LEL Flash | Issue: May 2014

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Issue: May 2014

Comments from the Chair

Photo of Joel D'Alba

Midwinter Meeting Road Trip Ends in Israel

The Section Chair's visits to a number of the 2014 Midwinter Meetings of the Section's standing committees ended in early May at the Midyear Meeting of the International Labor and Employment Law Committee in Tel Aviv, Israel, where the hotel served a cake to celebrate the Section. This is the third Midwinter Meeting to have featured a cake, depicted in the margin, which was prepared by the hotel to celebrate and thank the Section for planning such a successful trip to Israel.

This was truly a fabulous meeting and experience that combined learning about the culture of this very diverse country, its labor relations and its Labor Court. A number of multi-national companies have well-established operations in Israel. For instance, Tzach Shanny, a panel member on the multi-national business operations in Israel program and Hewlett Packard's Country Counsel in Israel, stated that HP has 7,000 employees in Israel working at seven sites and that the research and development software division in Israel is the largest in the company. Israel's tech sector is highly regarded, and the country has the highest number of scientists, engineers and technicians per 10,000 employees of any other country. This was a very important meeting for our members to learn about labor and employment law issues in a country in which many foreign countries are doing business.

The meeting was held at the David InterContinental Hotel, located very close to the extensive and beautiful beach that borders the city of Tel Aviv on the Mediterranean Sea. A view of it from Old Jaffa is shown in the margin.

Our introduction to the cultures and traditions of the country started on Sunday, May 4, Israel's Memorial Day, known in Hebrew as Yom Hazikaron. It was followed by the celebration of Israel's independence, known in Hebrew as Yom Ha'atzmaut. Israel joins these days together to convey a simple message: Israelis owe their independence and the very existence of the Jewish state to the soldiers who sacrificed their lives for it. Israeli's Memorial Day is different in character and mood from the U.S. Memorial Day, because for 24 hours from sunset to sunset, all places of public entertainment (theaters, cinemas, night clubs, pubs, etc.) are closed. The most notable feature of the day is the sound of a siren that is heard throughout the country twice. During the wailing of the siren, there is a standstill of all traffic and daily activities. The first siren marks the beginning of Memorial Day at 8:00 p.m., and a bus load of Section members attended the 2014 Memorial Service in Rabin Square in Tel Aviv. With the assistance of our excellent Section Director, Brad Hoffman, we were driven by bus to the Square, led to reserved seats in a crowd of 30,000, and handed listening devices for the simultaneous translation of the speeches broadcast from the Western Wall, a major Jewish religious site in Jerusalem. In the margin is a photograph of President Shimon Peres, who gave a very eloquent memorial statement for all military personnel who were killed while on active duty in Israel's armed forces. The next day at approximately 10:55 a.m., the Committee suspended the program so that we could go to the street level of the hotel and observe the second memorial siren that commenced at 11:00 a.m. It was very moving to see cars, trucks and people stop and stand for two minutes of silence. When the sirens stopped, we returned to the meeting that had been in progress, a discussion on cutting edge issues in international discrimination laws.

On the next day, we observed the anniversary of the day Israel declared its independence, which occurred on May 14, 1948, in Tel Aviv. This also is a day on which most retail businesses are closed, with the exception of a few restaurants. Our group was transferred by bus to Old Jerusalem and then on to visit Bethlehem. The tour of Jerusalem began on the Mount of Olives overlooking Kidron Valley and the walls of the Old City. Some in the group walked down into the valley to reach the Garden of Gethsemane, and some Section members and their guests prayed in the church that is adjacent to the Garden. From the Garden of Gethsemane we drove to the Old City and visited the major religious sites of Jews, the Western Wall of the Second Temple, the Church of the Holy Sepulchre, built on the spot where Christians believe Jesus was crucified, buried and resurrected, and the Dome of the Rock, which is an impressive and beautiful edifice that can be seen from all over Jerusalem. Although it is not a mosque, it is a Muslim Shrine, and was built over a sacred stone believed to be the place in which the Prophet Muhammad ascended into Heaven. It is the world's oldest Islamic monument. The Western Wall or Wailing Wall is the remnant of the ancient wall that surrounded the Jewish Temple Courtyard and is arguably the most sacred site recognized by the Jewish faith outside of the Temple Mount itself. It dates from the Second Temple and is believed to have been constructed around 19 B.C. by Herod the Great. The pictures in the margin depict these very important religious sites.

On the substantive level, the subjects were quite contemporary and interesting and covered labor and employment law issues in many European countries as well as Mexico, Jordan, Israel, Canada and the United States. The subjects included: practicing labor and employment law in Israel; the challenges of representing multi-national businesses in Israel; guest workers and immigration policies; the extra-territorial application of labor and employment law to human rights violations within a company's foreign based supply chain; core ILO labor standards; Israel as a center for technological developments and start-up companies; organizing workers in these sectors; the changing technology in the workplace; enforcing trade agreements in Jordan, Mexico, Egypt and Israel; and corporate codes of social responsibility in response to the workplace disaster in Bangladesh approximately a year ago. This report will focus on some of the highlights of the panel discussions.

Labor and Employment Law in Israel and the Israeli Labor Court

Meeting attendees were pleased to hear The Honorable Steve Adler, who served as the President of the National Labor Court for thirteen years prior to his retirement in November 2010. He was educated in the United States and worked for three years at the National Labor Relations Board before emigrating to Israel. In Israel he practiced law for five years and was appointed in 1975 to be a judge on the Regional Labor Court. Judge Adler is a recognized scholar, teaches at the Hebrew University Faculty of Law, and has taught at Cornell University School of Industrial and Labor Relations, Oxford University and Cardozo Law School. The Israeli Labor Court system has five trial courts, and final appeals are submitted to the National Labor Court. There are over seventy judges and registrars who work in this unique court system. It has very broad jurisdiction to cover almost every dispute relating to workplace and social problems, including individual disputes, collective disputes, social welfare (National Insurance and Medicare), equality at the workplace, tensions, workplace safety, covenants not to compete, freedom of occupation and protection of foreign workers. It is a regular court with full powers, and the judges are the same as judges of the regular court system.

This court is very different from the American model in that it consists of professional judges and lay members, who are not lawyers, but who are workers and employer representatives. There are generally no appeals to the Israeli Supreme Court for labor court decisions, except in special circumstances. Judge Adler stated that the lay members of the court serve as judges and provide insight and understanding of the workplace realities. The facts of a case can connect court judgments to realistic situations, and this process gives parties confidence that the court understands their issues in the matters before them. Lay members serve only on the Labor Court and not on any other courts of general jurisdiction in Israel. These lay members are appointed by the Ministers of Justice and Labor and come from the labor and management sectors. They have loyalty only to the law and not to their respective sectors. All European labor courts have lay members, except for Spain and Italy. The goal and justification for the Labor Court is to provide access and efficiency to justice, expertise on labor relations matters and development of labor law in a manner that labor and management can live with. The Labor Court is responsible for making Israel labor law, including collective labor law.

The alternative dispute resolution procedures used in Israel have been copied from procedures developed in the United States. The Israeli Chief Justice requested U.S. judges from the United States to help prepare for the ADR formats. The ADR system in Israel consists of mediation and arbitration and attempts to resolve cases. Some courts have free mediation services of small to medium size cases and other cases are referred to private mediation or arbitration.

Professor Guy Mundlak of the Faculty of Law at Tel Aviv University was very excited, as were other Israeli speakers, to be able to meet labor and employment lawyers from the international community that consisted of the United States, Canada, Mexico, Israel, Jordan and eight European Union countries. He spoke about the transformation of the Israel industrialization system and the sharp reduction in union density recently seen in the Israeli labor market. Between 1948 and 1987, the Israeli industrial relations system was highly centralized and was characterized by high levels of membership in trade unions and employers' associations. There was broad coverage for collective bargaining agreements. During that period, union density was 80 percent of the labor market. Under this system, the state delegated the provision of health care and pension to trade unions, thereby encouraging individuals to join them. This corporatist system gradually eroded during the mid-1980s, but its major transformation came with the removal of the Ghent system in 1995, when the Israeli legislature, the Knesset, disassociated health care provisions from labor unions. As a result of this reform, the major Israeli union, the General Histadrut, lost its central financial pillar. It took several years for the institutional implications of this change to be recognized, and they included a gradual and incremental process of decentralization of bargaining, de-concentration of interests' representation and the marginalization of bi-tripartite institutions.

These changes fundamentally affected the meaning of trade union membership. Data of trade union membership and coverage are not readily available, but Professor Mundlak estimates that membership rates have declined to 25 percent and that Histadrut has had the largest fall by losing approximately two-thirds of its members. The small unions are growing, and Itai Svirski, an Israeli lawyer who represents a new union that is a rival to Histadrut, known as Power to Workers, noted that it has been organizing workers and building organizations from the bottom up and relying upon company growth in a number of industries. He claimed that Power to Workers represents six percent of the work force and is organizing workers by having them take a role in the organizing campaigns.

Professor Mundlak noted that the data shows a reduction in union membership but not a corresponding reduction in coverage under collective agreements. He believes that approximately 50 percent of the labor force is covered by sector collective bargaining agreements and that his findings show a wide gap has opened between membership and coverage. These findings appear in an article that was distributed in the conference papers: Mundlak, Saporta, Haberfeld and Cohen, Union Density in Israel 1995-2010: The Hybridization of Industrial Relations, Industrial Relations, Vol. 52, No.1 (January 2013).

These developments are occurring as Israeli labor law and more generally social law has changed dramatically. There is a decentralization of industrial relations policies combined with a rise in markets and regulation and an increased role of the Labor Court in dealing with industrial actions and the interaction between unions and employers. As indicated by both Professor Mundlak and Israeli labor lawyer Orna Lin, the Labor Court is creating rules to deal with the unionization of workers, the right to organize, conducting meetings with employees and access to the workplace. According to Professor Mundlak, the Labor Court is looking to American law to help establish these principles. He noted the unions are no longer able to simply obtain members through the incentive of joining health care, and they are organizing workers based upon workplace wage and working conditions. This clearly makes for rather exciting opportunities for both employers and unions in a rapidly changing world of industrial relations in Israel. Orna Lin stated she is, "Happy to meet this change each day on behalf of the unions she represents." She also noted that, "Unions have had many failures in their organizing attempts because employers have been very aggressive and have borrowed techniques from American companies in thwarting attempts for unionization." In its evolution of Israeli labor law, the Labor Court has adopted the International Labor Organization conventions that establish the right to organize and have created a sort of constitutional right for workers to join unions, even though Israel does not have a formal constitution.

Equality Legislation: Israel

Tziona Koenig-Yair, the national commissioner of a new government organization in Israel, the Equal Employment Opportunities Commission, and a U.S.-educated lawyer, spoke about equality legislation in Israel and the challenges the government has in dealing with discrimination questions. Of the 8.1 million people in the country, 75 percent are Jewish. The EEOC has authority over a population in which 86 percent of the people over the age of 45 believe that they are victims of discrimination according to a recent EEO survey. Eighty percent of the LGBT community believes that it has been discriminated against.

Israel, according to Koenig-Yair's analysis, has the most advanced discrimination laws in the world in that they include, beyond the traditional protected categories, discrimination protection for soldiers on reserve duty, fertility issues, political opinions and political parties. Equal opportunity laws protect discharged soldiers, hours of work and rest, pregnant women, parents, protection against job seekers, protection against discrimination for fertility treatments, IVF, sexual orientation, gender, personal status, pregnancy, age, race, religion and nationality. Discrimination also is prohibited in acceptance to work, work conditions, promotion and termination of work relations. The Equal Opportunity Workforce Law of 1988 applies to every employer with more than five workers. A civil service law of 1959 sets a mandatory obligation for equal representation in the civil service to women, Arabs, Ethiopians and persons with disabilities. A government company's law creates a mandatory obligation for equal representation in the government companies to Ethiopians and members of the Druze community.

She indicated that with the relatively new EEO laws one of the key problems for the EEOC is to make people aware of this agency and have them become familiar with the enforcement issues and how the law works. The same issue was confronted in the early years of the U.S. Equal Employment Opportunity Commission, which conducted campaigns to orient people to the new law. Israel also is using public awareness campaigns, annual conferences and the Internet to explain the advantages of diversity and inclusion. The strategic objective of the Israeli EEOC is to deepen the enforcement of the equality law, encourage employers to comply and encourage more Arab women and orthodox men to be involved in the workforce. As an example of a recent case decided by the Labor Court, she noted there had been a tradition in Israel for having railway watchmen at each crossing and to require that only those persons with military service be placed in those positions. The Labor Court ultimately held that the employer could not prove that military service was a job related function to monitoring the railway crossing. The report on these fascinating topics of Israeli labor and employment law will continue in a future issue of The FLASH.

The ABA National Symposium on Technology in Labor and Employment Law, sponsored by the Technology in the Practice and Workplace Committee, was conducted in New York last month. I will include highlights of that meeting in the next issue of the FLASH.

Joel D'Alba
Chair, ABA Section of Labor and Employment Law


Opening Page

Special Feature

Photos from International Labor & Employment Law Committee Midyear Meeting

Cutting cake

Committee Co-Chairs Danny Kaufer, Wendi Lazar and Maryann Parker unveil celebratory cake at the meeting.

David InterContinental Hotel

David InterContinental Hotel.

Rabin Square Memorial Event

Meeting attendees were invited to witness Memorial Day observances in Rabin Square.

Dome of the Rock

Dome of the Rock.

Western Wall

The Western Wall. (One more to come.)

Honorable Steve Adler

The Honorable Steve Adler.

Guy Mundlak

Guy Mundlak.

Judy Scott

Judy Scott, General Counsel SEIU.

Flash Co-Chairs:
Jeremy J Glenn, Meckler Bulger et al | Monique R. Gougisha, Ogletree Deakins | Amy F. Shulman, Broach & Stulberg LLP | Jennifer R. Spector, National Labor Relations Board

American Bar Association Section of Labor and Employment Law
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