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

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

¹    Supra, at note 22.

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

³    Ibid., at page 33.

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