Labor legislation in force in the State of Israel is a composite of three statutory sources:
(1) Ottoman: a number of paragraphs dealing with labor law are included under the chapter "Hire" in the Ottoman Civil Code (Mejelle);
(2) Mandatory: in particular the Safety at Work Ordinance (New Version 5730–1970);
(3) Legislation of the Knesset, replacing most of the Mandatory legislation on the subject with original laws, of which the following are the most important: Annual Leave Law, 1952; Hours of Work and Rest Law, 1951; Wage Protection Law, 1958; Apprenticeship Law, 1953; Youth Labor Law, 1953; Employment of Women Law, 1954; National Insurance Law, 1953; Collective Agreements Law, 1957; Settlement of Labor Disputes Law, 1957; Employment Service Law, 1959; Severance Pay Law, 1963; Male and Female Workers (Equal Pay) Law, 1964; Labor Courts Law, 1969. In addition, labor law in Israel has been further interpreted and evolved in the case law precedents of the Supreme Court. These, like the above Knesset laws, reflect the substantial influence of Jewish law, noticeable particularly in the Wage Protection Law, 1958 and Severance Pay Law, 1963 (see Elon , bibl.).
The Labor Courts Law sets up a special judicial hierarchy, at both regional and national levels, for airing disputes between master and servant, without right of appeal to the regular courts. The existence of a special judicial machinery in labor matters is also to be found in the history of Jewish law. In the European Jewish communities of the late Middle Ages, and within the framework of the various artisans' and traders' associations, special courts were elected in accordance with articles approved by the communal rabbis.
LABOR LAW DECISIONS IN ISRAEL
As stated, the State of Israel has a labor court system with jurisdiction over labor-related matters. Some of the most important labor legislation in the State of Israel, such as the Wage Protection Law, 5718–1958, is based on Jewish law, and the labor courts rely on principles from Jewish law in deciding labor issues brought before them. This article presents several cases brought before the Israeli Labor Courts and the Israel Supreme Court which were adjudicated having consideration for the position of Jewish law.
The Prohibition on Delayed Wage Payments for Contracted Labor and the Distinction between a Sales Contract and a Service Contract (Ḥozei Kablanut). In Zikit v. Eldit, the Israeli Supreme Court (CA 368/77, Zikit v. Eldit, 32(3) PD 487) was required to examine this issue. In that case, a company provided a quantity of cloth for printing patterns on cloth to be used for bathing suits. The printing was defective, and as a result the company that owned the material was injured. The Court was required to decide if the transaction was a sale, in other words whether the printing company sold a product, in which case the provisions of the Sales Law, 5728–1968, would apply; or was the printing company under contract for services (kablanut, hereinafter "contractorship agreement") and as such the Contract for Services Law, 5734–1974 would apply. The court (per Justice Menachem Elon) pointed out that "when we engage in the interpretation of sales and contractor law, enacted by the State, we must first and foremost examine the position of the Jewish law regarding the problems brought before us" (ibid., p. 493).
The Court cited the responsum of Rabbi Aharon Sasson (Resp. Torat Emet, 119), which considered whether the commission of work to a craftsman (in that case – ordering a ketubbah (marriage contract) from a scribe) should fall under sales or contract law principles, which would affect the application of the prohibition against delaying wage payment. The prohibition of delaying the wage payment is not limited to client commissioned work, but also applies to contractorship agreements: "Inasmuch as contractorship is like hiring [a worker] and it obligates him to pay him on time" (Maim., Yad, Sekhirut 11:3).
Rabbi Aharon Sasson did not consider the scribe from whom the ketubbah was ordered a contractor, because "the contractor receives the object from the one who orders the work and prepares accordingly; this does not confer any rights or ownership in the object, and he is therefore referred to as a contractor [one engaged in providing services to a client's object]." In contrast, when the workman also supplies the materials, their agreement may be considered a sales contract and not a contractorship agreement. In such a case, the non-payment is not a delay in the payment of wages, but a debt for which there is an obligation to pay, but the law of delay in payment of wages does not apply (Zikit decision, p. 494).
The court goes on to discuss the responsibility of the hired craftsman to pay for damages caused to an object given to him for repair (Yad, Sekhirut 10:4; Zikit decision pp. 496–497).
Employer's Responsibility to Protect Well-Being & Safety of Employees
Punishing a person who indirectly or accidentally caused another's death to exile in a city of refuge is not applicable today, yet the responsa literature deals with situations of an employee's or an agent's death while employed or under contract. A talmudic aggadah
(Sanh. 95a) relates that King David was punished because his actions, albeit indirectly, resulted in the deaths of the priests of Nov, Doeg, Ahitophel, Saul, and his three sons. David did not perform any active deed to cause these deaths, and the decisors (posekim) infer from this aggadah, by the rule of a fortiori, that an employer whose employee is injured while performing duties, is not liable under tort law, but he is required to atone and repent (kapparah and teshuvah), and is even to give charity to the orphans of the victim or to other indigents (Responsa Mahari Weil, 125; Resp. Rabbi Akiva Eiger, Tanina ed., 3; see Divine Punishment ). Other halakhic decisors distinguished between a paid employee, for whom the employer is not obligated to atone for the bodily injuries, and the unpaid worker (Responsa Ẓemaḥ Ẓedek, 6). Rabbi Ouziel (Resp. Mishpatei Ouziel, 4 – ḤM, no. 43), rules that indeed by law, when a worker is injured or killed, the client is not liable for his worker's damages or death, but only obligated to atone, and there is no legal recourse for receiving monetary compensation from the employer. However, Rabbi Ouziel emphasizes that in our times, owing to industrial development there are many more dangers for workers and the current situation requires far more caution; "the employer is cautioned by the Torah to do all that is possible to protect his workers from the risk of death or injury, as it is written: 'And you shall make a parapet for your roof that you shall not bring blood upon your house' (Deut. 22:8), which includes any hazard that is likely to harm, such as a dangerous dog and a shaky ladder, etc. (BK 15, and Sh. Ar., ḤM 327:5). Thus, it is the obligation of the employer or the contractor, to take all precautions to ensure that the work environment and conditions are free of hazard or danger that may cause any sort of disaster." Rabbi Ouziel adds that in our times, when it is accepted practice to insure employees against injury, an employer would be halakhically required to insure his employees.
These statements regarding the employer's responsibility for the safety of his employees, were cited in the decision of the Israeli Supreme Court in the Pinkas case (Crim. A 478/72 Pinkas v. The State of Israel, 27(2) 617, pp. 627–629; per Justice Kister), as inspiration for the criminal liability of an employer who sent his worker to carry out a job in a dangerous and negligent manner as a result of which the worker was killed.
Dismissing an Employee Suspected of Stealing
Rabbi Moses Isserles, in his glosses on Shulḥan Arukh (ḤM 421:6), rules that an employer who suspects that his worker may have stolen from him is entitled to dismiss him, provided that he has proven grounds for his suspicions before a court, or if the employer has solid proof of such theft, or if the worker has the reputation of being a thief (Resp. Divrei Malkhiel, III, 151–152).In the Resp. Divrei Ḥayyim (1, YD, 11), it was held that mere suspicion is not sufficient, and only where there are witnesses to a theft is it possible to dismiss the worker. These rulings indicate that the employer's concerns and suspicions do not constitute sufficient grounds for dismissing a worker; however, when these misgivings are substantiated by evidence, they are grounds for dismissal.
The Regional Labor Court of Tel Aviv Jaffa (LF 32309/98, Yitzchak v. The Aircraft Industries; Judge Tennenbaum) adjudicated a case where a worker was dismissed after being suspected of stealing. The worker filed a claim for the entire amount of his severance pay, and the question of his employer's justification for dismissal was raised. The court based its decision on principles of Jewish law, and examined the degree to which the robbery had to be proved to constitute grounds for dismissal and the extent of his entitlement to severance pay.
Employee Disclosure of Trade Secrets
Jewish law's approach to business competition is based on the principle that, with the exception of some specific cases, free competition should not be interfered with (see: Business Ethics ).
Nevertheless, even under Jewish law, an employee who during his employ was privy to privileged information and then leaves his employ may not divulge such information, even where his employment contract does not specifically stipulate this; Rav Samuel Wozner states the following (Resp. Shevet ha-Levi, 4:220): "It is clear to me that a worker who works in a place where they work with secret things, or use instruments that are still considered secret, or even in an activity related to an invention, is prohibited from making a copy for himself or for others and this falls into the legal category of stealing, even when there was no special contractual stipulation, because such matters are self-understood and one should be very careful about revealing them."
According to another approach, a worker is permitted to use his employer's trade secrets, provided that he paid the employer for their value; and if he has not paid him the value of the secret he is interested in using, he is forbidden to use it.
The Regional Labor Court in Haifa (Lab. App. 2999/03, Carmel v. Ben Shimon; per Judge Werbener) cited these rulings when adjudicating a case where an employee's former employers requested a court injunction against a competing business to prevent it from employing the said employee, because of their concern that he would disclose their trade secrets.
Firing an Employee When His Term of Employ Has Not Been Extended
The responsa of Rabbi Moses Feinstein deal with this subject in detail. Rabbi Feinstein holds that even if the employee is hired for only one year in a place where one usually annually renews employment contracts every year, and he continues to work there, even without a renewed contract, it is still not permissible, absent of other grounds, to dismiss him (Resp. Iggerot Moshe, ḤM 1:76). In another responsum Rabbi Feinstein deals with the question of an employee for whom no extension of his term of employment was established and whether it was permissible to fire him without grounds. Rabbi Feinstein answers that it is not permissible to fire an employee without clear cause, even when the policy at the specific place of employment regarding the hiring of employees for an unlimited period of time is unclear (ibid., 75)
The Regional Labor Court in Tel Aviv-Jaffa (LF 8338/00 Krigsman v. Reshet ha-Ganim shel Agudat Yisrael; per Judge Tannenbaum) dealt with this subject, and quoted extensively from these rulings of Rabbi Feinstein.
The Possibility of Limiting the Employee's Work Hours
The basic approach of Jewish law to this question is set forth in the Tosefta (BM 8b) which states: "A worker is not permitted to do his work in the night and to hire himself out during the day…." The rationale for this edict is explained by Maimonides (Yad, Sekhirut 13:6; Rema, ḤM 337:19): "… Such behavior would constitute stealing from the employer, for his [the employee's] strength will give out and his mind will be weakened and he would not do his work with energy."
Teachers and teaching hours have received special treatment in this matter from both the Maharam of Rothenburg in his responsa, and the Rashba (Responsa Maharam of Rothenburg, 667; Resp. Rashba, 7:516). They emphasize that teachers can be prevented from contracting in supplementary work, if such work would hamper their ability to teach in an appropriate manner.
The Talmud (BB 21a), when discussing the community's responsibility to organize an educational system, explicitly limits the number of students allowed for each teacher. Raba rules that one teacher should not teach more than 25 children. When there are more than 25 students – up to 40 – an additional person is seated with the teacher to assist him and when there are more than 40 students, the community must provide two teachers (Yad, Talmud Torah 2:5). Such limitations insure the proper fulfillment of the community's duty to procure enough teachers, for an appropriate, functioning educational system, and are not aimed at limiting the teachers' employment opportunities. However, other community regulations establish limitations and prohibitions regarding the number of students a teacher may accept (regarding these regulations, see Bibliography, Shchipinsky).
In this context, the Regional Labor Court of Tel Aviv-Jaffa (LF 913517/99 Asher v. The State of Israel; per Judge Tannenbaum), was requested to invalidate a provision in the collective labor agreement applicable that limited the number of instruction hours a teacher was permitted to work to 140% of a full-time position.
Dismissing a Worker Who Has Reached Retirement Age
The basic approach of Jewish law regarding employment in public positions is that a person should not be removed without good cause (Resp. Rashba V. 283). Rabbi Joseph Caro (Sh. Ar., OḤ 53:25) ruled as such regarding a cantor. Rabbi Israel Meir of Radin stated that this ruling applies to all positions, "so that they [the employees] should not suspect that some defect was discovered in them" (Mishnah Berurah, ad loc. subsection 73).
Rabbi Yehiel Michal Epstein deals with the appointment of various community officials, and ruled as follows (Arukhha-Shulḥan, ḤM 2:333.15):
"… This was the custom in all of the Jewish Diaspora that from his appointment (in the letter of appointment to the Rabbinate) the rabbi is employed for the city's benefit, this was done so that the rabbi would not change his mind [and resign from his position] over the time … but the people of the city can never change their mind, unless some taint was found in him. This is also the law regarding a cantor and a sexton and all kinds of other public appointments – that as long as he is not found wanting, he has a lifetime position. And this is the custom …"
The principle applies not only to those of community related positions, such as a rabbi and a cantor, but also those of any public position; one who holds a position has a presumptive right to it (Rabbi A.I. Kook, Resp. Oraḥ Mishpat, ḤM, 20).
In the responsa of Rabbi Ezekiel Landau , there is explicit reference to the chronological age of retirement (Resp. Noda Bi-Yehudah, YD, Tanina ed., 1). Rabbi Landau was asked about the law regarding a ritual slaughterer whose "hands shook," in other words, someone physically incapable of fulfilling his responsibilities. In his response, Rabbi Landau ruled that such a person must be removed from his position, yet he refused to apply this ruling retroactively – i.e., he did not disqualify the meat this ritual slaughterer had slaughtered. In his discussion Rabbi Landau rejects disqualifying shohetim at the fixed age of 80, exclusively on the basis of their having reached that age.
These rulings demonstrate that Jewish law rejects mandatory retirement based exclusively on age. A person's age is only significant to the extent of imposing a duty to examine the employee's functioning at an age at which might be assumed that his age affects his functioning. However, where the retirement policy obligates a person to retire after a specified period of time, that custom mandates one in such a position to leave his job when he reaches that specified time (Resp. Rashba, 5.283).
The Regional Labor Court in Tel Aviv (LF (Tel Aviv) 912492/99 Meor v. The Open University; per Judge Tannenbaum) thus adjudicated in an action filed by an employee who had been dismissed upon reaching the age of 65.
The Obligation to Provide an Employee Work
The Talmud (BM 77a) establishes that an employer who hires a worker for a fixed period of time, and does not provide him work for part of that period of time, is still obligated to pay him [for the entire period]. The exception to the rule is when the worker, upon accepting the job, knew that circumstances might arise that would prevent the employer from providing him work. In such a case, if in fact the employer failed to provide him work for the entire period, the worker is not entitled to full wages. If the work is terminated during that period and the employer is no longer able to employ him, if he is able to provide him with work, no more difficult than the work for which he was originally employed, the employer should allow the employee to perform such work. If there is no work available, the halakhah depends upon the type of worker: if the worker is accustomed
to hard work and the absence of work will weaken his body, not working is tantamount to damage, and the employer must pay him his full wages. If the worker is not such a worker and he enjoys the "holiday," even if it is forced upon him, the employer must only compensate him for his loss of time.
The halakhic literature provides definitions of workers for whom not working causes distress and for those who enjoy being unemployed. Regarding teachers, it was ruled that unemployment is a source of distress (Resp. Rashba attributed to Nahmanides, 1). It was ruled that when a rabbi is hired to deliver Sabbath sermons in the synagogue, which brings him joy and fulfillment, being unemployed distresses him. In contrast, a rabbinical judge or regular judge who rules in matters of ritual law (issur ve-heter) because his work is difficult and exhausting does not enjoy his work (Resp. ha-Rama, 50).
In one unusual case, specific performance of the employment contract was imposed on the employer, such that it obligated him to continue providing work for the employee, and not suffice by paying of his wages while leaving the employee with nothing to do (Resp. Mikhtam le-David, ḤM, 17; 18th century).
The Israeli National Labor Court considered the question of whether an employer was obligated to pay the full salary (with social benefits) or just the basic salary without these added elements in a case when he told his employee that he would continue to pay him a salary, but that he should stay home and not come to work (DBA 4–21/51 The Histadrut v. Tahel, 23 PDA 3; per Judge Steve Adler).
The court referred to Jewish law sources cited above and pursuant to the provisions of the Foundations of Law Act, 5740–1980, and dealt with whether and how an employer is required to compensate the employee who is not actively working for him. Based on the aforementioned cases, the Court based its ruling on the tremendous importance placed by Jewish law on the effect of idleness on an employee.
An Individual's Obligation to Earn a Living from His Efforts
A positive approach to the value of work is found in the earliest sources, i.e., the Bible. The purpose of Adam in the Garden of Eden immediately after his creation is stated as "to work it and keep it [the Garden of Eden]" (Genesis 2:15). The Book of Proverbs expresses praise for the laborer: "He who works his land shall have plenty of bread …" (Proverbs 28:19), "Go to the ant, sluggard; consider her ways and be wise" (Proverbs 6:6). Talmudic literature, refers to labor of the six days of the week as a duty that complements the proscription of working on the Sabbath: "'Six days shall you work' – Rabbi says this is a complementary commandment (to the commandment regarding the prohibition of working on the Sabbath) for Israel; parallel to the positive commandment of the Sabbath, Israel was commanded regarding doing work" (Mekhilta d'Rabbi Simeon bar Yoḥai 20:9). In the continuation of this derashah, extolling the virtue of work, the Tosefta (Kid. 1:11; Kid. 29a) states that the father is obliged to teach his son a trade; Rabbi Judah adds that "he who does not teach his son a trade – in the end, will teach him to be a robber." Notwithstanding, Midrashim also present the approach that work is a default option, and the optimal situation is, "when Israel does the will of God … their work is done by others" (Mekhilta d' Rabbi Ishmael, V'Yikahel, 1; TB Ber. 35b). There are differences of opinion regarding the preferred balance between Torah study and work. Rabbi Ishmael sees the performance of work as an obligation, to preclude a person's dependence on others: "Do with them as is the custom among people." In contrast, Rabbi Simeon bar Yoḥai expresses his concern that engaging in labor would completely marginalize Torah study, and therefore recommends learning Torah and relying on the work being performed by others. The amora Abbaye testifies that those who adopted the path of Rabbi Ishmael "succeeded," and those who adopted the path of Rabbi Simeon bar Yoḥai – "did not succeed" (Ber. ibid.). Many other teachings of tannaim, cited in Avot de-Rabbi Nathan, speak in praise of performing work because it averts poverty, rescues from sin, rescues from boredom, and rescues a person from being suspected by others, etc.
Halakhic literature does not formally adopt the Talmudic opinions regarding the obligation to work and to teach one's son a trade, but there are clear statements in praise of work and disparaging reliance on the kindness of others. Maimonides writes as follows: "…they say 'make your Sabbath a weekday and do not become dependent on others.' And even if a learned and respected person becomes impoverished, he should go and work, even menial labor rather than depend on others. It is preferable to skin dead animals than to tell people: 'I am a very learned man, I am a kohen – support me!' … Among the greatest sages there were woodcutters, loggers, and those who pumped water for gardens, ironworkers and coal choppers who did not ask for support from the public" (Yad, Mattanot Aniyyim 10:18). Maimonides writes the following about the relation between Torah study and work: "Anyone who decides to study Torah and does not engage in labor and is supported by charity, commits a desecration of God's name, and causes dishonor for the Torah, extinguishes the light of religion, causes harm to himself, and precludes his life in the world to come … and they have further commanded and said: 'Love labor and hate the authorities,' and any Torah [study] that is not accompanied by labor is destined to come to naught and to bring about sin, and the end of such a man will be as a thief" (Yad, Talmud Torah 3:10). However, later posekim disagreed with these words of Maimonides. Rabbi Simeon ben Ẓemaḥ Duran (Resp. Tashbeẓ 1,147) states that only in the first generations, in the period of the tannaim and the amoraim, could sages both study Torah and earn their living from labor. In our days, "the generations are less worthy" and this cannot be done, and therefore learned men may rely on the community funds. The statements in praise of labor and in condemnation of laziness were cited by the National Labor Court (AB 9100002/98 Barnea v. The Employment Service; per Judge Rabinowitz), to support its ruling that "one who wishes to be supported from public funds, must first make a reasonable
effort to work and to support himself." Accordingly, the court upheld the decision of the Employment Service to deny unemployment compensation to any unemployed person who refuses positions offered to him.
LEGISLATION IN THE STATE OF ISRAEL
In addition to the laws mentioned above, a number of new laws that deal with labor law should be mentioned:
The Contract for Services Law, 5744–1974, codified the contractual obligations between one who orders work done and a contractor, including liability for defects and the right to withhold the property that is the object of the work until wage payment has been made.
The Minimum Wage Law, 5747–1987, codified the obligation to pay a specified minimum wage. This law also obligates monetary compensation when lower than the minimum wages were paid, and the criminal liability of the employer who pays less than the minimum wage.
The Prior Notice of Dismissal or Resignation Law, 5761–2001, establishes the obligation of giving prior notice of a prescribed term before terminating a person's employment (and correspondingly the worker's obligation to notify his employer a certain time in advance of his resignation). This law establishes the employer's duty to give an employee prior notice of his/her impending dismissal within a certain prescribed period of time, as well as the employee's duty to give his employer prior notice a certain period of time prior to resigning. The law also provides that an employer dismissing an employee without such prior notice is required to pay the employee an amount equivalent to his regular salary for the period of time prescribed, and that an employee who resigned without prior notice must pay his employer a penalty for the period during which the notice was not given.
Sources: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.