Shay Teken Moran Friedman July 17 2019 Legal aspects of organised labour Fischer (FBC & Co) | Employment & Immigration - Israel Shay Teken, Moran Friedman Employment & Immigration IntroductionRight to organiseProtection of right to organiseDefining collective bargaining unitsRepresentative workers' organisationsIntroductionCollective labour law in Israel is a dynamic and constantly evolving field. In the past decade, many important changes have taken place with respect to collective labour law which have greatly influenced the scope of organised labour.This article reviews the following guiding tenets and underlying principles of Israeli collective labour law:the legal aspects of organised labour, including the right to organise as a basic right, as set out in legislation and by Supreme Court and National Labour Court decisions;the protection of the right to organise and the support granted by the labour courts to organisers; andthe definition of collective bargaining units and workers' organisations.Right to organiseThe right to organise is one of the most important rights available to employees to improve their employment terms and job security. It gives employees the ability to work together to reduce the balance of power between themselves and their employers and to conduct negotiations that are as balanced as possible.The right to organise includes the right of an individual to join, or not to join, a workers' organisation and the right of employees and employers to establish workers' and employers' organisations, respectively.The right to organise is established by:international conventions, a significant number of which have been adopted in Israel;Supreme Court and National Labour Court decisions that recognised the right to organise as a basic right under Israeli labour law; andthe Collective Agreements Law (1957/5717) through declarative provisions and its practical implementation which establish rules and penalties for breaching them.Protection of right to organiseCollective Agreements LawThe Collective Agreements Law:allows employees to receive assistance from representatives of workers' organisations (who are not necessarily employees of the same employer) with respect to union activities;forbids employers from breaching the employment terms of employees due to their involvement in a workers' organisation or committee. Denying promotion or refusing to allow participation in training or professional development activities, as well as refusing any other benefits due to such collective activities, is also prohibited;provides that employers must comply with requests to negotiate made by newly inaugurated workers' organisations; andprovides that disrupting a workers' organisation carries a penalty (without the need to prove damages) of up to NIS200,000 for each breach in addition to criminal penalties that may be imposed on persons that breach the law.Protection of right to organise in case lawThe labour courts prohibit harm to employees resulting from their involvement in union activity and have ruled that employers are precluded from taking any action that could affect an employee's membership of or activity in a workers' committee or organisation.The labour courts have held that the burden of proof to determine whether an employee has not been harmed due to their organised labour activity rests with employers. The mere suspicion that harm caused to an employee was due to membership of a workers' organisation or activities regarding the right to organise is sufficient to shift the burden onto the employer to prove that such harm was the result of a legitimate business reason.In a precedent-setting ruling, the National Labour Court held that an employer has no right to intervene in matters relating to the initial organisation of employees. The court held that the right to organise as a workers' organisation concerns only employees. Employers cannot participate in employee discussions regarding whether to organise themselves or discussions between employees and workers' organisations regarding membership. Further, employers must distance themselves from involvement in the organisation of their employees at each initial stage and are not interested parties, even if they believe that they will suffer economic damage as a result of such organisation. The boundaries of an employer's freedom of expression regarding organised labour and its implications must be examined on a case-by-case basis.The court also established the following guidelines for examining the right to organise or breaches thereof:employers cannot pressure or coerce workers, including during individual or group meetings;employers cannot pressure employees to cancel their membership of a workers' organisation or declare that they are reluctant for employees to join a workers' organisation;employers cannot monitor employees regarding their involvement in labour organisations;duress, coercion or threats of dismissal are prohibited;during an initial organisation period, employers cannot dismiss members of a workers' committee, employees active in the organisation activities or organised employees;during an initial organisation period, employers cannot:lower the standard of working conditions of committee members or members of a newly inaugurated workers' organisation;discriminate against them on the basis of their activities relating to organised labour;remove them from their positions; ortake disciplinary action;employers cannot directly or indirectly express opinions regarding such organisations;employers cannot establish an "organisation on behalf of" or "committee on behalf of" employers (ie, an organisation or committee over which an employer has significant influence and which will seek to promote employer interests rather than act to advance the goals and interests of employees). The labour courts have held that this is an unacceptable way for employers to influence their employees and impede the right to organise. Case law imposes an increased burden of proof on employers to prove that such organisations are authentic and free from employer duress or intervention;employers cannot prevent the entry of a workers' organisation representative into their business premises;employers cannot conduct personal correspondence with employees by electronic means or otherwise regarding organisational matters; andemployers cannot modify (for better or worse) working conditions that were in place prior to the organisation process.Defining collective bargaining unitsThe main purpose of a workers' organisation is to create collective labour relations based on a collective agreement that regulates the relationship between an employer and a group of employees whether they are all employees of the enterprise or a portion thereof.It is important to define a collective bargaining unit, as it is the basis for defining the group of employees that will be subject to the collective agreement and with whom negotiations will be held.Collective bargaining units are defined in agreements between employer and workers' organisations.In cases where no such agreement is in place, the default is that a collective bargaining unit will relate to the entire business enterprise or company. When a group of employees requests to be defined as a separate collective bargaining unit, the courts will examine whether they have characteristics that distinguish them from the rest of the enterprise's employees.From an employee perspective, the following are likely to be relevant considerations in defining a collective bargaining unit:common interests and similarity of working environment and conditions;the type of occupation;the similarity of vocational training backgrounds;geographical proximity;working location; andwhether they are a part of a 'chain of representation' with a background of collective negotiations.From an employer perspective, organisational management parameters should be considered. Within this framework, the aim should be, insofar as possible, to match collective bargaining units to the organisational and managerial structure of employees. The criteria to be examined include:budget management;human resource management;logistics management;information systems;IT; andmarketing and sales.Where collective bargaining units have been analysed in the context of newly inaugurated workers' organisations, courts have ruled that these criteria should be:implemented in view of the specific characteristics of the newly inaugurated organisation; andrefined in scope and adjusted throughout the inauguration process.Representative workers' organisationsSection 3 of the Collective Agreements Law provides that a representative workers' organisation must be one where no less than one-third of employees in a workplace are members.Where disputes arise between workers' organisations as to which one represents employees, the organisation with the greatest number of members in the relevant workplace prevails.The 'prevention principle', developed by the labour courts, is an important principle which aims to maintain stability in the workplace. The prevention principle aims to provide representative workers' organisations with an immunity period during which a competing workers' organisation cannot claim to represent employees in a specific workplace. The labour courts have held that a workers' organisation is entitled to an immunity period at all stages of collective negotiations, provided that:negotiations continue for a reasonable period of time and are reasonably managed; andfrom the time a collective agreement is concluded, a one-year prevention period commences.The National Labour Court has established the following guidelines regarding competition between workers' organisations:In order to be considered a representative workers' organisation, such organisations must recruit at least one-third of employees in a workplace and more employees than any competing workers' organisation.Employers must not adopt a position in any competition between workers' organisations.The relevant time for determining which competing workers' organisation will be the representative organisation in a specific workplace is when a workers' organisation or competing workers' organisation has served notice, in writing, including the relevant registration forms, of its representation to the employer and the competing workers' organisation.During a 10-day period (known as a moratorium), each workers' organisation may examine the authenticity of membership in a competing workers' organisation. The race between competing workers' organisations must cease during this time.At the end of the moratorium, the representative workers' organisation must respond, in writing, to the competing organisation and present its declaration of representation.If an existing workers' organisation has served notice of its opposition to a declaration of representation, the competing organisation must file, within 10 days of the existing workers' organisation serving notice, a motion to the National Labour Court to hear the dispute between the parties.The existing representative workers' organisation may raise a 'prevention period' claim in such a situation (ie, during collective negotiations or the one-year period subsequent to the signing of a collective agreement).After the decision has been made with respect to representation in the workplace, a six-month moratorium applies to changing representation. Once the moratorium has expired and, subject to there being no prevention period in place, a competing workers' organisation may make a competing claim to represent workers.The National Labour Court has established the following guidelines with respect to the rights of employers to re-examine workers' organisation representation on their premises:Where a workplace has an established workers' organisation and a new workers' organisation is established and claims to represent workers, the latter will not be afforded a prevention period.The principles of good faith in labour relations and the prohibition on employers from interfering in freedom of association mean that in the ordinary course of business, an employer cannot question the representation of a newly inaugurated representative workers' organisation for a reasonable period of time and during collective negotiations.When it becomes apparent to an employer acting in good faith and not as a direct or indirect result of its actions against a workers' organisation that there are genuine grounds to suspect that the organisation does not represent its employees, the employer may question the organisation's representative status. Examples of significant events that allow an employer to question representation include:a significant change in the workforce that occurred in good faith and as part of a business process not stemming from the employer's attempts to influence the collective bargaining unit; andseverance of the relationship between an employer and a workers' organisation.A workers' organisation that ceases to be representative of workers has a duty of good faith to serve notice to such effect.With regard to annulment forms delivered after serving notice to an employer with respect to representation, when an employer claims that a workers' organisation has lost its right of representation and has not yet signed its first collective agreement, it must prove that:it acted in good faith;it upheld its obligation not to interfere with unionisation;the event that caused it to question the organisation's right of representation did not directly or indirectly result from action against said organisation; andthe cancellation of membership did not stem from employer pressure or influence.For further information on this topic please contact Shay Teken or Moran Friedman at Fischer Behar Chen Well Orion & Co by telephone (+972 3 694 4111) or email ([email protected] or [email protected]). The Fischer Behar Chen Well Orion & Co website can be accessed at www.fbclawyers.com.Endnotes(1) Based on the legal chapter in The Struggle for Unionization by Shuki Stauber.(2) 25476-09-12 The New Histadrut Workers Union – The Division of Workers' Unions – Pelephone Communications Ltd, 2 January 2013.