The collective dispute — whose ultimate form is the strike — constitutes an extreme example of a power struggle that the law, as a rule, accepts and permits. The accepted outlook is that struggles of this kind, even though they have a price from the viewpoint of society as a whole, are essential in order to allow workers to guarantee their rights.1 As the Labor Court has held —
‘The freedom to strike and the right to strike are “in the good company of other basic rights such as the freedom of speech, the freedom of demonstration and the freedom of occupation, which although they are not enshrined in statute, are not abstract rights but have a preferential legal status”… The freedom to strike is also one of the rights recognized in international law… and it is recognized in international conventions to which Israel is a party.’2
In Israel, the right to strike is not expressly enshrined in statute as one of the basic human or civil rights. The legislature, like legislatures in other countries, refrains from defining what constitutes a ‘strike.' 3 The reason for this is a lack of desire or ability to intervene in employment relations, and a desire to avoid inflexibility that would be created by any definition and prevent giving expression to changing needs and circumstances within the framework of employment relations.4
Nonetheless, the right to strike is regarded as one of the basic socio-economic rights in a democracy, and it is recognized as such in international law5 and also in the statutes and case law of various countries.6 In Israel also, the right to strike has been recognized de facto as a basic right and has become one of the three elements that constitute the freedom of employees to form unions, together with the freedom to form unions and the freedom to conduct collective negotiations:7
‘A strike is a pressure operation adopted by a group of employees within the framework of their professional struggle with the employer, in order to achieve demands with regard to their work conditions or with regard to the demand of other employees that have been presented to their employer.’8
The freedom to strike derives therefore from the right of employees to form unions and it is an integral part of democracy. Notwithstanding, the strike should be the last measure within the framework of the professional struggle, after negotiations and mediation have been exhausted. It should be noted that the employer also has a right to protect his positions in this power struggle.9
The recognition of the freedom of employees to form unions and their right to strike is intended to balance employment relations between the employer and the employee, which is by its very nature characterized by an inequality to the employee’s detriment.10
The freedom to form unions, with its three elements, is not a purpose in itself but is intended to guarantee the realization of the purpose of employment law — protecting the employee and the means of influencing the the terms of his employment and guaranteeing his human dignity. Indeed, the High Court of Justice has held that the right to strike ‘… will from now on be included in the value of “human dignity” that is enshrined in the Basic Law [Human Dignity and Liberty].’11 President Barak expressed his opinion in the context of the question whether the right to strike is collective or personal, and he held:
‘It seems to me that there are grounds for the claim that human dignity is the source for the employee’s freedom to strike and the employer’s freedom to declare a work stoppage. This gives expression to the autonomy of their individual will. From the employee’s viewpoint, it reflects his right to form a union and to realize his professional struggle by means of the strike. From the employer’s viewpoint, it reflects his freedom of occupation.’12
Employment law seeks not merely to shape the rules regarding employment conditions but also to guarantee the means whereby the employee can influence his employment conditions and obtain recognition for his protected rights.13 In this process, the strike is recognized in Israeli law as a part of the process of negotiations between the employer and his employers, and it is a legitimate tool of the employees in seeking to improve their employment conditions.14
Since restrictions on the freedom to strike make it difficult for employee’s unions to maintain the existing union, to carry out their function and to persuade employees that are not members to join the union, the labor court takes into account the need to strengthen the right of employees to form unions and has even taken action to strengthen the freedom to strike and limit the restrictions imposed upon it:15
‘The right to form unions maintains the dignity of the employee in the workplace, where he spends, as a rule, a third of his day. The individual employee in inferior in strength to the employer and in the vast majority of cases he is not able to bargain or negotiate fairly. Therefore, by joining a union, the worker increases his strength and achieves equality in negotiations with the employer, since an organized group of all the employees of the plant or all of the employees in the industry can conduct negotiations with a strength similar to that of the employer.’
It would therefore appear that employment law seeks to protect the basic rights of employees, including the freedom to strike and form unions, while taking into account the rights of employers.16
It is important to clarify that the union is liable to exercise the right to strike in good faith. The employer and the union are liable to conduct the professional strike in accordance with the rules laid down by legislature and case law. A departure from these will compel the Labor Court to intervene, in order to maintain a proper employment relationship.
1 Guy Davidov, ‘The Principle of Proportionality in Employment Law,’ 31 Iyyunei Mishpat (5768).
2 LA 48/4-23 General Federation et al. – Airports Authority, IsrLC 19, 449.
3 Yehudit Galili and Michal Koreh, The Right to Strike: The Nature of Limits and Future Changes, Knesset Research and Information Center, January 19, 2004.
4 LA 36/5-4 Moshe Ginstaller et al. – State of Israel, IsrLC 8, 3. Ruth Ben-Israel, Strikes and Work Stoppages from the Viewpoint of Democracy, Open University, Tel-Aviv 2003, page 86.
5 The right to strike has been recognized in the International Covenant on Economic, Social and Cultural Rights, in the Report of the International Labor Organization and in the European Union, such as in the European Social Charter.
6 Or Tutnauer, The Right of Return, The Israeli Institute of Democracy (2011).
7 Shurik Dreishpitz, ‘There’s a Strike Here! On the Israeli Strike Culture,’ The Israel Institute of Democracy (2011).
8 HCJ 525/84 Nabil Hatib et al. v. National Labor Court et al. [1986] IsrSC 40(1) 673 (hereafter: ‘the Hatib case’). Ruth Ben-Israel (ed.), Strikes and Work Stoppages from the Viewpoint of Democracy, Open University, Tel Aviv (2003), at pages 138, 146.
9 Supra, note 10.
10 Ruth Ben-Israel, Employment Law, vol. 1, the Hebrew University, Tel-Aviv (2002), at pages 45-46.
11 HCJ 1074/93 Bezeq – The Israeli Telecommunications Corporation Ltd. v. National Labor Court in Jerusalem et al. [1995] IsrSC 49(2) 485 (hereafter: ‘the Bezeq case’).
12 A. Barak, Legal Interpretation, vol. 3, Constitutional Interpretation (1994) 431.
13 Ruth Ben-Israel, 'The Ramifications of the Basic Laws on Employment Law and Employment Relations,’ 4 Employment Law Annual 27 (1994), at page 186.
14 Steve Adler, ‘The Freedom to Strike as Reflected in Case Law,’ Berinson Book, part 2 (2000), Nevo Publishing.
15 LA 4-10/98 Delek the Israel Fuel Company Ltd. – New General Federation of Labor – Professional Organization Department (given on October 29, 1998).
16 Supra, note 10.