An essential service was defined in the Electric Company case as a ‘service that, if stopped, will immediately and significantly endanger the life, personal security or health of the whole public or parts thereof…’
In the Mekorot case,1 the court considered the characteristics of a strike in an essential service, and it said:
‘The definition of the term “essential service” depends upon all the circumstances that arise in each individual case; sometimes there are grounds to broaden the definition of the service as essential. A service is defined as essential if stopping it may endanger the life, personal security or health of the residents. It is insufficient that the public is caused inconvenience or that the public is affected by the loss of a service that it is accustomed to have, or that it regards subjectively as important, such as television, radio, transport services, non-lifesaving medical treatment, etc… When we are called upon to decide whether a service is essential, we should consider, inter alia, the damage caused to the public, the extent of the strike, whether the Government is capable of providing the service instead of the strikers, whether the public has an alternative method of obtaining the strike-affected service, the length of the strike, etc.’
In that case, the court discussed how employees in the public sector have the freedom to strike, which is a basic right, and that there is no ground for prohibiting a strike in essential services on a sweeping basis. The court is required to apply the usual tools in collective employment law, including the principle of proportionality. Within this framework, it should examine, for example, whether the public will be harmed to an extent that requires the imposition of restrictions on the strike.
In the Electric Company case,2 the National Labor Court held that as long as the employees’ representation is conducting negotiations in good faith on the employment conditions and rights of the company’s employees following the reform, the supply of electricity to the public is not adversely affected, and the company is not caused severe harm that cannot be remedied, the intervention of the court in the negotiations taking place with regard to the ramifications of the reform on employees’ rights will be limited. The National Labor Court also held that after taking into account the freedom to strike on the one hand and all of the considerations that need to be weighed against it on the other, and after examining the nature of the sanctions that the employees of the Electric Company are adopting in relation to the purposes that they are seeking to achieve, the sanctions satisfied the criteria of proportionality.
Notwithstanding the liberal approach that Israeli law adopts to the right to strike, there are several restrictions on the right to strike, which mainly apply to strikes in the public sector. First and foremost, Israeli law absolutely prohibits strikes in the police and the security forces. 3 In addition to this, the courts have held that a case where it was possible to resolve the work dispute by means of negotiation or mediation and this was not done may be regarded as an ‘abuse’ of the right to strike and justify the restriction thereof. Case law has also applied the principle of proportionality in order to restrict strikes where it has been found that their scope is not commensurate with the purposes of the strikers.4
What of strikes in industries whose activity is regarded as essential to the public? The Work Dispute Resolution Law provides that in the civil service it will be possible to dismiss employees who went on strike or to sue them if the strike is declared to be ‘unprotected.’ Three types of strike may fall within the scope of this term:
- A strike of civil servants when they are subject to a collective agreement;
- A strike of civil servants when they are not subject to a collective agreement, but the strike has not been declared or authorized by the competent institution or institutions for this purpose and in the proceedings provided for this purpose; and
- A strike with regard to which notice has not been given pursuant to the law.5
Pursuant to the Work Dispute Resolution Law, the ‘civil service’ to which the restrictions apply includes public services such as water, electricity, fuel, air transport, and also ‘healthcare services.’6 The premise of the law is that these services are essential for the public, and therefore there is a justification for imposing restrictions upon them.7 It therefore follows that industries that are regarded as ‘essential’ are admittedly susceptible from the outset to many more restrictions on the right to strike, but the actual restrictions relate mainly to procedural aspects, and they do not purport to restrict the right to strike merely because the service is an essential one. According to these criteria, the current work dispute declared by the physicians does not fall into the category of restrictions and there is no legal justification for restricting it.
In specific instances, case law has emphasized the importance of protecting the public interest during a strike. For example, in 2003 the National Labor Court considered the strike declared by the New Federation. The court permitted the Federation to strike, but held that the strike should not ‘endanger human life or public health’ and that ‘the public should not be deprived of essential services such as water and electricity.’ This decision was based, inter alia, on undertakings that the Federation took upon itself as a part of its struggle.8
Indeed, Israeli employment relations have experienced several strikes even in fields that are regarded as essential. For example, the employees of the Electric Company went on partial strikes in 1991 and 1994, the employees of Mekorot stopped the supply of water to several local authorities in 1999, and the employees of Ben-Gurion Airport shut down the airport in 2003.9 And of course the physicians have twice gone on prolonged strikes that were recognized and afforded legal protection, in 1983 and in 2002. Now we shall discuss these strikes in detail.
1 LA (Nat) 19/99 Mekorot Water Company Ltd. – New General Federation of Labor, IsrLC 36, 560, at pages 575-576 (hereafter: ‘the Mekorot case’).
2 Supra, note 17.
3 HCJ 789/78 David Ofek et al. v. Minister of Interior et al. [1979] IsrSC 33(3) 480, at pages 481-489.
4 Supra, note 7.
5 Section 37A of the Work Dispute Resolution Law, 5717-1957.
6 Ibid.
7 LA (Nat) 1013/04 Discount Bank Ltd. v. New General Federation – MAOF Federation.
8 LA (Nat) 13/03 Tel-Aviv Trade Bureau and Trade Bureaus Association v. New General Federation of Labor.
9 Dreishpitz, supra, note 7.