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FADING CORPORATISM
Fading
Corporatism
Israel’s Labor Law
and Industrial Relations
in Transition

GUY MUNDLAK

ILR Press
an imprint of
cornell university press
ithaca and london
Copyright © 2007 by Cornell University

All rights reserved. Except for brief quotations in a review,

this book, or parts thereof, must not be reproduced in any form
without permission in writing from the publisher. For
information, address Cornell University Press, Sage House, 512
East State Street, Ithaca, New York 14850.

First published 2007 by Cornell University Press

Printed in the United States of America

Library of Congress Cataloging-in-Publication Data

Mundlak, Gai.
Fading corporatism : Israel’s labor law and industrial relations in transition / Guy
Mundlak.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-8014-4600-9 (cloth : alk. paper)
1. Labor laws and legislation—Israel. 2. Industrial relations—Israel. 3. Corporate state—
Israel. I. Title.
KMK1220.M86 2007
344.569401—dc22
2007018958

Cornell University Press strives to use environmentally responsi-

ble suppliers and materials to the fullest extent possible in the
publishing of its books. Such materials include vegetable-based,
low-VOC inks and acid-free papers that are recycled, totally
chlorine-free, or partly composed of nonwood fibers. For further
information, visit our website at www.cornellpress.cornell.edu.

Cloth printing 10 9 8 7 6 5 4 3 2 1
To Yaffa and Yair
 Contents

Preface ix
Acknowledgments xiii

Introduction: Labor Law in Transition—Between Law

and Industrial Relations 1

Part I Corporatism
1 Corporatism: Theory and Institutional Design 13
2 The Israeli Variant of Corporatism 34

Part II Constructing Corporatist Labor Law, 1920–1987

3 Legislating for Corporatism, 1920–1968 61
4 Adjudication in the Service of Corporatism, 1969–1987 89

Part III Fading Corporatism

5 The Changing Metafunction of Labor Law 119
6 The Juridification of the Employment Relationship 153
7 The Changing Legal Construct of Dualism 188

Part IV Corporatist Labor Law in Context

8 Corporatist and Pluralist Labor Laws 227
9 The Rule and Role of Law in Industrial Relations 241

References 261
Index 277
 Preface

This book surveys Israeli labor law from 1920 to the present. The process of
writing and publishing a book does not always conform to the pace of
events, particularly when the subject matter is contemporary history. The
book is therefore updated until the end of 2005. References to court cases
and events that began before 2005 were updated at the end of 2006. How-
ever, no developments since that time have been integrated into the text. In
my opinion, no such event undermines the central argument of the book;
several reinforce it.
Presenting a book in English that focuses on Israel’s labor law presents
many editorial dilemmas. Moreover, the book’s claim is that Israeli law devel-
oped on the basis of continental European systems and is now adopting fea-
tures of American law. Hence it is difficult to determine how to translate the
law and how to convey a “feel” of the Israeli story. While providing a consis-
tent method was the most important goal, I have also attempted to keep the
book as simple and user-friendly as possible.
Generally, translation of legislation draws on State of Israel—Ministry of
Labor and Social Affairs, Labour Laws (2000)—an unofficial publication of
Israeli labor legislation, translated into English. This translation is also used by
the International Labor Organization (ILO) in its NATLEX database. For rea-
sons of consistency, I have usually adhered to the terminology of the law unless
I found its terms to be exceptionally undesirable (in which case it is mentioned
in a footnote). Where necessary there are explanations of the terminology in
footnotes. For the most part, the terms chosen are based on internationally
shared perceptions about the basic elements of labor law. However, the readers
must bear in mind that there are always important differences among legal

ix
x Preface

systems, and thus it is important to consider the terms in their Israeli context
rather than to assume that they are synonymous with similar words in other
systems.
The book assumes no knowledge of Hebrew, and to the extent possible it
refrains from drawing on Hebrew terminology. References to literature in He-
brew are marked accordingly in the list of references, but the titles have been
translated into English. The parties’ names in court cases are also translated,
particularly when it is assumed that a translation may help the reader in, for
example, identifying which side is the employer and which the worker, or
when the party is a trade union rather than an individual.
Citations of statutes are made by reference to the law’s name and year of
legislation. When necessary, the year in which the law was amended is also
mentioned.
Debates in the Knesset (Israel’s Parliament) are referred to by citing The
Knesset Protocols, followed by the common abbreviation D.K. Where rele-
vant there is also a reference to the MK (Member of Knesset) whose speech
is cited.
Citation of cases designates the particular court in which the case was lit-
igated (for example—National Labor Court, Supreme Court, or Tel Aviv
District Labor Court), the case number, the parties, and if published in an of-
ficial publication—PDI (Supreme Court cases) or PDA (Labor Court cases).
If the case has not been published in the official publication, the reference
states “unpublished” and the year in which the decision was given. This in-
formation should suffice for those who seek to find the cases in commercial
databases.
The numbering of cases is of particular importance because it indicates the
year in which the case was opened (rather than decided). In Supreme Court
cases this is designated, for example, as 340/98 (case was opened in 1998).
Unfortunately, until 1997 the Labor Court’s cases used a Hebrew numbering
system. Hence a case number 30/1-4 was opened in the Hebrew year 5730,
which is 1970 in the Roman calendar. From 1997, the numbering of cases
uses the Roman calendar. Thus a case that is designated as 56/* was opened
in 1996, only a year before a case that was numbered 97/*. It should be noted
that labor law cases do not use the format of “Moses v. Mohammad” but
rather “Moses—Mohammad,” to emphasize that labor relations should not
be confrontational. As an example of this system, National Labor Court 33/3-
25 Workers’ Committee of Air-Stewards in El-Al—Edna Chazin, PDA 4:365
designates a case that reached the National Labor Court in 1973; the party ap-
pealing to the Court is the workers’ committee in EL-Al, while the respondent
is an individual worker; the case was published in the formal publication of
Labor Court cases, in volume 4, on page 365.
The final matter of terminology relates to the Histadrut. The General His-
tadrut designates the largest trade union and the central institution in Israeli
industrial relations. A possible point of confusion for the readers is that there
 Preface xi

are other trade unions that are referred to as histadruts (see chapter 2). Thus
for clarity I have adopted the following system:

• “Histadrut” (capitalized) when used alone refers to the General His-

tadrut.
• A histadrut that is either outside or within the General Histadrut will be
specifically identified (e.g., the National Histadrut), and “histadrut” used
alone to refer to one (or more) of the trade unions within the General His-
tadrut will be lowercase.
 Acknowledgments

This book summarizes several years of writing and was intended to clarify
how my previous works—on trade unions, strikes, social rights, juridification,
social movements, and migrant workers—are all part of the same project. I
hoped to summarize a decade of research. I was surprised to discover that it
leaves me with more questions than answers.
Through the years I have benefited immensely from the support of my
friends and colleagues at the Tel-Aviv University—both at the Faculty of Law
and at the Department of Labor Studies. They have provided a stimulating en-
vironment and many ideas and challenges to learn from. In addition, since
coming back to Israel from my years of studies in the United States, I have
found an exciting milieu of labor scholars, lawyers, judges, and activists—in
trade unions and nongovernmental organizations (NGOs). It is a small and
closely knit community in which many people have taught me much about la-
bor and about law.
In moving from an assortment of articles and ideas to writing a book, I re-
alized that much effort is required to glue the pieces together. Several readers
have bravely read through the whole manuscript and provided invaluable
comments. I am greatly indebted to Ruth Ben-Israel, Michael Shalev, Alan
Hyde, and Marley Weiss, who succeeded in sifting through the many details
while never losing sight of the big picture. Ruth Ben-Israel also helped me
with many questions, filled in the details, and shared her personal experiences;
her enthusiasm was uplifting. I am also very grateful for the help and com-
ments extended by Yinon Cohen, Guy Davidov, David de-Vries, Tali Kristal,
Hila Shamir, and Neta Ziv, who helped me with various parts of this project.
Remarkable editing by Ruvik Danieli and Jamie Fuller upgraded the text in
style and content. In Cornell/ILR Press I was fortunate to meet Fran Benson,
xiii
xiv Acknowledgments

whose heartwarming encouragement and belief in the book were more than I
could have asked for.
I started writing the book while spending a month as a guest at the Hugo
Sinzheimer Institute in the University of Amsterdam. I completed it when I
came back to visit for a year. I thank my colleagues at HSI for their friendship,
hospitality, and the many lessons on European labor law. My stay in the insti-
tute as a Marie Curie Fellow was made possible by a generous grant from the
European Union, for which I am greatly indebted. In Israel, the preparation of
the book was funded by the Cegla Center for Interdisciplinary Research of the
Law and encouraged by its directors, who changed roles and always remained
supportive—Eyal Benvenisti, Hanoch Dagan, and Ariel Porat.
This is also an opportunity to repay old debts to several people who helped
me take the decision to study labor law and introduced me to its many layers.
Aharon Barak, Nurit Elshtein, and Paul Weiler put me on track. My many
friends in INTELL (International Network on Transformative Employment
and Labour Law) kept the excitement alive.
The book is dedicated to my parents, whose personal history merges with
the story of Israel revealed here and whose values aided me in formulating the
right questions and constantly seeking the answers. Finally, Gali, Hagar, and
Noa have provided the greatest support and affection, which fueled me
throughout this project. It is their work as much as it is mine.
FADING CORPORATISM
 Introduction
Labor Law in Transition—Between
Law and Industrial Relations

Over the last decade Israeli labor law—and, more generally, social law—has
changed dramatically. The changes are not easily viewed from the outside. The
two laws governing collective labor relations—namely, the Collective Agree-
ments Law (1957) and the Settlement of Industrial Disputes Law (1957)—have
hardly been touched. A broad range of new laws has not seemed to alter the
basic premises of Israeli labor law but has merely dealt with issues not touched
upon in previous legislation, most notably in the area of antidiscrimination and
equal opportunities. The case law, developed in a common-law fashion, draws
on self-reference and always cites previous cases to prove that little has changed
and that most new developments are the result of incremental development.
These convenient images of continuity conceal what the agents of law ( judges,
legislatures, labor lawyers, and NGOs) are all well aware of: labor law has
changed dramatically, and nothing has been left intact.
There is no single legal anchor that can demonstrate the nature of this
change. Instead, an accumulation of changes has affected the whole. The ex-
isting laws of collective bargaining, dismissals, and equality have been trans-
formed. The definition of “employee” has been rewritten over a short period
of time. The courts gradually nudged aside the traditional doctrine of “em-
ployment at will” and replaced it with the “just cause” rule. Labor law, at all
levels, has been constitutionalized. New doctrinal fields of labor law have
emerged: employment equality; rights and obligations in the process of collec-
tive bargaining; the law of trade union organization drives; the law on the
permissible scope of strikes; and the law of employees’ rights in the process of
corporate mergers, acquisitions, and restructuring. Changes are not always in
the areas most readers would expect to find them. For example, the guarantee
of national health care insurance since 1995 introduced a radical rewriting of
1
2 Introduction

health law but also implied a considerable rewriting of labor law at the same
time. The current state of affairs indicates that most legal references from
more than ten years ago have become outdated.
The types of changes that can be deciphered upon a close reading of the
Israeli legal system are more commonly apparent in transitional political
regimes. Yet in Israel there was no political revolution. Although in 1977 the
right-wing Likud Party ended the hegemony of the Labor Party, which had
been in political control from the founding of the state in 1948, the transition
was democratic and did not alter the basic political foundations of the state.
Israel did not go through the processes of transition that have been character-
istic of, for example, Eastern Europe. The political transformation also pre-
dated changes in labor law by at least a decade. Moreover, much of the newly
protective labor law has been legislated during the years in which the right-
wing party has ruled. It is therefore not possible to directly link changes in law
with the left-right changes in the Israeli political map. A relationship exists,
but there are too many gaps to be filled.
How, then, do we explain the extensive legal transition in Israel? There are
two common ways of doing this. The first is to account for law’s transition by
drawing on legal reasoning. This type of explanation suggests, for example, that
the changes in labor law are a result of changing jurisprudence. The Supreme
Court has developed a jurisprudence that draws on values, purposes, and
balancing-of-rights tests. Consequently, the law is more commonly phrased in
terms of good faith, human dignity, reasonableness, public policy, and the like.
Two basic laws on human rights were passed in 1992 and have been acknowl-
edged to comprise a constitution in a state traditionally thought of as having
none. The Supreme Court has extended the protection of human rights to the
private sphere. All of these general changes affected labor law. This type of ex-
planation, however, is not sufficient. It does not explain why many branches of
the law have generally remained intact while labor law has changed. Moreover,
the explanations fail because they are self-referential. They do not explain why
the general principles changed as well. At a higher level of abstraction, these ex-
planations conceive of all changes in law as being derived from within the legal
system itself. They assume that the legal system is closed and that it develops its
own rhetoric, logic, and structures. Changes may have taken place because
some rules simply didn’t work. Others rules were needed instead. These expla-
nations assume that there are benchmarks by which to measure the outcomes of
the legal system and decide when they should be replaced. These benchmarks
may include consistency, clarity, preference for judicial discretion over rules,
and the like. Yet this legalistic explanation is not really satisfying either. It does
not explain why the previous regime of labor law no longer performed well
enough? Where did it fail? Moreover, problems of consistency and clarity re-
quire only relatively technical adjustments in the law. Such changes hardly ac-
count for the scope of the change in labor law.
There are, of course, variations to this first type of explanation. For example,
popular discourse tends to place emphasis on personalities. Many changes in
 Labor Law in Transition 3

labor law are often explained as a result of the changing composition of the
Labor Court. The president of the National Labor Court resigned in 1997 and
was replaced by one with different views and a different temperament. More
sophisticated explanations explain changes in labor law by reference to
changes in the general jurisprudence of Israel and point to the importance of
Chief Justice Barak, the president of the Supreme Court in Israel, in inducing
change. These explanations can probably account for one change or another,
but they hardly succeed in capturing the complexity of transformation and the
multiple agents involved in the process. They assume that the law is a one-
person show. They don’t explain, and in fact lack the tools to explain, whether
these unique personalities could have achieved the same changes under differ-
ent circumstances. They can’t account for changes that take place outside the
courtroom, and they ignore the role of the legislature. They are not satisfac-
tory because they assume, just like the previous type of explanation, that the
legal system can be explained by reference to the legal system itself. They are
even more disconcerting than those previous explanations because they cannot
be rigorously tested and are often more dependent on anecdote than on fact.
Unlike the law-centered explanation, there is an alternative type of explana-
tion to the rapid rewriting of labor law, which is characterized by disregard,
lack of interest, and even hostility toward the legal reasoning itself. These
views are more difficult to characterize because in their external appearance
they are usually silent about the law. There are books about transformation,
books about society, and books about labor, in all of which the analysis hardly
touches upon the legal rule. When law is mentioned, it is deemed to be exoge-
nous to the study of economic, social, and political systems. It’s not that any-
one suggests that laws do not exist but only that law doesn’t really matter.
Law is held to be a passive reflection of market pressures, the electorate’s
power, and social processes. To understand law it is therefore necessary to
study other systems. But once the study of other systems is undertaken, the
study of law actually becomes no longer interesting in itself and is relegated to
the lawyers, who can deal with law’s internal logic and rhetoric in their quint-
essential professional manner.
The two views of legal transformation are not really in tension with one an-
other. They actually share a fundamental assumption. Both views relegate law
to a separate sphere of inquiry. Gouging a strict divide between the legal and
other social systems may be methodologically convenient but not convincing.
To overcome this imposed division of labor, the fundamental premise of this
book is that law is not simply a mirror of other processes, for it has also taken
part in constituting them. Law and industrial relations are autonomous sys-
tems, each with its own agents, institutions, modes of strategic interaction,
and communications. The political and social systems have used law to strate-
gically affect the nature of the industrial relations system that was being incre-
mentally constructed. But law also reflected the range of strategic interactions
among the agents of other systems, particularly the industrial relations sys-
tem. The proposed explanation for the new labor law is therefore based on the
4 Introduction

interaction between the legal and the industrial relations systems, without as-
suming that one is exogenous to the other.
Juxtaposing law and industrial relations side by side allows another kind of
explanation for the transformation that has taken place in both systems. The
argument made in this book is that the rapid disintegration and current rewrit-
ing of labor law are a response to the collapse of what was (roughly) a corpo-
ratist regime. At the same time law also constituted the corporatist regime and
took an active role in constituting the new system.
The original web of rules constructing Israeli labor law was developed for
several decades from the foundation of a corporatist industrial relations system
in pre-statehood Palestine until after the foundation of the Israeli state. At the
peak of what is designated here as “corporatist labor law,” sometime in the
1980s, the legal rules were intended to minimize legal intervention and entrench
the autonomy of the social partners (i.e., trade unions and employers’ associa-
tions). Law further supported and protected a unique system of interests repre-
sentation that was characterized by centralization, concentration of interests,
and the delegation of power from the state to the active associations in the in-
dustrial relations system. The corporatist model was therefore to construct “a
law without law”—that is, a law based on the autonomous making of norms
and not by means of state-authored instruments (laws and adjudication).
A second phase of labor law began in the late 1980s; this book takes the
year 1987 to be the pivotal year, although any single date is probably artificial
and oversimplified. In 1987 the Minimum Wage Law was passed after more
than ten years of political deliberations, expropriating the determination of a
national minimum wage from collective bargaining. Soon thereafter other le-
gal developments followed. The second phase of labor law came in tandem
with the gradual decline of the Israeli corporatist system, and a mismatch be-
came apparent. The corporatist nature of the Israeli system faded. Member-
ship rates in trade unions and the coverage of collective agreements declined.
Collective bargaining became decentralized, and the concentration of interests
representation that prevailed in the past was no longer sustained. The declin-
ing role of collective agreements was compensated for by a growing use of
regulation and by the lively intervention of nongovernmental organizations in
the struggle over regulation. The corporatist system was gradually replaced by
a pluralist alternative.
The labor law that was devised to entrench the corporatist system was no
longer adaptable and did not respond to the problems that arose once the cen-
tralized and autonomous making of norms was no longer regularly negoti-
ated. At this stage, the state-centered authors of labor law—most notably the
legislature, courts and executive branch—as well as new agents in civil society,
started an intensive phase of rewriting labor law. It was quite clear that the de-
cline of the corporatist system not only rendered labor law at that time inap-
propriate but also made planned reform impossible. To compensate for the
decline of corporatism, legal arrangements were expected to provide a new set
of agreed-upon, acceptable, and suitable norms. Yet the same causes underlying
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