Fading Corporatism: Israel's Labor Law and Industrial Relations in Transition

5. The Changing Metafunction of Labor Law

5 The Changing Metafunction of Labor Law 119 Labor Law’s Metafunction Labor law’s metafunction determines which type of regulation prevails among competing state-level modes of regulation—market ordering (private contracts ), state or transnational ordering (regulation), or autonomous lawmaking (most notably collective bargaining, but this can also include mandated employee participation schemes such as works councils; national, international , and sector-based codes of practice and conduct; and more). This function of law is not concerned with the determination of the end norms themselves but with the question of who determines the substantive norms that govern the employment relationship and how. This is the part of labor law that establishes the infrastructure for the governance of the employment relationship, and it therefore embodies the most fundamental principles of the national legal system. I therefore include in this function the body of law that determines other infrastructural matters, such as how laws are legislated, how international conventions are integrated into the legal system, and who can take part in autonomous lawmaking. These are all matters that affect the reproduction of norms in the industrial relations system. Labor law’s metafunction in the corporatist phase was fulfilled by pieces of legislation and adjudication that were intended to ensure the centrality of norms making by the social partners in collective bargaining. The components of this function were summarized in the conclusion of chapter 4. In this chapter I will address two complementary areas of transformation. • The Pluralization of Agents. The first issue to be addressed deals with the law of recognition—that is, the law that determines which agents can take part in labor-market negotiations. In this area there are two complementary trends that require attention: the relaxation of the entry requirements for new trade unions into the negotiations sphere and the rise of NGOs, which have an influence on the development of labor and social law. These associations are typical of pluralist interests representation. Together, these two trends represent a significant departure from the corporatist system of interests representation of the past. • The Decreasing Significance of the Collective Norm. Whereas in the past the collective norm was held to be superior, the current law, as will be discussed later, has gradually subordinated the collective norm to the two other spheres of norms making—contract and statutory regulation. The new labor law often imposes norms that substitute for the collective norms, disregards them, or overrides them altogether. To sum up, changing rules of recognition and the decline in the autonomy and superiority accorded to collective bargaining indicate that the prominent features of corporatist law have been replaced. In the past a limited number of agents negotiated the norms and mobilized the authors of law to codify their agreements. The collective agreement among these agents was the central norm of the system, whereby law and markets were subservient institutions. In the postcorporatist phase, more agents are involved in lawmaking, but the legal rule has become the subject of competition among them. The dynamic scheme of participation in the social and economic system came in tandem with the declining position of the collective agreement. These two processes are part of a single logic, and each is a cause and an outcome of the other. Recognition and the New Players in the Arena of Social Policy The recognition of the corporatist associations was never based on formal and blunt legal instruments, such as licensing. One “positive” method of recognition was the particular role ascribed to the corporatist associations in the process of legislation and its implementation. This will be discussed in subsequent sections of this chapter. A second form of recognition included the maintenance of a centralized trilateral system to which the representation of interests was exclusively channeled. This implied two “negative” restrictions: (1) the exclusion of employers’ and labor’s representation by associations that were not part of the trilateral pact and (2) the exclusion of associations that represented interests other than those of labor and capital. Interests representation was therefore channeled to a class structure, whereby the class was exclusively represented by the centralized associations. Neither form of exclusion was explicit . The first was extensively described in the previous chapter, alluding to the intricate structure of the law (both statutory rules and case law) that de facto posed insurmountable hurdles to the formation of trade unions outside 120 Fading Corporatism the Histadrut. The second form was...