylum and who belonged to the group defined by the State as “work migrants.” The State was further asked to comment, in its notice, on the training given to those handling the persons claiming refugee status and their qualification to examine the arguments pertaining to that status. Pursuant to that decision, on December 3, 2007 the State filed a supplementary notice, in which it announced that it had formulated a new procedure: the “Procedure for Immediate Coordinated Return of Infiltrators of the Israeli-Egyptian Border” (hereinafter: the Coordinated Return Procedure or the Procedure).

 

             Following formulation of the Procedure, in which the initial clarification was assigned to soldiers who were present at the site within the framework of their essential roles as defenders of the border, which was also a source of security risks, the Petitioners set forth their position on the subjects that they deemed to require improvement in the procedure. Indeed, at the time the Coordinated Return policy was declared, the mechanism for handling its implementation was still in its infancy and caused quite a number of practical and legal difficulties. The diplomatic agreement on which the State relied in its arguments was also vague and undefined. Moreover, the State had difficulty stating what became of the group of persons who were deported in the August Incident. Furthermore, at the time the Petition was filed, the problem raised therein had grown and become more acute in light of the fact that, at the time, many of those who crossed the southern border into Israel were Sudanese citizens, some of them Darfur refugees. With regard to the latter, no one could dispute that they were entitled to asylum. Under those circumstances, we also saw the importance of a more in-depth clarification of the issue and the improvement of the Procedure presented by the State, along with the mechanisms for implementing it. We therefore decided to leave the Petition pending and to ask the State for updates, on an ongoing basis, as to the changes and improvements made to the Procedure and its overall application.

 

6.          Accordingly, we held four additional hearings on the Petition and asked the State for update notices. In the notices that were filed from time to time, and in the hearings that we held, the State provided ongoing updates on the improvements that it had made to the Procedure and the manner of handling and training the Israel Defense Forces and Border Police personnel who were responsible, inter alia, for its implementation.

 

             Thus, the notices by the State indicated that, in the course of the period during which the Petition was pending, the efforts to establish a Special Unit responsible for in-depth questioning procedures within the Ministry of the Interior had borne fruit. The role of that unit is to perform an exhaustive and comprehensive questioning of persons seeking asylum in Israel, in order to ascertain the extent to which they met the requirements for gaining refugee status in Israel. It further transpired that the new unit had engaged employees who speak various languages and had trained them in various fields – including training in the initial record-keeping, training with the participation of professional entities with expert knowledge of various areas of Africa, and a course in inquiry and questioning procedures, which concerned the actual practice of those procedures. The State clarified that some workers in the unit are in charge of questioning aliens in an Israel Defense Forces facility in southern Israel, after the aliens in question are detained and arrested by Israel Defense Forces troops near the southern border. The State further emphasized the involvement of representatives of the Office of the United Nations High Commissioner for Refugees in Israel in this training, and even provided details as to the scope of the applications that were handled by the Questioning Unit employees.

 

             In addition, we were also told that, concomitantly, the Israel Defense Forces had formulated a military training program for soldiers posted near the Egyptian border to take part in the questioning procedure, as part of the implementation of the Coordinated Return policy. The training program that was formulated includes survey courses on various legal subjects, the powers vested in Israel Defense Forces troops regarding the treatment of the unlawful entrants, the military orders governing their handling and the socioeconomic and political situation in African countries. Subsequently, and after an additional hearing had been held before us, we were informed in an update notice that training programs of this type had begun to be implemented. It was emphasized that only soldiers who had attended at least one training program would be authorized to perform the questioning according to the Procedure, to complete the relevant form and, if necessary, to participate in performing a Coordinated Return. In accordance with the policy that was in effect at the relevant time, these questioning procedures, as set forth above, were implemented with the aliens shortly after their entry into Israel, and only thereafter was a decision made as to whether the alien would be transferred to the Ministry of the Interior for further handling.

 

             In the course of time, the State also informed us that additional changes and improvements had been made in the procedure for handling the aliens who enter Israel illegally via its southern border, and in the Coordinated Return process, and that a new procedure for that issue had been formulated (hereinafter: the Updated Procedure). Basically, an additional update notice indicated that the framework of the original Procedure had been preserved and that, in addition, other entities had been authorized to perform various operations pursuant to the Procedure as one of the processes for handling aliens who enter Israel illegally.

 

             It was also made clear to us, in the course of the hearings, that, whenever aliens who enter Israel illegally via the Egyptian border claim refugee status during their initial questioning, a Coordinated Return is not conducted;  rather, those aliens are transferred to the Questioning Unit in the Ministry of the Interior for further clarification. It also transpired, on the basis of the data provided by the State, that during the years in which the Petition was pending, relatively few Coordinated Returns had been implemented, all of them in one sector of the southern border, where, according to the State, there was proper coordination between the Egyptian and Israeli forces.

 

7.          Notwithstanding the aforesaid changes and improvements that were made in the Procedure, the Petitioners insisted on maintaining both aspects of their Petition – ­ both the general aspect, which concerns the legality of the Coordinated Return policy as a whole, and the individual aspect, which concerns various changes that they believe should be made in the Procedure. During the period when the Petition was pending, they also presented arguments about prima facie breaches of the Procedure. The State responded to these arguments, commenting on various incidents that took place during that period, and explained that when circumstances required the assimilation of procedures, it was done.

 

8.          Everything set forth above indicates that, since the Petition was filed – and, in many ways, as a result of the Petition – numerous developments have taken place with respect to the issue that it sought to raise, regarding the ways in which the situation and status of the aliens who cross the Egyptian border and enter Israel via the Sinai Desert are clarified.

 

             Thus, and most importantly, the Ministry of the Interior established a special questioning unit whose employees were trained to handle applications by persons seeking asylum in Israel, as is customary in many other countries throughout the world. The establishment of the unit was accompanied and supported by the United Nations High Commission for Refugees. In that unit, training was given to employees in charge of initial identification and questioning – including in an Israel Defense Forces facility in the South, after the detention and arrest of the aliens by Israel Defense Forces troops – as well as to employees in charge of performing in-depth interviews of the aliens (Refugee Status Determination – RSD). In addition, the State formulated a proper handling procedure for the affairs of aliens who enter Israel illegally from the Egyptian border, and, as set forth above, many changes and improvements were made in that procedure during the period the Petition was pending. These included the establishment of a mechanism that was meant to locate the asylum-seekers among those aliens, in such a way as to enable their cases to be transferred to the competent authority in the Ministry of the Interior for further handling; special training of soldiers responsible for questioning those aliens; formulation of appropriate questioning forms; and definition of the competent military entities for handling these matters. It also came to light that, during the time that had elapsed since the Petition was filed, the guidelines with regard to asylum-seekers were clarified, so that it seemed that any alien who claimed, upon encountering military personnel after crossing the border, that his life or his liberty would be at risk if he were returned to Egypt or to his country of origin, was transferred to the Questioning Unit in the Ministry of the Interior for further handling, and the Coordinated Return procedures did not apply to him. It further transpired, as set forth above, that, in any event, only a few Coordinated Returns were carried out, and only in certain sectors – those in which there was proper coordination between the Egyptian and the Israeli sides – and only in cases involving aliens who, after entering Israel, told the soldiers who questioned them that they wanted to enter Israel in order to find work. The State further argued that, in any event, the number of returned persons was rather small, relative to the number of entrants who had been caught on the border. Thus, for example, the State pointed out that, between the beginning of 2009 and September 12, 2009, in the sector where, as set forth above, the State felt there was adequate coordination, 23 Coordinated Return incidents were implemented, in which 217 aliens were returned, out of a total of 1,093 persons who had entered and had been caught in that sector. In addition, the State emphasized to us that, throughout the years, a change had taken place in the population that made up the majority of aliens crossing the border illegally: whereas, in the first two years in which the Petition was handled, most of the aliens had been Sudanese who claimed to have come from Darfur, in the last two years, most of the entrants were from Eritrea, and in light of the situation there, a temporary policy of non-refoulement is in force with regard to those aliens.

 

9.          Before our decision on the Petition was handed down, additional events took place that had a substantive impact on the subject of the Petition. These events are the geopolitical changes that occurred in the area and changed the political reality in Egypt. As set forth above, from the outset, we were troubled by the fact that, if and insofar as any unwritten arrangement existed with Egypt, it was prima facie an unsatisfactory one. With the overthrow of the government, we became even more troubled, in view of the increasing risk of uncertainty with regard to the prevailing situation in Egypt and, accordingly, with regard to the fate of the aliens being returned to that country.

 

             Therefore, as a result of these changes, and in order to examine their connection to the Petition, we decided to hold yet another hearing – the sixth in number – on the Petition, which took place on March 30, 2011. At the end of the hearing, we asked the State to file a supplementary affidavit, including updated comments on the prevailing reality on everything pertaining to the implementation of Coordinated Returns in accordance with the Procedure, in light of the geopolitical changes in the area and additional factual changes regarding the situation in Sinai. On April 18, 2011, the State filed a supplementary affidavit, on behalf of the commanding officer of the Edom Division, Brig. Gen. Tamir Yidei. The affidavit indicated – as the representative of the State had informed us during the hearing – that as a result of the recent developments in Egypt, it was not possible to implement the Coordinated Return mechanism in accordance with the framework that had been agreed upon in the past. This being the case, in early March 2011, Brig. Gen. Yidei ordered that implementation of the Coordinated Return procedure be suspended for the time being. The affidavit further indicated that, in 2010, Brig. Gen. Yidei had ordered that no Coordinated Returns of women and children were to be implemented, given the fear for their well-being because of the hardships involved in the return trip. The latter order had probably taken into account the situation prevailing in the Sinai, which poses a real danger for those infiltrating into Israel with the assistance of border smugglers, who misuse their power, thereby causing this helpless group to incur real harm – both physical and mental.

 

10.        On May 19, 2011, the Petitioners filed a Response to the supplementary affidavit by the State. In their Response, the Petitioners emphasized two aspects. The first of these was the change that had taken place in the geopolitical reality in the area, resulting in the fact that there is no longer any diplomatic agreement between Israel and Egypt. In light of this change, the Petitioners argued, the main basis for the State’s argument about the legality of the Coordinated Return mechanism had been undermined. As for the second aspect, the Petitioners appended two affidavits by citizens of Eritrea, which prima facie indicated that, in April 2011, when they attempted to enter Israel, they were prevented from entering by Israel Defense Forces troops and were returned to Egypt without having been questioned in accordance with the Procedure. The Petitioners argue that these affidavits indicated a discrepancy between the declarations by the State - that Coordinated Returns have been stopped for the time being - and the actual situation. It should be noted that, in addition to these affidavits, three other affidavits – which were filed by the Petitioners prior to the hearing on March 30, 2011 – attest to additional cases in which Israel Defense Forces troops prima facie prevented citizens of Eritrea from entering Israel, without having implemented the provisions of the Procedure in their cases.

 

11.        In an additional decision dated May 29, 2011, which was handed down pursuant to the Response by the Petitioners, the State was asked to file a supplementary notice “in which it will clarify whether, in its opinion, under the circumstances at the present time and in light of the reality prevailing in Egypt, Coordinated Returns are being implemented in accordance with the Procedure, without such a move endangering the lives or liberty of the deported persons.”

 

             On June 13, 2011, the State filed its last supplementary Response. Within the framework of that notice, the State again declared that, at this time, and since March 2011, no more Coordinated Returns to Egypt are being implemented, pending the adoption of a new decision in the matter. In addition, the State appended a copy of the Coordinated Return Procedure, which expressly stated that the Procedure was suspended “for the time being, pending the resumption of tactical coordination with the Egyptian security forces,” and that it would be possible to renew it “when the conditions that enable the continued implementation of the Procedure are resumed,” and only in accordance with a written instruction by the Operations Division in coordination with entities from the Judge-Advocate General’s Office. At the same time, the State made it clear that this decision, with regard to the suspension of the Procedure for the time being, had been made despite the fact that the events in Egypt had not led to the discontinuation of contacts between Israel and Egypt, and that close cooperation and coordination between the two states have continued at all times, on all levels and on a variety of issues. This position was supported by the Deputy Director-General for the Middle East in the Ministry of Foreign Affairs. The State further emphasized that, in any event, coordination between Israel and Egypt is not a sine qua non for the implementation of the Coordinated Return procedure.

 

Decision

 

12.        Under the factual circumstances extensively described above, and in light of the suspension of the Coordinated Return procedure, we have come to the conclusion that the Petition should be denied, subject to the fact that the parties reserve the right to pursue their arguments, should the issue arise again in the future.

 

             As set forth above, throughout the entire time the Petition was pending, it remained founded on two principal arguments. The first of these concerned the legality of the Coordinated Return procedure as a whole and sought the remedy of a Court order for its termination; the second concerned individual arrangements that were formulated within the Procedure for the purpose of its implementation.

 

             This being the case, once the State decided to suspend implementation of the policy for the time being, the granting of a remedy which seeks to cancel it becomes devoid of any practical meaning today, because, as long as the Coordinated Return procedure is not being implemented, it remains theoretical. As a rule, this Court does not customarily addresses itself to issues of a theoretical nature, other than in exceptional cases, where a judgment can only be rendered with respect to a general question that does not involve a specific case (see Administrative Petition Appeal 1789/10, Esther Saba v. Israel Lands Administration (November 7, 2010)). We believe that the subject matter of the Petition does not fall within the confines of the exception to the rule. Furthermore: since the Petition was filed, so many changes have taken place in its relevant normative and factual infrastructure that today, and in its present format, there is no further remedy that can be sought within its scope.

 

             In addition, under the circumstances of the case, we believe that we are actually incapable of granting the remedy sought by the Petitioners, because the present factual reality does not enable examination of the policy attacked by the Petition in a way that gives proper consideration to all of the factors involved. As stated above, both the State and the Petitioners sought to examine the legality of the Coordinated Return policy – inter alia, in light of the outline of action that was formulated between Israel and Egypt for the purpose of its implementation. Whereas the State, as stated above, referred to a diplomatic agreement that was formulated in the past between the leaders of the states, the Petitioners attacked that agreement and argued that it was not sufficient to ensure compliance with the obligations imposed by international law on this issue. As stated, this vague and undefined arrangement appeared difficult for us as well; moreover, the data presented by the Petitioners left unanswered questions about the situation of the returned persons. However, given that the Coordinated Return policy has been terminated for the time being, there is no longer any cause for examining the legality of an arrangement that is not being followed. To all of the above, we must add that, for quite some time, the situation prevailing in Sinai has been creating real risks for Israel. This is because, aside from its nature as an exposed and insecure border area that enables uncontrolled entry of aliens into Israel, it also constitutes a dangerous pivotal point for the smuggling of weapons and drugs, as well as extensive and fertile ground for human trafficking. In light of these risks, and as the representative of the State declared before us during the hearings, the Government decided to build a fence along the southern border, and that fence is currently under construction. Obviously, once the fence is completed, an additional change will take place in the factual circumstances relevant to the case before us – a change that may well have implications for the issue that constitutes the object of the Petition.

 

             Considering all the above, we believe that at the present time there is no justification, nor even any proper basis, for subjecting the suspended policy of the State to judicial review. Should it be decided, in the future, to reinstate the Coordinated Return policy, the Petitioners will have the right to pursue their arguments, which will be examined in light of all of the factual and legal aspects that will be relevant at that time. In light of our conclusion about examining the legality of the policy as a whole, and given the present factual reality and the suspension, in practical terms, of the Coordinated Return Procedure, we also do not believe, at this time, that the Court should address itself to the second aspect of the Petitioners’ arguments, which concerns the various sections of the Procedure, in which, as stated, many changes and improvements have been made over the years. The amended Procedure, after all its metamorphoses, can only be examined within the framework of a new, focused petition, if and insofar as this is required again in the future, and not within the framework of the Petition before us.

 

             Nonetheless, in light of the difficulties to which the Coordinated Return policy gives rise, especially given the chaotic situation which presently prevails in Sinai and the fear for the well-being of the returned aliens, we assume that, should it be decided to reinstate the policy of returning aliens to Egypt and, accordingly, to reinstate the Procedure, it will be done in accordance with the generally accepted standards of international law, including the provision of appropriate guarantees, in order to safeguard the well-being of the returned persons with a high level of certainty.

 

13.        In addition to this Judgment, we would nonetheless like to state that the issue that was raised in the Petition before us is, of course, not unique to the State of Israel, notwithstanding the fact that our security-related and geopolitical reality has unique aspects. Many countries throughout the Western world have found it necessary in recent decades, to establish various arrangements with regard to the proper handling of asylum-seekers who gather at their gates, because of the obligations of those countries under refugee laws. These arrangements are based on a complex and complicated system of balances – on one hand, preserving the sovereign right of the State to decide who may enter it; and, on the other, upholding the duty of protecting the human rights of this group, which seeks to flee the fear of hunger, wars or persecution and to provide itself with an alternative for a better life. Over the years, the Office of the United Nations High Commissioner for Refugees has emphasized its position on the importance of establishing various procedural arrangements, to enable proper and effective handling of applications made by asylum-seekers from various countries, while establishing general guidelines for assisting all countries in implementing the provisions of the Refugee Convention with regard, inter alia, to the definition of the term “refugee” and the ways of dealing with persons seeking to be granted such a status. Accordingly, many countries have adopted various arrangements, based, inter alia, on these principles. This is not surprising, given that the establishment of procedures and processes for handling aliens who cross borders illegally, and the possibility that some of those aliens are asylum-seekers, doubtlessly make it necessary to take into account international rules and standards based on the Refugee Convention.

 

             In Israel, as stated, the phenomena of unlawful entry by aliens, especially via the southern border, imposes an especially difficult task upon the authorities of the State: finding a solution that will reduce the number of uncontrolled entries while acknowledging the need to deal properly with the status of those who are entitled to asylum.

 

14.        Therefore, at this time and under the circumstances that have arisen, we find that there is no further remedy that can be sought within the scope of this petition; we deny the petition, while reserving the parties’ right to pursue their arguments, and with no order for costs.

 

The President

 

Vice-President E. Rivlin:

 

             I concur.

 

The Vice-President

 

Justice Emeritus A. Procaccia:

 

             I concur.

 

Justice Emeritus

 

             It is therefore decided as stated in the ruling by President D. Beinisch.

 

             Given this day, 5 Tammuz 5771 (July 7, 2011).

 

The President  The Vice-President      Justice Emeritus

_________________________

This copy is subject to editorial and textual changes. 07073020_N32.doc DZ

Information Center Tel; 02-65936666, website www.court.gov.il

 

Hotline for Migrant Workers v. Government of Israel

Case/docket number: 
HCJ 10843/04
Date Decided: 
Wednesday, September 19, 2007
Decision Type: 
Original
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: 
Primary Author
majority opinion
Author
dissent
Author
concurrence
Full text of the opinion: 

                                                                        HCJ 10843/04

1. Hotline for Migrant Workers

2. Kav LaOved Worker’s Hotline

v.

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.

 

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.

 

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.

 

 

Kav LaOved Worker’s Hotline v. Government of Israel

Case/docket number: 
HCJ 4542/02
Date Decided: 
Thursday, March 30, 2006
Decision Type: 
Original
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: 
Primary Author
majority opinion
Author
concurrence
majority opinion
Full text of the opinion: 

HCJ 4542/02

Kav LaOved Worker’s Hotline

and others

v.

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.

 

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.

 

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.

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