1 Collective Agreements Law, secs. 3–4, 15–16, 19; (1957) 11 L.S.I. 58, 59, 60, 61.

2 Id., sec. 22.

3 Id., sec. 20.

4 Id., at 61 (translation is the author's and varies slightly from the Ministry of Justice version).

5 Sheshet Kochavim Co. v. Fishler, (1980) 11 P.DA. 169; Atlantic Fishing Co. v. Rubin, (1964) 18(ii) P.D. 294.

6 See, e.g., Soldiers' Bank v. Clerks' Union, (1971) 2 P.D.A. 260, at 267–69.

7 See Reuven and Shimon v. State of Israel, (1975) 7 P.D.A. 120, at 134.

8 See Raday, , “The Power to Alter Personal Provisions in Collective Agreements”, (1978) 13 Is. L.R. 326Google Scholar, at 327–40.

9 Israel Steelyards v. Ross, (1979) 11 P.D.A. 3, at 10–11; Histadrut v. State of Israel, (1977) 9 P.D.A. 41; Workers Bank v. Ben Zion, (1975) 7 P.D.A. 197, at 203–05.

10 Collective Agreements Law, secs. 7, 10(a).

11 See, e.g., Southern Marketing Co. v. Krupnic, (1979) 11 P.D.A 95, at 101, 103.

12 Skolnick v. El-Al, (1990) 21 P.D.A. 447, at 458–59; Tadiran Co. v. Almakiyas, (1991) 22 P.D.A. 423, at 428–31; Keren Hayesod v. Academicians' Union, (1990) 22 P.D.A. 111, at 117–19.

13 A pro-labor determination in regard to an employee benefit deriving from a normative provision of a collective agreement, in a suit brought by several employees, will ordinarily bind the employer in all subsequent employee suits for the same benefit. Where the court's determination is to the detriment of the employees, however, employees who were not party to the action will not be bound by the result. Tadiran Co. v. Almakiyas, supra n. 12, at 431; El-Al v. Rubinstein, (1989) 20 P.D.A. 493, at 499–500.

14 Zuntag v. Jewish National Fund, (1990) 22 P.D.A. 124, at 126–29; Tirosh v. Beilinson Medical Center, (1989) 20 P.D.A 491.

15 Histadrut v. Isral Hotels' Assn., (1993) 25 P.D.A 339, at 345–46; Histadrut v. Tel Aviv University, (1984) 15 P.D.A 260, at 265–66. This is the current position of the National Labor Court. The Supreme Court has not ruled directly on this issue, however. See Ben-Israel, , “The Validity of Unfair Dismissal and Its Legal Implication”, (1980) 7 Iyuney Mishpat 345Google Scholar, at 359.

16 Id., at 346–47. In one Supreme Court decision, the Court strongly castigated the National Labor Court for continuing to ignore its prior rulings. See Histadrut v. National Labor Court, (1978) 32(i) P.D.A. 819, at 824–25.

17 Histadrut v. Tel-Aviv University, supra n. 15.

18 See cases cited at supra nn. 14–15.

19 See, e.g., Histadrut v. Farmers' Federation, (1972) 3 P.D.A. 253; National Comm. Health Ministry Workers v. State of Israel, (1976) 7 P.D.A. 281; Reuven and Shimon, supra n. 7, at 133–35, set aside at (1976) 30(iii) P.D. 382; Technion v. Histadrut, (1985) 39(H) P.D. 162. The labor court's concern for proper legal classification is often accompanied with a similar involvement with procedural matters: instead of “serving” the substantive law, procedural considerations seem to dictate the substantive outcome. Compare Port Authority v. National Labor Court, (1979) 34(ii) P.D. 141.

20 See, e.g., Goldberg, M., Labor Law in Israel (1982) 140–42Google Scholar; Histadrut v. Farmers' Federation, supra n. 19, at 270.

21 Zamir, See, “Judge Bar Niv and Israel Labour Law”, in In Memoriam Zvi Bar-Niv (1987) 7, 9–10.Google Scholar

22 Id., at 11.

23 Ben-Israel, supra n. 15, at 346; Ben-Israel, , “The Purpose and Place of the Labor Court in the Israeli Legal System”, (1993) HaPraklit (Anniv. Vol.) 431, at 436–442.Google Scholar

24 (1970) 25 L.S.I. 11, 12.

25 Cohen v. Zarzevsky, (1962) 16 P.D. 2753; Kenig v. Kupat Holim, (1969) 23 P.D. 627, at 629. A reinstatement remedy is also sometimes available in unlawful discharge cases involving state, municipal and some other public agency employees. Compare State of Israel v. Hozan, (1984) 15 P.D.A. 359 with Landesman v. Port Authority, (1987) 19 P.D.A. 32.

26 Zori Co. v. Ricks, (1973) 4 P.D 477, at 512–14.

27 Zori Co. v. National Labor Court, (1974) 28(i) P.D. 372, at 382–83.

28 (1957) 11 L.S.I. 58, 60.

29 See cases cited at supra n. 5.

30 Zamir, , “The Law of Labour Disputes”, (1974) 9 Is. L.R. 548Google Scholar, at 548, 554, n. 20.

31 For a review of the status of Israeli strike law before the establishment of the labor court and the deteriorating labor relations scene in the 1960's and 1970's, see Schreiber, , “The Development of Judicial Sanctions Against Strikes in Israel: The Labor Court's General Theory (1970–1985)”, in Blanpain, R. & Weiss, M., eds., The Changing Face of Labour Law and Industrial Relations — Liber Amicorum for Clyde W. Summers, (1993) 313–21Google Scholar.

32 (1957) 11 L.S.I, at 61; see text at supra n. 4.

33 (1970) 25 L.S.I. at 12.

34 See Schreiber, supra n. 31, at 313–17, 321, 323. Striking employees also enjoyed a rather broad immunity against suits based on tort liability. Id., at 315, 317.

35 See, e.g., Hebrew Univ. v. Lecturers' Union, (1973) 5 P.D.A. 115, at 129–31; Histadrut v. Bank of Israel, (1974) 5 P.D.A. 493, at 502.

36 Workers' Comm. v. El-Al, (1972) 3 P.D.A. 393, at 412; Workers' Comm. v. Israel Wire & Cable Co., (1972) 4 P.D.A 122, at 130–34; Shitreet v. Israel Shipyards, (1972) 4 P.D.A. 337, at 355–56; Lecturers' Union, supra n. 35.

37 Israel Wire & Cable Co., supra n. 36, at 132–33; El-Al, supra n. 36, at 412–13; Ginstler v. State of Israel, (1976) 8 P.D.A. 3, at 16, 24–25, 32.

38 Israel Wire & Cable Co., supra n. 36, at 132–33; El-Al, supra n. 36, at 412–13. The National Labor Court, however, did permit individual breach of contract actions against strikers in those “exceptional” cases where strike activity also took place on the individual level of strike liability — situations which might arise in an “unprotected” strike in the public sector or in certain “political” strikes. But actions seeking damages or disciplinary fines in such cases have been exceedingly rare. See Workers' Comm. v. Dead Sea Works, (1977) 8 P.D.A 421, at 450; Schreiber, supra n. 31, at 328–32.

39 One such exception can be found in the early writings of Prof. F. Raday. See, e.g., Raday, , “The Unprotected Strike”, (1977) 12 Is. L.R. 86CrossRefGoogle Scholar; Raday, F., “A Cooling-Off Period for Israel”, (1971) 6 Is. L. R. 569.Google Scholar

40 Zori Co. v. National Labor Court, supra n. 27, at 383.

41 The following is a partial list of the cases in which the Supreme Court, sitting as the High Court of Justice, set aside, in part or totally, the judgments of the National Labor Court: Nevo v. National Labor Court, (1990) 44(iv) P.D. 749; El-Al v. National Labor Court, (1989) 43(i) P.D. 60; Shalfi v. National Labor Court, (1988) 42(iii) P.D. 148; Metzger v. National Labor Court, (1987) 41(iii) P.D. 353; State of Israel v. National Labor Court, (1987) 41(ii) P.D. 639; Milfelder v. National Labor Court, (1987) 41(ii) P.D. 210; Histadrut v. National Labor Court, (1985) 39(iii) P.D. 13; Hetley v. National Labor Court, (1983) 37(iv) P.D. 645; Nahiyas v. National Labor Court, (1983) 37(ii) P.D. 109; Tal v. National Labor Court, (1983) 37(ii) P.D. 12; Baniel v. National Labor Court, (1981) 35(ii) P.D. 694; Gingold v. National Labor Court, (1981) 35(ii) P.D. 649; Public Transport Service BeerSheva v. National Labor Court, (1981) 35(i) P.D. 828; Shemen Mfg. Co. v. National Labor Court, (1980) 34(ii) P.D. 75; Histadrut v. National Labor Court, supra a. 16; Eleo Co. v. National Labor Court, (1977) 31 (ii) P.D. 197; Salman v. National Labor Court, (1976) 30(i) P.D. 496; Zori v. National Labor Court, supra n. 27; Al-Kurdi v. National Labor Court, (1972) 26(ii) P.D. 66.

42 Zori, supra n. 27, at 383. See also Ports Authority v. National Labor Court, supra n. 19, at 152–58 (though reaching a different result than the labor court, the Supreme Court assumed the soundness of the labor court's collective notion of strike activity without examining its underlying tenets).

43 (1957) 11 L.S.I, at 61.

44 Schreiber, supra n. 31, at 324, n. 36 (collecting early cases). See, especially, El-Al, supra n. 36, at 412–13.

45 In Zori, supra n. 27, Justice Sussmann noted that section 3 of the Contract (Remedies) Law might be inapplicable in a collective action against a striking labor organization because “the organization's duty is not an obligation ‘to perform personal work or personal service’”, at 383.

46 See cases cited at supra n. 15.

47 59 Divrei HaKnesse 546 (Dec. 15, 1970); Justice Comm. Minutes, Feb. 2, 1970, at 13, 15 (at C/201, State Archives, Jerusalem).

48 Justice Comm. Minutes, Feb. 2, 1970, pp. 13–15.

49 Arbitration Law, Schedule N and sec. 24(7); (1968) 22 L.S.I. 210, 216, 220. See also Ottolenghi, S., Arbitration Law and Procedure (3rd ed., 1991, in Hebrew) 355–363Google Scholar; Arselan v. Tnuvah, (1984) 15 P.D.A. 191, at 196; Azulai v. Establishment Co., (1984) 16 P.D.A. 133.

50 See Appendix I infra.

51 See cases cited at supra n. 15.

52 (1957) 11 L.S.I, at 61. It was expressly noted in the hearings before the Justice committee that in situations not expressly covered by section 24, damages are available. Minutes, July 13, 1970, pp. 2, 4.

53 The current National Labor Court has applied the principles of the general, substantive law of contracts to collective agreements. See Histadrut v. State of Israel, (1988) 19 P.D.A. 461, at 465; Histadrut v. Tadiran Co., (1990) 22 P.D.A. 173, at 177; Bromine Compounds Co. v. Histadrut, (1991) 23 P.D.A. 456, at 464. The general Contract (Remedies for Breach of Contract) Law would appear to be especially applicable to the obligatory provisions of the collective agreement. Unlike the normative provisions which are legislative in nature, the obligatory clauses form the heart of the bilateral, consensual aspects of the collective agreement. Hence, regular contract principles should apply, unless excluded by the Collective Agreements Law.

54 (1970) 25 L.S.I, at 15.

55 The minutes of the Knesset's Justice Committee proceedings also establish that it was intended that the Contract (Remedies for Breach of Contract) Law should apply generally to collective agreements. Justice Comm. Minutes, July 13, 1970, at 3–6.

56 Egged Cooperative v. Labor Disputes Settlement Act Mediator, (1959) 13 P.D. 48. For a discussion of the “collective” disputes arising under the labor disputes law, see Appendix I, nn. 100 and 102 infra.

57 The labor court has also promulgated procedural rules designating union suits for enforcement of collective agreements as “collective disputes” which are entitled to expeditious handling. But procedural rules distinguishing between individual and collective disputes should have no effect on the availability of specific performance or other types of relief. See supra n. 19.

58 See text at nn. 25–29 supra.

59 See text at nn. 42–46 supra.

60 See text and notes at nn. 14–18 supra.

61 See text and notes at nn. 51–59 supra.

62 See, e.g., Perez v. Biton, (1976) 30(i) P.D. 367, at 373 (although section 3 establishes specific performance as the “first” and “principal” remedy, it goes on to enumerate four exceptions in which specific performance “shall not be granted”).

63 See, e.g., Regby v. Railway General Manager, (1953) 7 P.D. 333, at 334–35.

64 See, e.g., Winkler v. Sudri Constr. Co., (1982) 36(H) P.D. 365, at 378; Perez v. Biton, supra n. 62.

65 (1970) 25 L.S.I, at 12.

66 Secs. 3(3)–(4); (1970) 25 L.S.I, at 12.

67 Ibid., at 15.

68 See Yadin, U., Contracts (Remedies for Breach of Contract) Law (2nd ed., 1979, in Hebrew) 171–72.Google Scholar

69 Yadin, ibid.; Katzir, D., Remedies for Breach of Contract, Vol. I (1991, in Hebrew) 368.Google Scholar

70 Contract (Remedies for Breach of Contract) Law, 25 L.S.I, at 15. See also Divrei HaKnesset, supra n. 47; Katzir, supra n. 69, at 297–302.

71 Katzir, ibid., at 384–88 (collecting cases).

72 The contention that section 22(a) does not add any relief is based in part on the marginal description of section 22 as a provision “saving laws”. But this designation obviously applies to section 22(b) which expressly refers to other laws, and not to section 22(a) which does not refer to any law. See (1970) 25 L.S.I, at 15; Katzir, supra a. 69, at 368.

73 Yadin, supra n. 68.

74 Contract (Remedies for Breach of Contract) Law, sec. 1(a).

75 Katzir, supra n. 69, at 378–79.

76 See cases cited at Appendix I, n. 93 infra.

77 56 Divrei HaKnesset 57 (Nov. 24, 1969).

78 Enforcement on behalf of employees was advocated in certain cases by Avineri, M.K. (56 Divrei HaKnesset at 60)Google Scholar and Halevy, M.K., a former District and Supreme Court Judge (Justice Comm. Minutes, Feb. 2, 1970, pp. 11Google Scholar, 16).

79 See Appendix I infra at nn. 99–105.

80 56 Divrei HaKnesset 355 (Dec. 30, 1969).

81 Justice Comm. Minutes, Feb. 2, 1970, pp. 13–15; July 1, 1970, pp. 8–11; July 13, 1970, pp. 3–6.

82 See text and notes at nn. 47–48 supra.

83 Justice Comm. Minutes, July 1, 1970, at p. 8 (M.K. Ben-Meir, Justice Comm. Chairman); see also Minutes, Feb. 2, 1970, p. 14 (M.K Zadok) (labor relations deriving from a collective agreement “which are a contract by dictate of law”). See also n. 84 infra.

84 Justice Comm. Minutes, June 24, 1970, pp. 7–8; July 1, 1970, pp. 8–11; July 13, 1970, pp. 2–6. Thus, M.K. Klinghoffer, a professor of law at the Hebrew University, stated that it would be “dangerous to state that [the contract remedies law] does not apply to the collective agreement” for it would create a “lacunae” that would “backfire upon the workers”. Collective agreements, he continued, “do not only obligate the worker but also, and perhaps particularly, the employer. It is necessary to guarantee the worker the ability to sue his employer for breach of the collective agreement and thereby realize his rights on the basis of the agreement”. Minutes, July 13, 1970, at 3.

85 Another factor distinguishing the collective agreement from the individual labor contract is that the collective agreement, either expressly or implicitly, often provides for a reinstatement remedy. Thus, both the right to job security and the remedy of reinstatement have been frequently found in Israeli collective agreements. See, e.g., Appendix I, at nn. 94–95 infra. The individual labor contract, on the other hand, ordinarily does not even provide for job security, and it certainly says nothing about reinstatement. It was first in the late 1980's that the National Labor Court introduced a measure of job security into the individual labor contract by holding that the duty to perform a contract in good faith, as set forth in the general contracts law, requires that an employee not be dismissed arbitrarily without any reason whatever. Gan-El v. Ports Authority (1989) 20 P.D.A. 443, at 447–451; Tadiran Ltd. v. Shafir (1987) 18 P.D.A. 264. Since neither the right to job security nor the remedy of reinstatement is ordinarily included by the parties in the individual labor contract, the case for a reinstatement remedy there is substantially weaker than in the collective agreement situation.

To be sure, under prevailing contract doctrine, the parties' agreement to a specific performance remedy “is not binding upon the court. Although weight may be attached to the parties' wishes, it is clearly not conclusive”. Friedmann, , “Good Faith and Remedies for Breach of Contract”, in Beatson, J. & Friedmann, D., eds., Good Faith and Fault in Contract Law (1995) 399Google Scholar, at 402. Commentators have persuasively argued, however, that “much greater weight ought to be accorded to the parties' intention, and that this limitation upon the freedom of contract is too severe”. Ibid.; see also Schwartz, , “The Myth that Promisees Prefer Supracompensatory Remedies; An Analysis of Contracting for Damage Measures” (1990) 100 Yale L.J. 369CrossRefGoogle Scholar, at 387–91, 405–07.

86 See Appendix I infra at nn. 97–98.

87 Zori, supra n. 26, at 513–14.

88 See text at supra nn. 6–13.

89 Tabb, Ami, & Shaal, , Labor Relations in Israel (1961, in Hebrew) 249–54.Google Scholar

90 Zori, supra n. 26, at 491–94.

91 See text at supra n. 38.

92 In sharp contrast to the labor employment exception, other exceptions have been interpreted so as not to interfere with the broad general policy favoring enforcement as a principal and first remedy. This has been especially pronounced in regard to the exception denying specific performance in cases requiring an unreasonable degree of court supervision. The Supreme Court has endorsed the enforcement of construction contracts, by means of court appointed receivers, in circumstances in which such relief would have been denied before the enactment of the 1970 contract remedies law. Katzir, supra n. 69, at 378–80, 473–85. In addition, under the general contracts law of 1973, the courts have discretion to award specific performance in cases in which illegal contracts have been partially performed. Id., at 389–422. Interpreting the labor exception as an absolute bar to enforcement renders employment contracts less enforceable than illegal contracts!

93 See Regby v. Railway General Manager, supra n. 63; Frankel v. American Overseas Food Centers, Inc., (1961) 15 P.D. 87; Yehuda v. Wage Collection Officer, (1963) 17 P.D. 2131, at 2150–52; Kenig v. Kupat Holim, supra n. 25, at 629.

94 Ben-Haim, A., Labor Relations in the Jewish Community of Israel During the Mandate and Until the End of World War II (unpublished M.A. thesis, Heb. U., 1972, in Hebrew) 43Google Scholar; Chushi, , “Industrial Workers, Their Problems and Accomplishments”, in Rosenstein, Z. (ed.), The Histadrut A Collection (1946, in Hebrew) 178–79Google Scholar; Avnieli, B., Labor Problems in Israel (1940, in Hebrew) 107–08Google Scholar, 118–20.

95 Zweig, F., The Israeli Worker (1959) 149–58Google Scholar; Shari, , “The Collective Agreement and its Contenta”, (July 1959) Monthly Rev. of Lab. & Soc. Sec. (hereinafter “Lab. Rev”) 33–34Google Scholar; Sha'al, , “Worker's Rights and Employment Stability”, (Oct. 1958) Lab. Rev., 22–23Google Scholar; “General Collective Agreement Between Agricultural Workers' Union and Farmers Assn.”, (Mar. 1958) Lab. Rev., 21–22; Katz, , “The Diamond Industry and Its General Collective Agreement”, (Feb.-Mar. 1960) Lab. Rev., 14.Google Scholar

96 Zweig, supra n. 95, at 149; see also Ben-Haim, supra n. 94, at 43 (because workers' committees assumed power over dismissals, discharge of tenured workers “became virtually impossible”).

97 Bar-Niv, , “Labor Law” in Zadok, & Ben-Naftali, , eds., Law and Administration in Israel (1971) 489Google Scholar, 501; Zweig, supra n. 95, at 133, 139.

98 Ben-Haim, supra n. 94; Zweig, supra n. 95, at 154–55; J. Tabb and others, Labor Relations in Israel, supra n. 89, at 250–51, 256.

99 Sha'al, supra n. 95, at 22–23.

100 Ibid.; Tabb, supra n. 89, at 304–07. Between April 1957 and March 1958, for example, the labor relations officers dealt with 82 cases under the Settlement of Labor Disputes Law: 17 of these involved terminations of employment. In addition, the labor relations officers dealt with 1,097 “individual” cases: of these 939 involved termination: (May, 1958) Lab. Rev., 9. The conciliation and arbitrations statistics for 1958–59 were roughly the same: (May, 1959) Lab. Rev., 70. For further discussion of the two types of arbitrations conducted by the labor relations officers, see n. 102 infra.

101 There has been no comprehensive study of the conciliation and arbitration services rendered by the labor relations officers of the Ministry of Labor. However, arbitration awards were sometimes reported in the monthly labor review published by the Ministry, in Hebrew. Dismissal cases in which reinstatement was granted can be found in the following issues: Feb. 1954, pp. 18–19; Feb. 1955, 9–13; Oct. 1956, p. 17; Nov. 1957, p. 27; Jan. 1960, p. 21; Apr. 1961, p. 19; see also Jan. 1958, p. 20. Cases in which reinstatement was denied can be found in the following issues: Aug. 1953, pp. 13–14; Mar. 1956, pp. 20–21; June 1957, p. 21; Nov. 1963, p. 399.

102 After the enactment of the 1957 Labor Disputes Settlement Law, there were two categories of claims in which the Ministry would provide arbitration: “collective” disputes under the Labor Disputes Law and “individual” employee claims under the regular arbitration laws. Where a discharge case was presented as a collective dispute under the Labor Disputes Law, it had to be brought by the union representing the majority of employees involved in the dispute: indeed, the majority union was deemed the formal party to the dispute. Settlement of Labor Disputes Law, secs. 2–3, 15–37; 11 L.S.I. 11, at 54–57. The employee was the formal party in individual claims. Nevertheless, the rules promulgated by the Ministry generally required individual employees to present their grievances through either the union to which they belonged, or the union which was party to the collective agreement. If the employee did not belong to any union and there was no governing collective agreement, he could process his grievance himself: (Mar. 1957) Lab. Rev., 14; Sept. 1957, pp. 23–24. An overwhelming majority of dismissal cases were processed as individual claims. See supra n. 100. But with the establishment of the labor court system in 1969, the Ministry ceased to handle individual claims and virtually all discharge cases were brought to the labor courts.

103 Arb. Decision 10/54, reported in (Feb. 1954) Lab. Rev., 18–19.

104 11 L.S.I, at 51.

105 Ray v. Chief Labor Relations Officer, (1964) 18(iii) P.D. 109.

106 See, e.g., Histadrut v. National Labor Court, supra n. 16, at 824; Regby v. Railway General Manager, supra n. 63, at 334; Kenig v. Kupat Holim, supra n. 25 at 629; see also Tirosh v. Beilinson Medical Center, supra n. 14, at 492.

107 See Chesire, Fifoot, & Furmston, , Law of Contract (12th ed., 1991) 541–547.Google Scholar

108 Cheshire, Fifoot & Furmston, ibid., at 547; see also Treitel, G.H., The Law of Contract (8th ed., 1991) 744–45Google Scholar (the “general rule”—“that a repudiatory breach by either party does not lead to automatic termination, but only gives the injured party an option to rescind the contract” — applies equally to employment contracts).

109 Gunton v. London Borough of Richmond Upon Thames, [1980] 3 All E.R. 577, at 583.

110 Contract (Remedies for Breach of Contract) Law, sec. 7, 25 L.S.I. 12–13.

111 See text and notes at supra nn. 60–85.