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

Introduction

Introduction Labor Law in Transition—Between Law and Industrial Relations 1 Over the last decade Israeli labor law—and, more generally, social law—has changed dramatically. The changes are not easily viewed from the outside. The two laws governing collective labor relations—namely, the Collective Agreements Law (1957) and the Settlement of Industrial Disputes Law (1957)—have hardly been touched. A broad range of new laws has not seemed to alter the basic premises of Israeli labor law but has merely dealt with issues not touched upon in previous legislation, most notably in the area of antidiscrimination and equal opportunities. The case law, developed in a common-law fashion, draws on self-reference and always cites previous cases to prove that little has changed and that most new developments are the result of incremental development. These convenient images of continuity conceal what the agents of law (judges, legislatures, labor lawyers, and NGOs) are all well aware of: labor law has changed dramatically, and nothing has been left intact. There is no single legal anchor that can demonstrate the nature of this change. Instead, an accumulation of changes has affected the whole. The existing laws of collective bargaining, dismissals, and equality have been transformed . The definition of “employee” has been rewritten over a short period of time. The courts gradually nudged aside the traditional doctrine of “employment at will” and replaced it with the “just cause” rule. Labor law, at all levels, has been constitutionalized. New doctrinal fields of labor law have emerged: employment equality; rights and obligations in the process of collective bargaining; the law of trade union organization drives; the law on the permissible scope of strikes; and the law of employees’ rights in the process of corporate mergers, acquisitions, and restructuring. Changes are not always in the areas most readers would expect to find them. For example, the guarantee of national health care insurance since 1995 introduced a radical rewriting of health law but also implied a considerable rewriting of labor law at the same time. The current state of affairs indicates that most legal references from more than ten years ago have become outdated. The types of changes that can be deciphered upon a close reading of the Israeli legal system are more commonly apparent in transitional political regimes. Yet in Israel there was no political revolution. Although in 1977 the right-wing Likud Party ended the hegemony of the Labor Party, which had been in political control from the founding of the state in 1948, the transition was democratic and did not alter the basic political foundations of the state. Israel did not go through the processes of transition that have been characteristic of, for example, Eastern Europe. The political transformation also predated changes in labor law by at least a decade. Moreover, much of the newly protective labor law has been legislated during the years in which the rightwing party has ruled. It is therefore not possible to directly link changes in law with the left-right changes in the Israeli political map. A relationship exists, but there are too many gaps to be filled. How, then, do we explain the extensive legal transition in Israel? There are two common ways of doing this. The first is to account for law’s transition by drawing on legal reasoning. This type of explanation suggests, for example, that the changes in labor law are a result of changing jurisprudence. The Supreme Court has developed a jurisprudence that draws on values, purposes, and balancing-of-rights tests. Consequently, the law is more commonly phrased in terms of good faith, human dignity, reasonableness, public policy, and the like. Two basic laws on human rights were passed in 1992 and have been acknowledged to comprise a constitution in a state traditionally thought of as having none. The Supreme Court has extended the protection of human rights to the private sphere. All of these general changes affected labor law. This type of explanation , however, is not sufficient. It does not explain why many branches of the law have generally remained intact while labor law has changed. Moreover, the explanations fail because they are self-referential. They do not explain why the general principles changed as well. At a higher level of abstraction, these explanations conceive of all changes in law as being derived from within the legal system itself. They assume that the legal system is closed and that it develops its own rhetoric, logic, and structures. Changes may...