The labor courts also have contributed to the unusual severity of Israel’s strike problem by neutralizing what few weapons the existing law puts in the government’s handsׁin the process severely upsetting the balance of power between labor and government. For instance, a series of labor court rulings have declared that the government may deduct only 30 percent of a worker’s pay as long as he shows up at the office during a “partial strike,” even if his job consists entirely of functions barred by the sanctions, such as dealing with the public.⁵⁰ Not surprisingly, this is a common tactic in public-sector strikes, since in many government offices, dealing with the public is most employees’ full-time job. Thus, by declaring a partial strike, in which workers deny service to the public but continue to perform administrative duties, labor unions can produce almost the same effect as a full strike while risking only 30 percent of workers’ pay.

Similarly, the labor courts gutted the 1945 Emergency Defense Regulations, which entitle the government to issue back-to-work orders to striking workers in essential public services in order to keep the economy functioning. The caveat is that in practice,such orders require the consent of the labor courts, which generally view their role as strengthening the right to strike. “Limitations on the right to strike make it difficult for unions to maintain their existing organizations, to fulfill their function, and to persuade unorganized workers to organize,” explained Adler in a 1997 essay. “The court takes into account the need to strengthen workers’ right to organize and recently has even acted to strengthen the right to strike and to reduce the restrictions imposed on [this right]…. The court has adopted a minimalist policy with regard to issuing restraining orders against strikes.” ⁵¹Such a policy means that strikes are almost always an effective method of accomplishing what the unions want: If the government cannot ensure the continued functioning of essential services, it has little choice but to capitulate quickly in order to keep the country from being brought to its knees.

Employers’ organizations, led by the Federation of Israeli Chambers of Commerce, have argued recently that the only solution is to abolish the labor courts altogether and transfer their functions to the regular courts.⁵² Such a move would certainly make sense administratively, since maintaining two separate court systems is hardly cost-effective. But it would also probably reduce the pro-labor bias in the judicial system, both by broadening the spectrum of opinion involved in the decision-making process (there are many more regular judges than labor court judges)⁵³ and by eliminating the tendencyׁcommon to all niche institutionsׁto justify the system’s existence by taking an activist role.⁵⁴ Unfortunately, the government rejected a Finance Ministry proposal to include such a reform in the 2004 budget, and a “softer” version now being proposed by Justice Minister Yosef Lapid is unlikely to have much effect.⁵⁵ 

 

By far the most pernicious reason for the ongoing strikes, however, has been a consistent lack of governmental will in dealing with them. One example is the practice of “forgiving” most strike days in the public sector, rather than docking workers’ pay—a practice that makes strikes nearly cost-free to the workers and unions that precipitate them.⁵⁶ Government weakness is most apparent, however, in the generous settlements that have ended most strikes. Indeed, between 1977 and 2001, strikes resulted in full acceptance of 36 percent of workers’ demands, partial acceptance of another 40 percent, and rejection of only 24 percent. By contrast, during those same years, disputes that were submitted to arbitration resulted in full acceptance of 24 percent of workers’ demands and partial acceptance of another 28 percent, while fully 48 percent were rejected.⁵⁷

The settlements that resolved the strikes in the autumn of 2001 provide excellent examples of this generosity. In addition to the 10-percent raise and $9,000 bonus received by port workers, airport workers obtained an 8-percent raise over a three-year periodׁboth of these following a 3.6-percent raise just ten months earlier. For the airport workers, whose average salary that year was $3,100 a month, this translated into an average raise of $250 a month by the end of the three years, the equivalent of about two days’ pay. In other words, a two-day strike (even in the unlikely event that the government were to deduct wages fully) would pay for itself within a month. For the port workers, whose average salary was about $4,300 a month, the bonus alone was enough to pay for a strike of more than two months’ duration. With gains of this size in the offing, strikes naturally become an appealing negotiating tactic.

The incentives created by the government’s generous settlements are compounded by its reluctance to take any actions that might mitigate the damage that strikes cause. The government rarely even tries to issue back-to-work orders for essential personnel, although this reluctance is no doubt encouraged by the courts’ tendency not to approve them. Nor has it ever tried to bring in temporary help to ease the problems caused by labor sanctions, as other countries sometimes do.⁵⁸ This is a critical factor, because the economic devastation brought about by strikes is the very reason unions find them so tempting. So long as the Histadrut can bring the economy to a virtual standstill, the government almost always will feel compelled to capitulate quickly. The balance of power would be altogether different, however, if, through a combination of back-to-work orders and the use of temporary help, the government could reduce the damage enough to hold out for longer. Though almost all workers would be willing to sacrifice a few days’ pay for long-term gains, many cannot afford to lose several weeks’ salary all at once. And a lengthy strike reduces the likelihood that even a generous settlement will cover the losses.

Thus, the longer the government allows a strike to continue, the less attractive it is for workersׁassuming, of course, that the government takes the necessary measures to make it unattractive: Refusing to compensate workers for days they did not work; ensuring that the final settlement is not so generous as to make the strike worthwhile; and mitigating the damage to the economy through back-to-work orders or the use of temporary replacements. Ultimately, this is all a matter of political will, requiring both strong leadership and a concerted effort to explain the necessity of the government’s actions to the public. It was precisely such demonstrations of political will in the 1980sׁby Ronald Reagan against the air traffic controllers and Margaret Thatcher against the coal minersׁthat enabled the United States and Great Britain to bring the problem of rampant strikes in their countries under control.

 

In light of the dramatic reduction in strikes throughout the rest of the industrialized world, Israel can no longer afford to maintain a system that provides public-sector workers with a nearly overwhelming incentive to strike. Fortunately, there are some indications that the time may be ripe for change. The present government, including both a finance minister dedicated to economic reform and two coalition partners that largely support his effortsׁShinui and the National Unionׁreflects a political constellation far better prepared for a contest of wills with the Histadrut than at any time in recent history. And indeed, in dealing with the past year’s strikes, the government has shown occasional flashes of resolve. For example, it insisted on docking 30 percent of workers’ paychecks during the civil-service strike of fall 2003, though this cut was hardly commensurate with the damage caused by the three-month closure of government offices to the public.⁵⁹ The government also made efforts to circumvent a ports strike last fall, by requesting permission from Egypt and Jordan to ship Israeli merchandise through their ports and promising to subsidize the costs of trucking goods to and from them,⁶⁰ and by signing a deal with a private shipyard in Haifa Bay, under which the shipyard would upgrade its facilities in preparation for handling international freight should the strike continue.⁶¹ These measures, and others like them, may suggest a change for the better in the government’s approach to the problem of strikes. Nevertheless, as the outcome of last fall’s civil service strike clearly shows, much more is needed.⁶²

It is also encouraging that the government has finally begun to explore legislative measures. A Finance Ministry position paper published in November 2003 proposed a number of legislative changes, including a prohibition on strikes not directed at the strikers’ employer (in effect, a ban on “sympathy strikes”); a prohibition on strikes against the government when it acts in its capacity as policy-maker, as opposed to in its role as employer; lengthening the minimum period of time between the declaration of a labor dispute and the onset of a strike from 15 to 60 days; and requiring public-sector strikes to be approved by a majority of a union’s members in a secret ballot.⁶³ Only time will tell whether anything comes of these initiatives. It is clear, however, that the result would be a much-needed improvement in the labor situation in Israel.

The public, too, appears to be growing impatient. A poll commissioned by the daily Ha’aretz in May 2003, in the midst of a major strike, yielded surprising results. By a large margin, the public agreed with the Histadrut that the government’s economic programׁthe official pretext for the strikeׁought to be scrapped: Some 52 percent of respondents opposed the program, while only 26 percent supported it. Nevertheless, 53 percent of respondents opposed the strike, while only 32 percent supported it.⁶⁴ In other words, many Israelis were unwilling to support the strike even though they supported the cause for which the workers were striking. One can only imagine the kind of public frustration that accompanies the majority of public-sector strikes, which are carried out in the name of causes in which most Israelis have little interest.

This conclusion emerges even more strongly from a survey conducted by the Ministry of Labor and Social Affairs in January 2002. That survey, which attempted to determine whether people would support curbs on strikes, found that fully 84 percent of the public favored instituting mandatory, binding arbitration for public-sector labor disputes, a procedure that necessarily entails a comprehensive ban on such strikes.⁶⁵

The present government has correctly understood that Israel’s recession provides a unique opportunity for effecting major reforms. But unless it takes advantage of this moment to end the plague of strikes afflicting Israel, there is a good chance that these reforms will either be thwarted by strikes from the outset, or be rolled back by a new wave of labor unrest the minute the economy picks up again.⁶⁶ This does not mean that workers should be denied the right to unionize, to bargain collectively over the terms of their employment, or to strike when doing so is warranted. Rather, it means returning the right to strike to its proper dimensions. For in an increasingly competitive global economy, Israel’s prosperity, including that of its workers, depends on an economy that functions smoothly, without constant, jarring interruptions. Creating such an environment will require a sustained and focused effort. But the benefits to Israel’s economy, and to the enterprise of building a strong and attractive Jewish state, will endure for generations.

Evelyn Gordon is a Contributing Editor of Azure, and an Associate Fellow at the Shalem Center.

 

 

1. Business Data Israel (BDI) report, ׂIsrael Is Breaking Records for the Number of Strike Days,” May 22, 2003. [Hebrew]

2. According to data from the Central Bureau of Statistics, exports accounted for about 35 percent of gross domestic product in 2002. Data taken from the Central Bureau of Statistics website: www.cbs.gov.il. 

3. Data taken from the websites of the Israeli Ministry of Labor and Social Affairs (www.molsa.gov.il/ZhuitOvdim/laborRel/) and the U.S. Department of Labor (http://data.bls.gov/cgi-bin/surveymost).

4. Data on Israel taken from the Central Bureau of Statistics, Statistical Abstract of Israel (Jerusalem: Central Bureau of Statistics) for relevant years. Data on other countries taken from the International Labor Organization, Yearbook of Labor Statistics (Geneva: ILO) for relevant years. The CBS figures are also reported in the ILO yearbook.

5. BDI report,“Israel Is Breaking Records.”

6. Evelyn Gordon, “Stream of Strikes,” The Jerusalem Post, March 16, 1999.

7. Evelyn Gordon, “A Plague on Strikes,” The Jerusalem Post, November 27, 2001. In Israel, dockworkers, airport workers, and university staff are all considered public-sector employees. The docks and the airport are state-owned; the universities are independent, but almost entirely state-funded.

8. See the Ministry of Labor website: www.molsa.gov.il. Interestingly, this was not always the case: In 1972 and 1973, for instance, the public sector accounted for only 45 percent and 50 percent, respectively, of total workdays lost to strikes. Over the last 30 years, however, this sector has steadily increased its share of the total. See Karen Finkelstein, ׂA Solution to Strikes in the Public SectorׁEffective Use of the Institute for Agreed Arbitration” (Jerusalem: Institute for Advanced Strategic and Political Studies, 2003), p. 7. [Hebrew]

9. Arie Shirom, Introduction to Labor Relations in Israel (Tel Aviv: Am Oved, 1983), p. 238. [Hebrew] The actual figures are: Italy, 1,655 strike days per 1,000 workers; Canada, 1,644; United States, 1,350; Australia, 913; Britain, 743; Denmark, 511; Belgium, 334; France, 274; Israel, 252.

10. Essential services are defined as electricity, gas and water supply, transportation, storage and communications, public administration and defense, education, health, and community services. In Israel, with a few exceptions, these are all public-sector industries. (There are, for instance, a few private hospitals, but most are owned by either the government or the Histadrut. Similarly, the two major bus cooperatives are part public, part private: Employees are public-sector workers, and usually join public-sector strikes, but cooperative members own their own buses, and therefore generally refrain from striking.) Israel’s public sector also includes some elements that are not defined as essential services, such as two of the three largest banks and a few major state-owned industrial concerns. Overall, however, there is a very broad overlap between Israel’s public sector and its essential services. 

11. Data taken from the International Labor Organization, Yearbook of Labor Statistics, 2002, quoted in Finkelstein, ׂA Solution to Strikes,” p. 28.

12. Ruth Sinai, “Limiting the Right Is Reasonable, But Abolishing It Is a Step Against Democracy,” Ha’aretz,May 16, 2003.

13. Finkelstein,“A Solution to Strikes,” p. 26.

14. Evelyn Gordon,“A Draining Strike,” The Jerusalem Post, August 10, 1999.

15. Zafrir Rinat,“Experts: Water Stoppages in Large Cities Could Endanger Quality of Drinking Water,” Ha’aretz, August 4, 1999.

16. Haim Bior, “Industrialists: Strike Damage Is an Estimated NIS 4 Billion,” Ha’aretz, May 18, 2003.

17. This was the Manufacturers’ Association’s estimate. The Finance Ministry put the figure at $220 million a day, while B.D.I.’s estimate, based on its total of $1.3 billion for the entire strike, was about $100 million a day. Both Finance Ministry and Manufacturers’ Association figures taken from ׂThe Growing Cost of the Strike,” Ha’aretz, May 2, 2003.

18. Finkelstein, “A Solution to Strikes,” p. 27.

19. Data taken from the Central Bureau of Statistics website.

20. There is no generally accepted method of calculating strike damage; the calculation depends on a host of variables, such as which industry is striking and how long each strike lasts (a lengthy strike, for example, is much more damaging than a series of one-day strikes scattered throughout the year). The simplest method of obtaining a rough estimate of the direct damageׁwhich is universally agreed to be an underestimateׁis to multiply GDP per worker per day times the number of strike days. In 1988, Adrian Zeiderman and Shoshana Neumann tried to determine how much of an underestimate this was by using a more complex formula for determining the damage for selected years in the 1970s, and concluded that the real damage was anywhere from 25 to 75 percent higher than the estimate produced by the simplistic method. Adrian Zeiderman and Shoshana Neumann, ׂThe Economic Cost of Strikes in Israel: An Input-Output Approach,” in Pinhas Susman and Yoel Natan, eds., Studies in Economics (Jerusalem: Israel Economics Association, 1988), pp. 53-67. [Hebrew] To produce my estimate for 1997-2001, I used the simplistic method and then multiplied the results by 1.75,the higher end of the range that Zeiderman and Neumann gave. In fact, however, this is almost certainly still an underestimate, since Zeiderman and Neumann noted that the extent of the underestimate depends largely on which industries are strikingׁa ports strike, for instance, causes much more ambient damage than a strike at a swimwear factoryׁand public-sector strikes are at the top of the ladder in terms of causing damage. Roni Bar-Tzuri, ׂStrikes in Israel, 1983-1992,” Economics and Labor 9 (October 1994), p. 136. [Hebrew] Since public-sector strikes accounted for 45 to 80 percent of total strikes during the years of Zeiderman’s and Neumann’s calculations (Finkelstein, ׂA Solution to Strikes,” p. 7), compared to 96 percent during 1997-2001, it is reasonable to assume that the correct multiplier should have been even higher.

21. The additional tax went into effect on November 19, 2001, and was canceled at Haifa Port on December 22, 2001, and at Ashdod Port on January 1, 2002. Information can be found at emta’s website: www.container­conferences.org/emta/press/011220ni.htm.

22. Information provided to the author by the Manufacturers’ Association, which collected data from companies on damages caused by the strike in preparation for filing a suit against the Histadrut.

23. Focus on Industry (the Manufacturers’ Association’s online journal), June 11, 2003, www.industry.org.il/Magazine/Item.asp?ArticleID=298&CategoryID=
3681&MagagazineID=13. [Hebrew]

24. According to the 1997 State Comptroller’s Report, the Israel Ports Authority defines a ׂgood” level of service as a wait of up to 2.2 hours. Yet in 1995, the average wait was 19.2 hours in Haifa and 14.4 hours in Ashdod. Figures quoted in Amir Etzioni, ׂReforming Israel’s Seaports” (Jerusalem: Institute for Advanced Strategic and Political Studies, 1999), pp. 18-19. [Hebrew]

25. Nehemia Strasler,“Scandal at the Ports,” Ha’aretz, May 30, 2000.

26. The real figure is even higher, because the amount of time that ships spend waiting over the weekend (Friday afternoon through Sunday morning) is not included in the authority’s calculations. Etzioni, ׂReforming Israel’s Seaports,” pp. 18-19.

27. Nehemia Strasler, “Sail, Sail, My Ship,” Ha’aretz, February 8, 2000. Of the 15 exceptions, 10 are in Third World countries and two others in Israel (Haifa and Ashdod).

28. In autumn 2003, the government once again tried to implement this reform and was met by another strike, which ended when the Finance Ministry agreed to negotiate with the port unions over the plan. As of this writing, the negotiations are still continuing, but it appears that the ministry has already conceded major elements of its original proposal.

29. Unemployment checks were withheld for five days as a result of the strike. Moti Bassok, Haim Bior, ׂThe Strikes Are Over at the National Insurance and Customs Offices,” Ha’aretz, November 21, 2001.

30. Gordon,“A Plague on Strikes.”

31. Relly Sa’ar, “A Baby with Pneumonia Was Refused Treatment,” Ha’aretz, December 24, 2003.

32. Indeed, strikes were one of the factors cited by adults and students alike as contributing to Israel’s poor showing in a comparative study of student achievement administered by the Program for International Student Assessment. The study, whose results were published in July 2003, found that Israeli 15-year-olds ranked 30th out of 41 countries in reading comprehension, 31st in mathematical skills, and 33rd in scientific knowledgeׁmaking Israel the only country to rank in the bottom third of the industrialized nations three years running. See www1.oecd.org/publications/e-book/9603071E.PDF.

33. The government’s decision to dock paychecks, albeit partially, during both of the major strikes in 2003 was a rare exception to this rule.

34. Haim Bior, Haim Shadmi, Yam Yehoshua, ׂLocal Councils Strike Ends; Trash Collection Begins,” Ha’aretz, November 14, 2002. In addition, four days were deducted from municipal workers’ annual vacation allowance, and they agreed to ׂreturn” the remaining four days by working extra hours. Neither of these measures, however, has anything like the deterrent effect of losing almost two weeks’ salary.

35. Gordon, “A Plague on Strikes.”

36. Avraham Tal, “Peretz’s Empty Words,” Ha’aretz, April 30, 2003.

37. Inflation was 1.3 percent in 1999, 0 percent in 2000, and 1.4 percent in 2001. Data taken from the Central Bureau of Statistics website.

38. What makes such strikes even more outrageous is that the strikers are already some of the best-paid workers in the economy. In 2001, the average wage for the economy as a whole was $1,700 a month. By comparison, average wages that year at a sampling of public-sector agencies were as follows: Bezeq (the phone company), $2,900; National Insurance Institute, $2,600; Airports Authority, $3,100; Ports and Railways Authority, $4,300; Israel Broadcasting Authority, $3,600; Israel Electric Corporation, $4,000 (plus unlimited free electricity); and Mekorot Water Company, $3,100 (data from the Finance Ministry’s annual report on public-sector wages). And these figures do not include the other huge financial benefit enjoyed by civil servants: Whereas private-sector workers were required at that time to deposit 5.5 percent of their salaries in pension funds every monthׁthe figure was slated to increase to 7 percent at the beginning of 2004ׁthe government picked up the entire tab for civil servants’ pensions until January 2004, and even after that, civil servants were required to contribute only 1 percent of their salaries.

39. Collective Agreements Law (1957), art. 24. [Hebrew]

40. The Settlement of Labor Disputes Law (1957) says that the no-lawsuit provision applies to all public-sector strikes called while a collective agreement is in force except for (a) those not authorized by the Histadrut and (b) those called over wages and benefits. The first exception obviously is not much of a restriction. The second seemingly is more significant, since, though strikes are often called over other issues as well (dismissals or demands for additional hiring, for example), wages and benefits are the pretext for about 20 to 25 percent of all strikes, according to Labor Ministry statistics (see the Labor Ministry website: www.molsa.gov.il). In practice, however, government agencies almost never sue over strikes, due to a combination of unwillingness to antagonize the Histadrut and the objective diYculties of winning such a suit in the pro-union labor courts. With a sympathetic court, it would be relatively easy for a union to argue that some change in circumstances (for instance, an increased workload) justified striking for higher wages despite the no-strike pledge in the collective agreementׁand, as will be seen below, the labor courts have generally proven willing to seize any pretext for bending the law in the unions’ favor.

41. Shirom, Introduction to Labor Relations in Israel, p. 242.

42. Sinai, ׂLimiting the Right Is Reasonable”; Finkelstein, ׂA Solution to Strikes,” pp. 29-31.

43. The ban does not encompass all employees of the security services, however: The IDF has many civilian employees who are allowed to strike.

44. Finkelstein, ׂA Solution to Strikes,” p. 7. To avert the threat of such a bill, the Histadrut and the government signed an agreement to establish a voluntary arbitration mechanism. This has done almost nothing to solve the problem, however, since in practice, the unions have generally concluded that they can get more by striking than through arbitration. As a result, a grand total of one case a year was referred to arbitration in 2000 and 2001, though in each of those years, there were close to 100 public-sector strikes. See Finkelstein, ׂA Solution to Strikes,” pp. 8-10.

45. According to a Finance Ministry statement, this is what Netanyahu meant when he threatened on May 15, 2003, to enact legislation that would ׂdeprive the Histadrut of the ability to shut down the country.” Ha’aretz, May 16, 2003.

46. Zvi Zrahiya, ׂFinance Ministry Weighs Legislation Limiting Strikes,” Ha’aretz, November 24, 2003; Haim Bior, Gideon Alon, ׂThe Government Will Support Restrictions on the Right to Strike,” Ha’aretz, December 21, 2003; Haim Bior, Zvi Zrahiya, ׂNetanyahu and Peretz to Meet Today; Exceptions Committees Get Back to Work,” Ha’aretz, January 1, 2004. The private member’s bill was submitted by MK Ruhama Avraham (Likud).

Two main arguments are usually raised by opponents of this proposal. One is that allowing workers to decide for themselves whether or not to strike somehow infringes on the right to strikeׁan argument that, despite its apparent incoherence, is nonetheless surprisingly common. Social Affairs Minister Zevulun Orlev, for instance, appealed the cabinet’s initial decision to back Avraham’s bill because he claimed that it would violate the right to organize. (In response to this appeal, the cabinet, at Prime Minister Ariel Sharon’s urging, rescinded its original decision and decided instead to set up a committee to study the matter.) Ha’aretz columnist Ruth Sinai said the bill ׂuproots one of the basic freedoms of any democratic regime: The right to strike.” Ruth Sinai, ׂWorkers Without Tools,” Ha’aretz, June 8, 2003. Even the Association for Civil Rights in Israel charged in its annual report (released in July 2003) that such legislation would violate the right to strike as guaranteed by international treaties Israel has ratified. Moshe Reinfeld, ׂReport: Government Damaging the Social Fabric,” Ha’aretz, July 22, 2003.

The other argument is that, in most workplaces, particularly those where powerful union leaders have considerable control over workers’ job security and chances of promotion, a majority of workers would automatically approve any strike backed by the leadership. Since the bill has never been tried, the evidence against this argument is largely anecdotal. An example is Avraham’s claim that, after Netanyahu took the highly unusual step of docking workers’ paychecks for the full extent of the May 2003 strike, she received hundreds of complaints from public-sector workers who were furious at having lost pay due to a strike they were forced into against their will. It was these complaints, she said, that prompted her to submit her bill. Ruth Sinai, ׂTaking Away the Only Thing the Workers Have,” Ha’aretz, June 3, 2003. Another important piece of evidence in the bill’s favor is the fact that some 10 percent of ministry employees nevertheless came to work on the first day of the strike, April 30, 2003. Sami Peretz, Shlomi Shefer, Haim Bior, Michael Sabo-Weinberger, ׂInterest Rates Will Be Inflated by 0.3 Percent Because of the Strike,” Ha’aretz, May 1, 2003. If that many workers were willing to openly break the strikeׁeven though they had no legal sanction for this move, as they were violating a legally declared strike and were thereby risking retribution from their unionsׁthe number who would have been willing to cast a secret ballot in favor of not striking to begin with presumably would have been much higher.

47. Gordon, ׂA Draining Strike.” When its mediation efforts failed, the National Labor Court did finally order the stoppages halted. But by allowing them to continue for four days while it tried to broker an agreement, it sent a clear message that the tactic was not illegitimate.

48. Haim Bior, ׂThe Employers Are Fed Up with This Matter Called Law,” Ha’aretz, July 7, 2003.

49. Bior, ׂThe Employers Are Fed Up.”

50. Nehemia Strasler, ׂGetting Paid to Strike,” Ha’aretz English Edition, May 9, 2003.

51. Steve Adler, ׂThe Right to Strike as Seen Through Court Rulings,” in Aharon Barak and Haim Berenson, eds., The Berenson Book (Jerusalem: Nevo, 1997), pp. 487, 492 [Hebrew], quoted in Finkelstein, ׂA Solution to Strikes,” p. 21. It is worth comparing this position to the attitude taken by courts in the United States. American law authorizes the president, with court approval, to issue restraining orders even against private-sector strikes (staged by miners, dockworkers, etc.) that he deems dangerous to the public order. Such orders are far broader than anything the Israeli government is authorized to issue: Back-to-work orders issued by the Israeli cabinet apply only to a handful of key personnel in any striking industry, whereas such presidential decrees bar every employee in the targeted industry from striking for the next 80 days. Yet since this law was introduced in 1947, the American courts have approved 29 of the 47 presidential requests for such an order, or just over 60 percent. Finkelstein, ׂA Solution to Strikes,” p. 30.

52. Bior, ׂThe Employers Are Fed Up.”

53. Many supporters of the labor courts have used the National Labor Court’s decision of November 2, 2003ׁwhich barred the Histadrut’s planned general strike and limited the organization to a four-hour protest walkoutׁto claim that the court’s pro-union bias is a myth. In fact, this case actually bolsters the claim that moving labor disputes over to the regular court system would probably produce less skewed results. Legal commentators, including Menahem Goldberg, Adler’s predecessor as president of the National Labor Court, agree that Adler was forced to issue the restraining order that day by the existence of a rare High Court of Justice precedent. That precedentׁfrom one of the few labor disputes that have ever reached the High Courtׁinvolved a planned strike by Bezeq workers in 1993 to protest the government’s decision to open the telecommunications industry to competition. After the National Labor Court approved the strike, the government petitioned the High Court. In its ruling, the High Court distinguished among three types of strikes: Political (i.e., aimed at government policy), which are forbidden; economic (issues of employer-employee relations), which are permitted; and ׂquasi-political,” meaning strikes aimed at economic policies such as privatization, which could indirectly affect public-sector workers. On quasi-political issues, the court said, unions are permitted ׂonly a short protest strike.” Since one of the main pretexts for the planned general strike in November 2003 was a pension reform law passed by the Knesset in May, commentators agreed that the High Court precedent left Adler no choice but to put the strike into the ׂquasi-political” category. See Ze’ev Segal, ׂBetween Political and Economic StrikesׁThe Court Has Recognized Only Protest Strikes,” Ha’aretz, November 4, 2003; Ruth Sinai, ׂThe Goal: Promoting Dialogue Rather than Judgment,” Ha’aretz, November 6, 2003.

54. Amnon Rubinstein, one of Israel’s leading constitutional scholars, recently cited this tendency as his main reason for opposing the establishment of a constitutional court. ׂIf a special constitutional court is set up to annul laws enacted by the Knesset, it will annul laws,” he warned, since otherwise it will not be able to justify its existence. See Gidon Alon, ׂEven Ravitz Supports Enactment of the Basic Law: Legislation,” Ha’aretz, July 1, 2003. But the argument applies equally well to the labor courts: In order to justify these courts’ existence as a separate system, judges feel a need to distinguish themselves from the ordinary courts by offering a ׂservice” that the latter do not provide. Adoption of a radically pro-labor stance that vastly expands workers’ existing rights is one way to do this.

55. Lapid’s proposal is to maintain the labor courts as an independent system, but with one change: Instead of being technically autonomous, they now will be subordinate to the Supreme Court. At first glance, this may sound like a major change, since Supreme Court review could conceivably curb some of the National Labor Court’s excesses. In practice, however, this ׂreform” leaves the situation virtually unchanged. Currently, though there is no right of appeal against the National Labor Court’s decisions, they can be challenged through a petition to the Supreme Court sitting as the High Court of Justice. The catch is that the High Court can choose whether or not to hear such a petition, and it only rarely chooses to do so. Under Lapid’s proposal, a decision by the National Labor Court could be appealed directly to the Supreme Court. However, since most cases begin in the regional labor courts and reach the national court only on appeal, a challenge to the national court’s decision would constitute a second appeal, and under Israeli law, only first appeals must be heard; second appeals are at the Supreme Court’s discretion, and it seldom chooses to hear them. Thus, in practice, it is unclear that Lapid’s proposal would result in significantly more cases reaching the Supreme Court.

56. Lately, however, there does seem to have been a change in governmental policy toward striking workers: The Finance Ministry did dock workers’ paychecks for the strike in May 2003, and it also cut 30 percent from workers’ salaries for the work sanctions that occurred in October, November, and December of that year.

57. Finkelstein, “A Solution to Strikes,” p. 24.

58. In one recent example, Britain’s Prime Minister Tony Blair deployed 19,000 soldiers to replace striking firemen during a strike that ran from December 2002 to February 2003. Finkelstein, ׂA Solution to Strikes,” p. 29.

59. It is not clear whether this cut in pay applied to all the workers who struck, or merely to a minority of them. Most news reports on the strike said that some 3,000 workers would be docked full pay, and all the rest would lose 30 percent. But one prominent economic commentator, Nehemia Strasler, claimed that most workers would lose nothing, while the remainder would lose 30 percent. Nehemia Strasler, ׂThe Next Strike Is Already on the Horizon,” Ha’aretz, January 6, 2004.

60. Moti Bassok, Haim Bior, Anat Georgi,“Goods Will Arrive via Egypt and Jordan; Exporters and Importers Will Be Compensated,” Ha’aretz, October 2, 2003.

61. The ports strike came to a temporary haltׁa month-long lull designed to allow negotiations to proceedׁbefore the private Israel Shipyards wharves were up and running, and only a small amount of freight was actually shipped through Port Said and Aqaba. Nevertheless, both decisions represent a radical departure from past governmental practices.

62. The settlement that ended the civil servants’ strike in January 2004 was not a clear victory for either side. The Finance Ministry won some significant achievements, particularly in the area of pension reform, but it also made major concessions that, according to one estimate, will reduce the savings it had hoped to achieve by as much as $2.25 billion. What is clear, however, is that the duration of the strike represents a serious failure on the government’s part. For 100 days, government agencies provided no service to the citizenry, seriously impairing both economic and ordinary life. Yet the government made no effort to mitigate this damage, as it did during the ports strike; nor did it attempt to make the strike harder on the workers, as it legally could have, by declaring a lockoutׁmeaning that workers would do no work and receive no pay instead of performing administrative tasks and receiving 70 percent of their salaries. For costs of the settlement, see Haim Bior, ׂGovernment Offices to Open Today; Cost of Settlement Almost NIS 10 Billion,” Ha’aretz, January 6, 2004.

63. Zrahiya,“Finance Ministry Weighs Legislation.”

64. Nehemia Strasler, “The Majority Opposes the Strikeׁand the Cutbacks,” Ha’aretz, May 2, 2003.

65. Ministry of Labor and Social Affairs, Department of Labor Relations, ׂThe Salaried Public’s Positions on Labor Relations Issues: Unionization, Strikes, Labor Disputes, and Job Security” (Jerusalem: Ministry of Labor and Social Affairs, 2002), pp. 6-7. [Hebrew] The survey found that 54.4 percent of respondents ׂsupported” mandatory arbitration for public-sector strikes and another 29.9 percent ׂtended to support” it; only 11.6 percent opposed it. When the question was asked in a different wayׁׂWould you support a ban on strikes?”the margin in favor shrank, but remained clear. The surveyors asked the latter question about four different areas of the public sector (electricity and water; government offices and local authorities; health; and education) as well as about a general strike, and, in each case, the number of those in favor ranged from 47.9 to 53.8 percent, while the number opposed ranged from 40 to 42.6 percent. The ministry concluded that the difference was largely semantic: People felt more comfortable declaring their support for binding arbitration than they did for a ban on strikes. However, the difference could also reflect a substantive concern: A simple ban on strikes does not necessarily leave workers with any alternative method of redressing their grievances, whereas the institution of binding arbitration does.

66. One of the main pretexts of the fall 2003 civil-service strike, for instance, was a demand that the government rescind a pension-reform law enacted by the Knesset in May 2003ׁa reform to which the Histadrut had acquiesced at the time. Several economic commentators attributed the turnabout in the Histadrut’s position to the fact that in May, the economic crisis was at its peak and the labor federation dared not push too hard, whereas by fall, signs of an upswing had started to appear, encouraging the unions to believe that the time was ripe for a repeal.