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17 July 2019
Collective labour law in Israel is a dynamic and constantly evolving field. In the past decade, many important changes have taken place with respect to collective labour law which have greatly influenced the scope of organised labour.
This article reviews the following guiding tenets and underlying principles of Israeli collective labour law:
The right to organise is one of the most important rights available to employees to improve their employment terms and job security. It gives employees the ability to work together to reduce the balance of power between themselves and their employers and to conduct negotiations that are as balanced as possible.
The right to organise includes the right of an individual to join, or not to join, a workers' organisation and the right of employees and employers to establish workers' and employers' organisations, respectively.
The right to organise is established by:
Collective Agreements Law
The Collective Agreements Law:
Protection of right to organise in case law
The labour courts prohibit harm to employees resulting from their involvement in union activity and have ruled that employers are precluded from taking any action that could affect an employee's membership of or activity in a workers' committee or organisation.
The labour courts have held that the burden of proof to determine whether an employee has not been harmed due to their organised labour activity rests with employers. The mere suspicion that harm caused to an employee was due to membership of a workers' organisation or activities regarding the right to organise is sufficient to shift the burden onto the employer to prove that such harm was the result of a legitimate business reason.
In a precedent-setting ruling, the National Labour Court held that an employer has no right to intervene in matters relating to the initial organisation of employees. The court held that the right to organise as a workers' organisation concerns only employees. Employers cannot participate in employee discussions regarding whether to organise themselves or discussions between employees and workers' organisations regarding membership. Further, employers must distance themselves from involvement in the organisation of their employees at each initial stage and are not interested parties, even if they believe that they will suffer economic damage as a result of such organisation. The boundaries of an employer's freedom of expression regarding organised labour and its implications must be examined on a case-by-case basis.
The court also established the following guidelines for examining the right to organise or breaches thereof:
The main purpose of a workers' organisation is to create collective labour relations based on a collective agreement that regulates the relationship between an employer and a group of employees whether they are all employees of the enterprise or a portion thereof.
It is important to define a collective bargaining unit, as it is the basis for defining the group of employees that will be subject to the collective agreement and with whom negotiations will be held.
Collective bargaining units are defined in agreements between employer and workers' organisations.
In cases where no such agreement is in place, the default is that a collective bargaining unit will relate to the entire business enterprise or company. When a group of employees requests to be defined as a separate collective bargaining unit, the courts will examine whether they have characteristics that distinguish them from the rest of the enterprise's employees.
From an employee perspective, the following are likely to be relevant considerations in defining a collective bargaining unit:
From an employer perspective, organisational management parameters should be considered. Within this framework, the aim should be, insofar as possible, to match collective bargaining units to the organisational and managerial structure of employees. The criteria to be examined include:
Where collective bargaining units have been analysed in the context of newly inaugurated workers' organisations, courts have ruled that these criteria should be:
Section 3 of the Collective Agreements Law provides that a representative workers' organisation must be one where no less than one-third of employees in a workplace are members.
Where disputes arise between workers' organisations as to which one represents employees, the organisation with the greatest number of members in the relevant workplace prevails.
The 'prevention principle', developed by the labour courts, is an important principle which aims to maintain stability in the workplace. The prevention principle aims to provide representative workers' organisations with an immunity period during which a competing workers' organisation cannot claim to represent employees in a specific workplace. The labour courts have held that a workers' organisation is entitled to an immunity period at all stages of collective negotiations, provided that:
The National Labour Court has established the following guidelines regarding competition between workers' organisations:
The National Labour Court has established the following guidelines with respect to the rights of employers to re-examine workers' organisation representation on their premises:
For further information on this topic please contact Shay Teken or Moran Friedman at Fischer Behar Chen Well Orion & Co by telephone (+972 3 694 4111) or email (firstname.lastname@example.org or email@example.com). The Fischer Behar Chen Well Orion & Co website can be accessed at www.fbclawyers.com.
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