menu
Friday, March 29, 2024
histadrut
Created by rgb media Powered by Salamandra
© Davar- All rights reserved
News

Analysis / Judicial Reform Debate Puts Workers Between a Rock and a Hard Place

The Supreme Court has limited the rights of the workers in the past and may harm them even more in the future, but the reform also puts them in danger | The solution is a broad and agreed-upon compromise, which will ensure a balance that will protect the workers | Analysis

חברת החשמל. צילום: פלאש 90.
A worker in the Electric Company. (Photo: Flash90)
By Nadav Argov

Many of the leaders and supporters of the protest against the "judicial coup"  are asking loudly, in articles, posts, tweets and interviews: how come the labor unions do not see the reform as an existential threat and join the protest?

Their claim is not without logic. According to them, after weakening the courts, the government will also seek to reduce the power of the workers' unions, as well as the basic rights of the workers, a direct continuation of the dismantling of the power centers outside the government. Beyond that, without independent courts it will be easier for the government to harm workers, since the Supreme Court will no longer be able to interfere with Knesset legislation or government decisions that reduce workers' rights.

This argument is true in theory, but weak in reality. Admittedly, there is a significant chance that the government will try after the completion of the "reform" to harm the workers' unions and their rights. Almost every government has tried to do this. The “change government” also tried to harm workers' rights, through legislation, and in its threatening attitude towards the teachers and the teachers' union as part of the negotiations to improve their wage conditions, which were and remain among the lowest in the Western world. It is hard to believe that the current coalition, in which a significant number of members of the Knesset are clearly hostile to workers' rights, won't make such an attempt either.

The leader of the reforms, chairman of the Law and Justice Committee Simcha Rothman, has already published a bill to reduce the right to strike, but has not yet brought it up for discussion. According to the theory of the protestors, the workers currently have a protector in the Supreme Court which has the power to cancel legislation or government decisions that violate the rights of workers, but after the "regime coup," will no longer be able to help the working class.

So much for the theory. In reality, the Supreme Court has never been friendly to workers' rights, and especially to the rights of unionized workers. Not to mention that the Supreme Court itself is the one that ruled that workers are not allowed to strike in an organized manner against the government's political decisions.

From Bezeq to the Electric Company: the Supreme Court has reduced the right to strike in Israel

In the main ruling, given in 1995, the court ruled against the Bezeq company's workers' union that wanted to strike in protest of the privatization of the communications market. It was clear to the union that the privatization was expected to lead to layoffs of thousands of the company's employees, and therefore they requested a strike in order to protect them in the long term. The strike was approved by the Labor Court. The state petitioned the High Court, where it was determined that even if the government's decisions could affect the future status of the workers, a strike against those decisions is prohibited.

When a similar dispute over the privatization of the electricity sector led the employees of the Electric Company to strike in 2017, the Supreme Court threatened, in a panel headed by the current court president Esther Hayut, to issue a ruling that would further reduce the right to strike. Although the privatization of the electricity sector and the communications market are much less "political" matters than the "legal revolution" that is being proposed now, and affect the situation of the employees of the relevant government ministries in a very significant way, from the point of view of the court they are considered political matters on which the employees are not allowed to strike. 

Therefore, it is clear that if the Histadrut or any other workers' union wanted to strike to protect the workers from the damages they would expect if the reforms were to pass, the court would rule that the strike is illegal and unprotected. Thus, in a kind of special Israeli irony, the Supreme Court is the one that outlawed the strikes that the protest leaders would like to see the labor organizations undertake now to protect the court.

As the Supreme Court becomes more conservative, it may invalidate laws that protect workers

To the considerations of the working class in the face of the "legal revolution" it should be added that in recent years the court has become more and more conservative. Former Minister of the Interior and Justice Ayelet Shaked led for the past few years a strategy of appointing conservative judges, with the help of research institutes funded by foreign billionaires, and inspired by the strategy of the Republican takeover of the Supreme Court in the US. This effort bore fruit, and today one third of the Supreme Court judges are considered conservative. She explained that the current government will also appoint mostly conservative judges, even if it fails to pass the reforms, then Israel is moving quickly towards a court with a conservative majority.

The conservative composition of the Supreme Court will not protect workers' rights – on the contrary. The American experience shows that a court with a clear conservative majority tends to interfere in legislation and government decisions – what is called “judicial activism” – no less than a liberal court. Conservative courts in the US have already ruled in the past that minimum wage laws and other laws protecting workers' rights are unconstitutional, since they violate the "freedom of occupation,” when they mean the imagined freedom of the employee to choose to work for less than minimum wage, and the employer's “right to property,” where the law obliges them to pay the worker more than they are interested in paying. The right to property and freedom of occupation are also anchored in Israel's basic laws.

In a scenario in which the reforms collapse, the court would retain its right to overturn laws, and would begin, under the auspices of most of its conservative judges, to overturn laws that protect the basic rights of workers, such as the Minimum Wage Law, the Women's Labor Law, the Youth Labor Law, and quite a few other laws. This is a completely realistic scenario and, as mentioned, already happened in the US. Quite ironically, in the US, this process of using the Supreme Court to harm the rights of the working class stopped only after Democratic President Roosevelt threatened the court with far-reaching reform.

The workers are represented in the Knesset, and are excluded from the Supreme Court

Organized labor has a certain representation in the Knesset and the government. For example, the members of the Knesset who were heads of or active in workers' unions or simply known to support working people. On top of that, the working class makes up the majority of Knesset voters, a fact that makes at least some Knesset members think twice before voting in favor of a law that harms workers. On the other hand, the workers have zero representation in the Supreme Court. By its very nature, the court is an elitist institution – requiring a legal education, experience in the field and a combination of skills or connections. The Supreme Court is the most elitist of them all. Estimated judges from the district court, renowned professors from the academy and lawyers of large firms in the private market are appointed to it.

There is no chance, whether there will be reforms or not, that a lawyer from a workers' union will be appointed to the Supreme Court. Unfortunately, even the possibility that one of the judges of the National Labor Court will be promoted to the Supreme Court seems imaginary (and it's a pity, there are competent and good judges in the Labor Court no less than those in the Magistrate and District Courts). In short, when the working class has many members in the Knesset and zero representation in the court, labor unions prefer to conduct their struggles within the framework of politics and not in the Supreme Court.

To summarize so far, the current situation in which the court has great independence, extensive power and authority to intervene in the legislation of the Knesset and the government's decisions, and very little identification with the working class – are weighty considerations for the workers not to oppose the "legal revolution" that will reduce the power of the court in favor of the other political branches where workers have more representation.

The commission for the appointment of judges may be what pushes the workers to join protest

But this is certainly not the full picture. The legislative proposals of the "legal coup" also include parts that are less favorable to the working class. The main one is the proposal to change the composition of the committee for the selection of judges. Today the committee consists of a majority of legal professionals (3 judges and 2 lawyers, against 4 politicians: two ministers, and two Knesset members, one from the coalition and one from the opposition). Appointments to the Supreme Court require a majority of 7 out of 9 members of the committee, therefore each appointment to the Supreme Court requires at least one vote of a judge or coalition member. 

Since both the three judges and the three members of the coalition vote as one bloc, each of these blocs has a right of veto on appointments to the Supreme Court. In practice, the appointments will be the result of bargaining and compromise between the judges of the Supreme Court and the government – and with a certain influence of the lawyers and the representative of the opposition.

According to the proposal of Justice Minister Yariv Levin, the reform will change the composition of the committee so that it will consist of 11 representatives, seven of whom are coalition representatives, three of whom are judges and one of whom is a representative of the opposition. Any majority of representatives will be able to choose a Supreme Court judge and therefore the coalition will be the only one with the power to appoint these judges, without any consideration of the opinion of the judges or the opposition.

This change is expected to accelerate the process of the court becoming very conservative, and as such even more hostile to workers' rights (but also weak and lacking the authority to overturn legislation). It is also expected to degrade the level of judging since different coalitions will appoint the judges according to their political identification and not according to their legal abilities.

Due to the fact that the government is the largest employer in the economy (and also largely determines the working conditions in the rest of the economy), organized labor is always in some kind of conflict with the government, any government. The thought that a court whose judges are politically identified will serve as another tool of a government that is likely to suppress workers' rights or workers' struggles should also frighten the working class.

 For example, a situation could have arisen in which the teachers who were on strike this summer would have known that the court would ban their strike not because it is illegal, but because it was not politically identified with the government. Without the threat of a strike, the teachers would have been forced to accept any offer from the government. Those who followed that struggle remember very well the insulting proposal of the Director General of the Ministry of Finance at the time, that the teachers continue to work at the same salary they received ten years before when the prices in the economy were much lower.

And on top of that, the workers are also human. Half of them are women, and some are Arabs, Druze or Jews according to the Law of Return and not according to halacha, and some are LGBTQIA+. All those who belong to these communities, who make up the majority of workers in Israel, have something to fear from the reform, since its leaders have already openly expressed their intention to harm their rights.

The solution: compromise by broad agreement

This is how the workers find themselves between a rock and a hard place. The continuation of the existing situation is dangerous for them, but the reform is also dangerous. The solution that the workers, who are the majority of adult citizens in Israel, need is a compromise with broad consensus. A compromise that, on the one hand, would make it difficult for a conservative court that would seek to promote damage to the status of workers in the name of neoliberal conservatism, and on the other hand, would preserve the authority of the court to cancel in extreme cases laws that violate basic human rights, without the Knesset being able to overcome this in the majority of cases. A compromise that will ensure that the fight for the rights of the workers will be conducted mainly in front of politicians, whom the workers can vote for, and less in front of judges, the representatives of the elites. 

And most important of all: a broad compromise armed with a large majority of Knesset members will be able to guarantee permanent rules of the game, and governmental stability for at least two decades to come – two conditions that are the basis for the existence of any society with a working class that enjoys basic rights and earns a decent living.

This article was translated from Hebrew by Matt Levy.

Acceptance constitutes acceptance of the Website Terms of Use