Edo Eshet

En avril 2021, le Tribunal national du travail israélien a rendu une décision
historique dans l’affaire Kota. Dans une décision de 200 pages, le tribunal s’est prononcé sur le mécanisme juridique adapté dans les cas de déclaration rétroactivedu statut de salarié, une question épineuse du droit du travail israélien.

Representation bars are an essential tool for ensuring stability at the workplace. This article presents the recent representation bars that the Israeli National Labor Court was required to adopt when faced with the need for stability in workplace representation due to the fierce struggle taking place among rival unions in Israel. After reinforcing the justifications for the innovative, judicially-determined representation bars, the author calls for establishing another, judicially-determined bar – a successorship bar

Good faith bargaining is considered an essential element of a functioning labor relations structure. This article claims that under the Israeli legal system, the bargaining agents (both the union and the employer or the employer’s association) are subject to a common-law requirement of good faith bargaining which includes a mutual duty to genuinely seek to conclude a collective agreement.
After elaborating on the legal meaning of that requirement, and drawing on legal analysis regarding good faith bargaining in Australia, New Zealand, and Canada, the author claims that sometimes an ongoing failure to achieve a collective agreement (especially a first collective agreement) is grounded in the employer’s resistance to establishing a collective labor relations regime, and therefore should be treated as a breach of the good faith bargaining requirement.

This article seeks to trace a neglected legal institution in the field of collective labor law – the Employers’ Organization, and another institution whose existence is questionable (and in my opinion mistaken) - the Representative Employers’ Organization. Recent developments in this field require clarifying the legal status of these institutions. In essence, the article seeks to clarify the representational
model on which these organizations are based. The legal status of the Employers’ Organization as a party to a general collective agreement whose provisions have been expanded by means of an extension order is also discussed and the article labels organizations in this unique position as “Dominant Employers’ Organizations”. The article argued that Employers’ Organizations owe a duty of fair representation to their
members and that Dominant Employers’ Organizations owe a duty to act in good faith toward employers to whom the extension order applies, a duty which stems from their leadership role. Furthermore, the article argues that Dominant Employers’ Organizations should share responsibility for enforcing provisions of an extension order and it then calls for developing the law of competition among Employers’ Organizations.

In order to obtain legal recognition as a representative employee organization for the purpose of signing a special collective agreement under the Israeli Collective Agreements Law, a trade union need only acquire membership of one third of the employees included in the bargaining unit it seeks to represent, although any collective agreement signed would impose mandatory obligations on all the employees included in the bargaining unit, regardless of their membership.
One may wonder how this requirement is consistent with the basic principles of democracy and the principle of majority rule. Without justifying the requirement, the article attempts to deal with this question by providing a theoretical framework for the threshold of one third which is consistent with the principles of the democratic regime.
Based on Philip Pettit’s writing, the article argues that in the context of labor relations we should replace the tenet of Liberty as Non-Interference with Petitt’s concept of Liberty as Non-Domination. By doing so, the article seeks to conceptualize employees’ organizations that comply with certain conditions as an antidote to the power of the employer to control the workplace – an antidote that strengthens the freedom of workers. Therefore, according to the article, the threshold of one third should not be regarded as a failure to achieve majority support, but rather as a demand for stability of collective action in the workplace.

The article discusses the changes that have occurred in recent years in one of the cornerstones of labor law-the representation model. First the principles of the representation model are presented. In labor law, the representation model replaces personal employment contracts in collective-based employee representation. This employee representation has statutory authority to represent all workers in the bargaining unit, to negotiate collectively on their behalf and to sign a collective agreement that will regulate their working conditions. The article then reviews the main changes that have occurred in the collective representation model, in the light of changes that have also occurred in the political arena: the transition to a democratic and collaborative model; the erosion of the mandate which the delegate enjoys and a strengthening demand for differentiation among the employees' groups. The article proceeds to discuss the implications of these changes and the potential danger they pose to the existing representation model. In order to deal with these challenges, the article presents a preliminary analysis of two options available under existing law that can help to adapt the current labor law system to changes in the representation model: a "wake-up call" for the forgotten "duty of fair representation" which would strengthen the representative's legitimacy, and legal recognition of the non-representative employees' organization at the workplace , which would reinforce the collective voice of various groups of employees.

This article takes as its starting point the fact that we live in democratic and progressive societies, and all need to participate in social structures. Based on Kelsen’s analytical framework, this article argues that freedom for the individual in the (collective) labour context is a form of political liberty: the employee is granted the right to vote and to define his or her collective representative will. The majority requirement and the need to pay union dues represent an inevitable compromise between the need to act collectively and the need to ensure individual freedom. It is argued that the demand to ensure total freedom for those taking part in collective bargaining is basically a call for its destruction.

This article calls for the adoption of a temporary bargaining unit to be made up of employees who are in the process of organizing a union under Israeli labor law in order to shield their right to organize from employers’ attempts to frustrate this process. In the aftermath of the decentralisation process and the weakening of the Histadrut (Israel’s main trade union), questions regarding the proper composition of bargaining units arose in various cases that were decided by the labour courts. This article claims that the traditional attributes that were used by the courts in the past to determine the contours of the bargaining unit do not fit the new decentralised labor relations context, in which the employer resists the mere existence of union representation. In such cases, the employer often uses the bargaining unit attributes as a weapon against the right to organize by claiming that a wider bargaining unit is needed (and, as a consequence, the union loses its required statutory support).
In order to cope with that novel situation, the author calls for adopting a temporary bargaining unit to serve as a bridge to facilitate labour relations until such time as a more appropriate bargaining unit is created. Furthermore, the article calls for applying the bargaining unit determination attributes in a more relaxed way during initial organising campaigns, based on Canadian labour law, in order to both safeguard the right to organise and realign the bargaining unit determination with its original important mission – to facilitate employees’ representation at the workplace.

This article deals with the unique Israeli experience of a public workers work stoppage – the virtual strike. Under the Israeli common law version of the virtual strike, the Israeli National Labour Court ordered that the income derived from selling public services (airports, trains) should be deposited in a special account to be overseen jointly by the government and the exclusive representative union. That virtual strike was intended to serve as a substitute for a nation-wide traditional work stoppage.
The author claims that this virtual strike suffers from some teething problems. First, the virtual strike that was designed by the national labour court removed one of the basic elements that contribute to the power relations dynamic between the union and the employer during a work stoppage – the fact that the employees don’t earn wages during a work stoppage. During the newly designed virtual strike, the employees continue to receive their regular wages, as they continue to perform their work. Therefore, the employee’s incentive to stop the virtual strike is unclear. Second, the article suggested that the main advantage of the virtual strike, meaning the prevention of harm to the public (which had occurred under the traditional public sector nation-wide work stoppage), leads to a situation in which the public is indifferent toward the labour dispute, therefore eliminating the important public pressure needed in order to achieve compromise.

'Employment at Will' systems, in which employers have a right to dismiss employees for any reason or no reason at all, have been (rightly) criticized for allowing the arbitrary imposition of significant harms. 'Just Cause' arrangements, in which employers bear the burden of showing a justified reason for dismissals, in a process which often gives unions significant involvement, have been strongly resisted for causing inflexibility. Israeli labour law, which is relied upon here as an example, suffers from a combination of both extremes. UK law, which could be seen to offer a middle ground, is seen by labour law critics as offering too little protection for workers, and by the Government as offering too much. This article searches for other intermediate solutions. Four are discussed: the flexicurity system which is based on broader security provided by the State, rather than job security; a default (rather than mandatory) job security rule, powered by 'soft law' regulations; a prohibition on 'bad faith' dismissals, requiring the employee to prove a 'bad' cause; and finally, a system based on 'rich' procedural guarantees to ensure just cause. The article focuses on the last one, offering a case-study of a new model recently adopted in some collective agreements in Israel. In this model, a detailed process has to be followed to ensure that dismissals are not arbitrary, but at the end of the day the decision is left solely with the employer. We will discuss the experience with this model so far and whether it offers a balanced solution for employers, workers and society at large. Our discussion is based, among other things, on an empirical analysis of job security perceptions as learned from questionnaires we administered to several groups of Israeli employees.

תקציר בעברית: להסדרי ביטחון תעסוקתי (המכונים לעתים הסדרי "קביעות") יתרונות ברורים לצד חסרונות בולטים. מחד יש צורך חיוני לעובדים בהגנה מפני פיטורים שרירותיים, ומאידך יש הכרח לאפשר למעסיקים לפטר עובדים כאשר יש סיבה טובה לכך, וזאת בהליך מהיר ויעיל. נדרשים אפוא פתרונות ביניים יצירתיים בין שני הקצוות של "קביעות" חזקה מדי וסמכות פיטורים מוחלטת למעביד.מאמר זה מתמקד בבחינת פתרונות אפשריים בהתייחס לפיטורים בעילת "אי-התאמה" (להבדיל מפיטורי משמעת או צמצום). לאחר דיון קצר בהצדקות לכלל שאוסר על פיטורים ללא "סיבה מספקת", לצד הביקורת על כלל כזה, בוחן המאמר פתרונות ביניים אפשריים במישור התאורטי, ובכלל אלה שיטת ה-Flexicurity; כלל "סיבה מספקת" בעל מעמד של בררת מחדל דיספוטיזיבית בלבד; כלל סיבה מספקת כחלק מהסדר "חצי קוגנטי"; שימוש בעקרון תום הלב כמכשיר למניעת פיטורים שרירותיים; לבסוף, הצעה של זירוז ופישוט ההליכים הפרוצדוראליים לפיטורים מבלי לפגוע בהגנה המהותית. לאחר מכן פונה המאמר לסקור כמה וכמה התפתחויות מרתקות בתחום זה, אשר יוצרות ספקטרום רחב של אפשרויות - רמות שונות של ביטחון תעסוקתי - אשר המשותף להן הוא ההתמקדות בפן הפרוצדוראלי. נעמוד על ההסכם הקיבוצי של עובדי החברה הלאומית לדרכים משנת 2005, אשר אפשר לראות בו חלוץ המהפכה בתחום זה; על ההסדר החדש שאומץ בחקיקה משנת 2008 בנוגע לפיטורי עובדי מדינה, שתחולתו רחבה בהרבה, והשלכותיו אפוא חשובות במיוחד; על ההסדרים החדשים בנוגע ל"פיטורים פדגוגיים" של מורים, שהוסכמו כחלק מהרפורמות בתחום זה; על הסכמים חדשים במגזר הפרטי שממשיכים את אותה מגמה. המאמר מנסה להעריך באיזו מידה מספקים הסדרים חדשים אלה פתרון ביניים מאוזן וראוי.הטיעון המרכזי של המאמר הוא כפול: ראשית, במישור התיאורי אנו מבקשים לחשוף את השינויים המתרחשים לאחרונה בתחום הביטחון התעסוקתי ולמקום את ההסדרים החדשים בהשוואתם זה לזה וכן אל מול ה"קצוות" של ספקטרום הביטחון התעסוקתי. שנית, במישור הנורמטיבי נבחן את ההסדרים החדשים אל מול הדיון התאורטי (הצדקות וביקורות) בנושא ה"קביעות" בעבודה תוך השוואה לפתרונות אפשריים אחרים. בשורה התחתונה מסקנת המאמר היא אוהדת אך זהירה. להסדרים החדשים פוטנציאל חיובי, אך הצלחתם תלויה גם באופן שבו יפעילו בתי הדין את הביקורת השיפוטית על פיטורים מכוחם.English Abstract: Job security arrangements have obvious advantages, as well as some clear disadvantages. Employees should be protected from arbitrary dismissals, yet at the same time, when there is good cause for dismissal, employers should be able to do so swiftly and efficiently. We are therefore in need of innovative intermediate solutions, between the extremes of overly binding job security and employers’ unlimited power of dismissal. Following a brief discussion of justifications and critiques of a rule prohibiting dismissal without "just cause", the article considers some intermediate solutions on the theoretical level, including "flexicurity"; a default "just cause" rule; a "just cause" rule coupled with a derogation clause; prohibition of "bad faith" dismissals; and finally, the idea of a quick dismissal process, alongside a strong substantive rule. We then turn to discuss some recent developments which create a spectrum of options – varying degrees of job security – all of which focus on the procedural aspect. We discuss the 2005 collective agreement at Israel's National Roads Company; a new arrangement adopted in 2008 by the legislature concerning public servants; new rules concerning the dismissal of teachers; and some new collective agreements in the private sector which continue the same trend. The article tries to assess whether these new models offer a balanced intermediate solution.The article presents two main arguments. Descriptively, we seek to reveal the recent changes in the job security sphere and to situate the new arrangements relative to one another and to the two "extremes" of the job security spectrum. Normatively, we examine the new models in light of the theoretical discussion (justifications and critiques) of job security and compare them with alternative intermediate solutions. At the end of the day, we believe that the new arrangements have positive potential, but their success depends on the way in which the courts will review dismissals based on them.

This article takes as its starting point the fact that we live in democratic and progressive societies, and all need to participate in social structures. Whether we like it or not, we are all part of a political and social organization, just as we are part of multiple social communities. As Alexis de Tocqueville observed, as individuals in a given society, our associative efforts should be our strongest means for action and self-fulfilment (See Alexis de Tocqueville, Democracy in America (1835). ). Social structures need to solve collective action problems, to facilitate collective action and safeguard the participants’ rights. Collective labour is a social structure, and one that needs to solve collective action problems. Based on Kelsen’s analytical framework, this article argues that freedom for the individual in the collective labour context is a form of political liberty: the employee is granted the right to vote and to define his or her collective representative will. The majority requirement and the need to pay union dues represent an inevitable compromise between the need to act collectively and the need to ensure individual freedom. It is argued that the demand to ensure total freedom for those taking part in collective bargaining is basically a call for its destruction.

En avril 2021, le Tribunal national du travail israélien a rendu une décision historique dans l’affaire Kota. Dans une décision de 200 pages, le tribunal s’est prononcé sur le mécanisme juridique adapté dans les cas de déclaration rétroactivedu statut de salarié, une question épineuse du droit du travail israélien.

Enforcement of labor laws is inherently challenging and seriously lacking. Literature in this area has focused on proposing and examining legislative solutions and ways to make the work of enforcement agencies more effective. Without detracting from the importance of these aspects, we argue that courts have a role to play in improving compliance as well. We begin by reviewing three bodies of literature that explain how the law can be shaped to induce compliance: economic analysis (including behavioral law and economics); behavioral ethics; and the expressive function of the law. For each of these theories, we show the relevance for labor law. We then move to consider some specific contexts within labor law in which judges, in particular, can influence compliance. Relying on examples from Israeli case-law, we show that courts already take such considerations into account, and we argue that they should do so explicitly and more consistently. We discuss judgments that can be understood as an attempt to raise awareness to the law; the need to balance between ambiguity and specificity when judicially developing the law, to improve compliance; the possibility of using a third party to pressure others into compliance; and ways to induce compliance through remedies. We then reply to a possible critique that judges lack the legitimacy to take compliance considerations into account in their judgments.

'Employment at Will' systems, in which employers have a right to dismiss employees for any reason or no reason at all, have been (rightly) criticized for allowing the arbitrary imposition of significant harms. 'Just Cause' arrangements, in which employers bear the burden of showing a justified reason for dismissals, in a process which often gives unions significant involvement, have been strongly resisted for causing inflexibility. Israeli labour law, which is relied upon here as an example, suffers from a combination of both extremes. UK law, which could be seen to offer a middle ground, is seen by labour law critics as offering too little protection for workers, and by the Government as offering too much. This article searches for other intermediate solutions. Four are discussed: the flexicurity system which is based on broader security provided by the State, rather than job security; a default (rather than mandatory) job security rule, powered by 'soft law' regulations; a prohibition on 'bad faith' dismissals, requiring the employee to prove a 'bad' cause; and finally, a system based on 'rich' procedural guarantees to ensure just cause. The article focuses on the last one, offering a case-study of a new model recently adopted in some collective agreements in Israel. In this model, a detailed process has to be followed to ensure that dismissals are not arbitrary, but at the end of the day the decision is left solely with the employer. We will discuss the experience with this model so far and whether it offers a balanced solution for employers, workers and society at large. Our discussion is based, among other things, on an empirical analysis of job security perceptions as learned from questionnaires we administered to several groups of Israeli employees.

This article takes as its starting point the fact that we live in democratic and progressive societies, and all need to participate in social structures. Based on Kelsen’s analytical framework, this article argues that freedom for the individual in the (collective) labour context is a form of political liberty: the employee is granted the right to vote and to define his or her collective representative will. The majority requirement and the need to pay union dues represent an inevitable compromise between the need to act collectively and the need to ensure individual freedom. It is argued that the demand to ensure total freedom for those taking part in collective bargaining is basically a call for its destruction.