Office of the Commissioner Prof. Eliezer Rivlin
Assistant to the President of the Supreme Court (Retired)
3 Kislev 5779
11 November 2018
Our ref: National Labor/ 348/18
Summary of Decision
Adjudication during a strike: On the absence of the National Labor Court’s authority to conduct mediation or compromise procedures in proceedings being heard by the Court in a collective dispute
Abstract: the Law does not authorize the National Labor Court to conduct mediation or compromise proceedings in a collective dispute being heard by the Court.
The Court is also not authorized not to uphold the basic rules of proceedings and the rules of natural justice – including the need for the presence of all litigants at every hearing, ensuring that the proceedings are public subject to exceptions indicated in the Law, and the obligation to record a protocol.
The procedures adopted by the Court could cause damage to the Labor Court’s institutional authority because they involved switching between the Courtroom and a “meeting room”.
The complaint was found to be justified in terms of the system, and the Commissioner commented that the legislature should address the questions raised by the complaint, while maintaining the distinction between mediation and adjudication.
The nature of adjudication should also be maintained during strikes.
- Workers declared a collective work dispute. The complainant is the CEO of a company that is not a party to the proceedings on the matter being conducted in the National Labor Court. However, in his words, the company has a great interest in the file “by virtue of its dealings with policy in the labor market” – and therefore, in the company’s name, he was present at the hearings in the Court.
- According to the complainant, after the workers began their strike, the National Court issued an injunction ordering them to return to work. The injunction was ignored, and therefore the Court issued subpoenas to the heads of the workers’ committees. But they then “went underground” and refused to appear before the Court. The employers’ managements filed with the Court an application to charge the striking workers with contempt of court, and an urgent hearing of the petition was set.
- According to the complainant, the committee heads appeared at the hearing but instead of deliberating on the petition, “the judges held a discussion on ‘hot updates’ from the field”. Later they left for a break, and summoned the parties to “a consultation in the Judge’s room which took place without a protocol”. He adds that “the committee heads who are deemed to be the respondents in the case were not summoned to the room”.
- A few days later, according to the complainant, there was a “confidential discussion”, also in the Judge’s office. A hearing on the case was set for 18:00 on the same day, but a few minutes after that time, one of the legal aids came to the Courtroom and invited the chairman of the Histadrut and his counsel, the president of the Industrialists’ Association, the representative of the State Attorney, the representatives of the committees and a representative of each workplace to the Judge’s room. The public hearing of the case in the Courtroom only began at 21:00; until then, throughout that time, he says that a lot of people waited in the Courtroom, while a “discussion” was taking place in the Judge’s office, “and it’s not clear how it was conducted, without a protocol and without the presence of all the parties involved in the proceedings.”
- According to the complainant, at the start of the public hearing in the Courtroom, the Judge who was the head of the panel turned to the parties who had attended the meeting in his room, and asked them if they had anything to add. In response, they expressed their willingness to start talks under the Court’s supervision, timetables were submitted, and with that the hearing ended.
- In the opinion of the complainant, the conduct of the Court deviated from accepted legal procedures and the proper behavior of judges. He says that the Court held a mediation procedure which was defective since it took place in front of the same entity, the Court, that was supposed to determine the legal questions at the end of the procedure, and that this is even more the case when a mediation procedure totally replaces the legal hearing. The complainant adds that “a situation in which material matters of public importance” are discussed in a closed room without a protocol is improper and in his opinion could even “lead to corruption in the adjudication procedure”.
- The response to the complaint from the panel of judges was given by the Judge who chaired the panel, who stated that since he was head of the panel, the complaint should be addressed to him and not to the whole panel.
- Regarding the second hearing, the Judge explained that he wished to bring the parties involved in the collective labor dispute together, in order to promote a process of negotiation. In his words, the first and main objective, with a threat of a strike in the background, was to bring the parties together to talk, in order to prevent damage “that could cost the Israeli economy millions of shekels”. In his words, these efforts could not take place “in a full courtroom holding dozens of people who were not representatives for the talks”. In addition, the presence of people who brought with them “enormous emotional baggage” would not allow an open discussion of everyone concerned with the dispute.
- The Judge stresses that the encouragement of talks exceeded the formal framework of a Court hearing, and the talks therefore took place in the Court’s “meeting room”. In this case, as he indicates, the parties did indeed manage to reach an understanding, in a discussion that took place in the “meeting room” and they therefore agreed that there was no further purpose in holding the official hearing.
- The Judge adds that the complainant is complaining about a “discussion” that “had nothing to do with the decision on legal issues”, and that the purpose and nature of the discussion (in the meeting room) were to examine how the parties could be brought back to the table for talks, and nothing more. The legal matters were not discussed at the meeting that took place in the meeting room. A discussion of this kind, he writes, is often requested by the parties themselves and “naturally it is customary (there) not to keep a protocol”.
- At the end of his response to the complaint, the Judge remarks that the subject of collective labor disputes has unique features. In his words, the Labor Courts, both regional and national, are constantly working to limit as far as possible the need for a judicial decision – a decision that sometimes is not only unhelpful and does not lead to a solution of the conflict, but even makes it worse.
- Since I found in the Judge’s response no reference to the complainant’s complaints regarding the first hearing, and since it was also not clear from his first response whether all the litigants were present at the talks that took place under the Court’s supervision at the second hearing, I contacted him again and asked him to complete his response to the complaint. I also asked for his reaction to the question of the source of the Court’s authority to act as it did, particularly noting that this is a case of a meeting that took place under the supervision of the same panel that were set to hear the legal case. I also sent a copy of my letter to the Judge to the President of the National Labor Court, Judge Varda Virt-Livneh, so she could consider whether to add her own comments and relate to the principles raised by the complaint.
- Regarding the first hearing, the Judge wrote that it was set for 22:30, in petitions that were filed in the framework of a contempt of court procedure. In this hearing, contrary to previous hearings, the heads and members of the workers’ committees appeared as indicated in the protocol. At this stage he experienced – as he writes – the need to understand the “whole picture”, “to understand whether the breach of the injunctions was ongoing or had stopped.” This fact, so he writes, has significance for the continuation of the hearings on the petitions for contempt. Accordingly the Court was given a report on developments on the ground from representatives of the employing companies, representatives of the Histadrut, heads of the committees and other members (taking account of the different sectors in each employer). At a certain stage, and when it emerged that the workers had returned to work, this hearing was stopped, and there was an encounter in the “meeting room” with the Judges on the panel and the parties involved in the collective talks, who are not exactly the same as the parties to the contempt proceedings. According to an internal record (not a list of names) those present in the meeting room were the representatives of the companies, of the Histadrut, of the State, and chairman of the Industrialists Association. At that meeting they examined ways of continuing the collective talks.
- It appears therefore from the Judge’s additional response, that in the first hearing there was also a session with the panel judges in the meeting room. Not all the parties to the contempt procedure were present at that session.
- To my question about those present at the meeting during the second hearing, the Judge replied that as indicated in the preamble to the protocol of the hearing, and according to the internal record (without a list of names), those present in the meeting rom were the representatives of the companies, the Histadrut and the State. Once again, the Judge’s words indicate that not all the litigants in the case were present at the meeting.
- Regarding the question of the Court’s authority to hold a session with litigants in the meeting room, the Judge referred to one of the reasons for establishing the Labor Court, as presented in the Report of the Committee to Examine the Labor Courts headed by Judge (Retired) Yitzhak Zamir (2005) (hereinafter: the Zamir Committee Report):
“the Labor Court will contribute to improvements in labor relations. If the Court is acceptable to the parties in labor relations, it seems probable that in many cases they will prefer to bring their disputes before it, instead of using the means of a professional struggle. According to the Minister of Labor in another context: the Labor Court opens the way to jurisdiction instead of strikes” (ibid, p. 33).
And on page 44:
“One of the striking deficiencies of the labor relations system in Israel is the absence of effective mechanisms for settling work disputes, at an early stage in the dispute, by means of talks between the parties, determination of disputed facts by an external mechanism, mediation, compromise or arbitration by a third party. In the absence of such mechanisms, the Labor Court has developed ways and tools of settling labor disputes, both individual and collective, not by judicial decision but by way of compromise or mediation. Many of the disputes brought before the Labor Court end in this way by consent between the parties.”
- This is the reality, but of course the question is whether it is also the law.
- The Judge added that it is usual for discussions relating to “economic talks” which is the background to the strike (the session in the meeting room – E.R.) to take place before one of the judges (usually the head of the panel) and not before the whole panel (although there may be cases where they act differently). In his words, the arguments used for a judicial decision of the type discussed in the present case – that is, whether to allow a strike or not, or with respect to petitions pursuant to the contempt of court order, are not discussed when there is an attempt to “push the parties” to a continuation of talks in order to finalize an economic agreement, and the discussion mainly turns on the outline (timetables, people from each party who will participate in talks, and so on) for continuing the talks in order to finalize the economic agreement, as shown by the decision given at the second hearing. Therefore, in the Judge’s opinion, there is nothing to prevent a meeting between the parties to promote talks taking place before the same judge (or panel) who is set to hear the case on the actual proceedings. Such meetings take place in an “office” (actually a meeting room, due to the number of participants), since it is not possible to promote talks in a Courtroom in the presence of dozens of workers, and sometimes there is a noisy demonstration of workers “under the Courtroom windows”, and also in the presence of many people “who are not relevant to the collective talks”.
- President Varda Virt-Livneh responded to my inquiry, as president of the system, and spoke about the policy that has been adopted by Labor Courts for many years. This policy is accepted, she states, by all parties to labor disputes, and particularly by the central parties in the big disputes – workers’ organizations, employers’ organizations, and the State.
- The President writes that the central and most important function of the Labor Courts in settling collective labor disputes, is by way of helping the partners in the labor relations to reach a process of talking and negotiation and by way of a judgement that gives practical implementation to the theory of balance between the interests of all partners in the labor relations and the public. The Labor Courts discuss many collective disputes, some of the most complex and difficult in the economy, disputes with wide and even far-reaching implications for the whole economy.
- In this framework, she writes, the Labor Courts discuss disputes between workers’ organizations and employers or employers’ organizations, including on the matter of the existence, application, interpretation, implementation or breach of a collective agreement or collective arrangement; the right to strike and how to exercise it; the existence of collective talks in good faith; and matters relating to the initial organization in the workplace and its protection.
- The President points out that a strike is the most effective tool available to workers and the main tool available to workers’ organizations, on collective level, to make gains from employers.
- According to her, the question arises of whether the Court’s role is to serve as “a classical court” which only tries and rules on legal cases, or should it also be involved in settling disputes. The President believes that the reply to this question is clear: the National Court sees itself as a central element in labor relations, and therefore seeks to persuade the parties to work relations to adopt a policy of cooperation and reach a situation of reduction in strikes. The Court sees its function in disputes involving strikes – to bring the parties back to the negotiating table, to encourage conflict resolution by means of collective talks, to prevent huge damage to a business or to the whole economy, and to determine norms for managing professional struggles. This perception of the Labor Courts at the level of collective relations as “the promotion of talking instead of striking”, a perception that the parties in labor relations also wish to adopt when they come to the Court, means that over the years thousands of strike days have been avoided, with outcomes to the satisfaction of all parties.
- The President stressed that in many cases the parties to the dispute also want the Court’s support for resolving the dispute, and they ask the Court for this, usually by way of Court supervision and with reporting by the parties, from time to time, on the progress of talks. In this way, she points out, many strike days are avoided and there is double benefit, to the parties in the conflict itself, and to the public as a whole. She writes that the Court, with great responsibility, does not permit strikes for the sake of strikes, and to the extent possible, by means of close supervision of conflicts, enables the parties to achieve results that satisfy all of them, while avoiding harm to the public and the economy. In this way, as set out by the Court over the years, she says that thousands of days of strikes, sanctions and so on have been prevent, and no less important, the results that were intended from the start by the right to strike are achieved.
- The President referred me also to General Collective Dispute (GCD) (National) 8375-11-11 The Coordination Bureau of Economic Organizations –New General Federation of Labor (Histadrut) (10.1.12) which states: “The policy of the Labor Court is to encourage the parties to a dispute to talk, to hold negotiations and to settle the dispute by consent in peaceful ways. This is before the Court comes to decide on the nature of the strike, its legitimacy, its permissibility, or on the issue of injunctions to limit it. Thus in general, and especially in the case of a mega-dispute with broad consequences for the whole economy which results in a mega-strike, as in the case before us.”
- Thus for example she states that, also in a case concerning a strike by building inspectors (GCD 37071-06-18) which she says is currently being conducted in the National Court, regarding its position in the case, the State announced that “…the State is willing to accept that, at the same time as issuing an injunction against the strike, the Court should offer its support for talks between the parties, with regular updates to the Honorable Court…”.
- Finally, the President quoted the Supervisor of Salaries in the Ministry of Finance, Mr. Koby Bar Natan, who by virtue of his position is a central party in disputes relating to strikes, from an interview he gave to The Marker newspaper on 9 September 2018:
- Do you trust the Labor Courts? This is a new perception in the Supervisor of Salaries Division. Previous supervisors claimed that they were biased in favor of the Histadrut, and gave the Government hell.
- “They give both parties hell. That’s fine – that’s their job. I haven’t come across any serious wrong they’ve done us. It’s enough to see how many times the Histadrut comes out of the Courts unhappy to understand that they are relatively balanced. As long as there are no other mechanisms, and I’m not sure that they are needed, I see them as a conciliatory and balancing factor, and they should have more tools to resolve problems. Today the Labor Courts hardly deal with the nature of the dispute, only with the legal aspect, and that’s a pity.”
- “… The Labor Courts should work for material compromise, instead of only dealing with the technical side. That would really help to resolve labor disputes. Compromise is a tradition left behind by the former President of the National Court Steve Adler, and he should be praised for that.”
- From these words we should conclude, in the view of the President, that the State also believes that this is the best tool that currently exists in the Israeli economy for preventing, as far as possible, strikes that are likely to cause enormous financial damage of billions of shekels.
- After these words, the President again addressed me on the manner of the public nature of the hearing.
- As she says, “Section 3 of Basic Law: The Judiciary enshrines the principle of the public nature of hearings by stating that ‘The Court’s proceedings will be held in public, unless otherwise determined in Law or if the Court instructs otherwise pursuant to the Law’.” The end of Section 3 shows that the principle of holding proceedings in public, like other basic principles, is not absolute but relative, and it could give way before other important rights and interests. And indeed, the legislature has determined a number of concrete exceptions to the principle of public proceedings which authorize the Court to conduct proceedings in camera. In Section 68 of the Courts Law, 5744-1984 (hereinafter: The Courts Law) the legislature defines the principle whereby “The Court shall conduct proceedings in public” and at the same time defines a number of exceptions, one of which is given in Section 68(c) of The Courts Law, which states: “(c) In applications for intermediate injunctions, temporary injunctions and other intermediate decisions, the Court may conduct the proceedings in camera”. With respect to this authority it is stated that in intermediate hearings, “in the opinion of the legislature, the public principle is less important than in primary proceedings, since as stated, it has authorized the Court to hold such proceedings in camera, with no specific reason” (from Other Criminal Appeal (Civil Case) 80192/06 Ha’aretz Newspaper Publishers Ltd. v. Tel Aviv District Attorney Taxation and Economy (29.8.07)). It is not superfluous to state that Section 68(d) of the Courts Law states that “If the Court decides to hold a hearing in camera, it may permit a person or types of person to be present at the whole hearing or part thereof and may so order also in a hearing pursuant to Subsection (c2), for reasons to be recorded”. This implies that where the hearing is held in camera, the Court is granted flexibility to give an individual or general permit – i.e. to types of person – to be present at part or all of the proceedings. The legislature applied the provisions of Section 68 of the Courts Law, in their various alternatives, to the Labor Courts system. Thus Section 39 of the Labor Courts Law, 5729-1969 states: “Sections 68 to 81, 82(b) and 82(a) of the Courts Law and the regulations instituted pursuant to Section 73 of the aforesaid Law, shall apply to the Court mutatis mutanda, but the power of the President of the Supreme Court pursuant to the aforesaid sections, excluding the power pursuant to Section 72, shall be vested in the President of the National Court, and on the matter of Section 77 of that Law, the Court shall only be authorized to hear claims in the field of its specific powers”. Combining Section 39 of the Labor Court Law and Section 68(c) of the Courts Law therefore indicates that the Labor Court is qualified to hold proceedings on an application for temporary injunctions in camera. Section 39 of the Labor Court Law indicates that the provisions of Section 68 of the Courts Law applies to the Labor Courts system “mutatis mutanda”, and in that way the legislature recognized the need to adapt the general principles for the special nature of the Labor Courts that deal with labor relations, with all that entails. Collective disputes may be legal (that is, the exercise of an existing right in law) or economic (that is the creation of a new right in the framework of collective bargaining). Legal collective disputes do not create the right to strike, since jurisdiction is preferable to striking, and it is determined on the basis of legal principles in a public hearing. However, a collective economic dispute could create the right to strike. In a collective economic dispute the reliefs requested from the Court are usually a primary and temporary injunction against the strike, for reasons such as the possibility for further collective talks, proportionality, damage to the public interest, and so forth. The hearings on collective disputes of this kind start with discussions of temporary relief, where every decision is bounded by an allocated time, and the hearing on the application for primary relief only takes place if the parties are unable to reach an agreed solution at the stage of temporary injunctions. It is emphasized that a legal hearing on an application for primary relief, if requested, only takes place in public. In other words, the broad framework for judicial discretion vested in a judicial instance enables it to consider the question of timing in the decision regarding the primary relief, and it may also postpone the date of the decision in order to examine the option of settling the dispute by consent. This is because of the special characteristics of collective disputes and the recognition of the contribution made by the formalization of consensual arrangements to the long term stability of ongoing labor relations. However, and in view of the immediacy of the expected strike, the Court may be required to examine whether it should issue a temporary injunction against the strike. Such an examination could be spread over a number of sessions, and examine inter alia the feasibility of settling the economic collective dispute by consent, taking into account the distance between the parties in talks and the possibility of reducing the gap. This type of hearing is done with the agreement of the parties who wish to settle the economic dispute, since they recognize that a narrow legal decision on the legality of the strike, while leaving the embers of the collective economic dispute smoldering, could damage the tissue of proper work relations. Therefore, in this overall framework, the Court also examines, together with the parties and at their request, whether the hearing regarding the strike and all its aspects may be postponed based on an agreed arrangement of a return to talks, and the reminders are intended to bring the parties back to the track of economic negotiations in which the issues are not subject to decision by the Court. The option of settling the dispute by consent, with all that involves, is examined in the overall framework of a hearing on an application for a temporary injunction against the strike, where the legal decision on the primary relief to prevent the strike is postponed to a later date. This overall framework falls within the definition of the powers of the Court in Section 68(c) of the Courts Law – which applies by virtue of Section 39 of the Labor Courts Law – or at least within the definition of “mutatis mutanda” in view of the special nature of collective disputes and the value of resolving them. Therefore there is an anchor in law to the existence of the authority to hold all or some of such hearings in camera. We stress that the question of which parts to hold in camera and which not is open to judicial discretion depending on the circumstances. I wish to stress again that after exhausting the discussion of temporary reliefs, and if the need arises to consider the primary relief requested – then this legal discussion is conducted in public, as required by the principle of the public hearing.”
- These are the President’s words.
- And thus to my conclusions – the explanations of the Judge and the President of the nature and complexity of labor disputes and the damage they could cause the economy are important. There is no disagreement over the benefit of a quick and effective settlement of disputes. There is no disagreement that everything should be done in order to cool labor disputes and bring the parties to the negotiating table in order to prevent damaging strikes – but all these are subject to the existing legal framework.
- Existing law raises three questions: one, what is the source in law that authorizes the Court to act by way of mediation, managing negotiations with the parties to the labor dispute, or compromise? Two, how are the fundamental rules of proceedings and the rules of natural justice to be preserved – including the need for the presence of the litigants at every hearing, ensuring that the hearing is public, and the obligation to record a protocol? Three, is it not damaging to the institutional authority of the Labor Court to jump between the Courtroom and a “meeting room”?
- The principle of legality is a fundamental rule.
- Certainly this is the case with respect to the authority of all those sitting in judgment. The law is the source of the authority of Courts and they are only authorized to act within its limits.
- Section 1 of Basic Law: Judging gives jurisdiction to the Courts of Law specified therein and to the Courts “and all as determined in the Law” (Section 1(b)).
- The authority of the Labor Court is defined in the Labor Court Law, 5729-1969. As for the National Labor Court, apart from its authority to hear appeals against the rulings of the regional Court, Section 25 of the Law grants it special power to hear “(1) Claims between those who may be parties to a general collective agreement, within the meaning of the Collective Agreements Law with respect to its existence, application, interpretation, execution or breach, or other collective arrangement or any other matter arising therefrom, or on the matter of the application, interpretation, execution or breach of any law; (2) Claims between a workers’ organization and another workers’ organization and claims between an employers’ organization and another employers’ organization, and all if such claims arise from matters of labor relations”.
- The Law does not authorize the Court to conduct, in the framework of a legal hearing, mediation procedures or meetings that are not public (when it is a matter of cases that are taking place by virtue of the law in camera).
- And note: in this case we are not talking about pre-trial procedures, which are regulated by law, with their restrictions. These pre-trial procedures take place before someone sitting as a judge, with all that implies, and the hearing takes place in the presence of all the litigants. Here we are not dealing with such procedures.
- Indeed, the Court may refer the parties to mediation, within the meaning of Section 79(c) of the Courts Law [Combined version], 5744-1984, which also applies to the Labor Courts (section 39 of the Labor Court Law, 5729-1969). Such a mediation process, as indicated in the Law, is not conducted before the Court hearing the case. In the framework of mediation, the mediator is authorized inter alia to talk with any of the litigants, together or separately, and with anyone connected to the dispute. Anything stated in the course of mediation shall not serve as evidence in civil legal proceedings and in any case is not revealed to the Judge. On this matter, see the Labor Court Regulations (Conciliation), 5753-1993. Regulation 6(2) stipulates: “The mediator may talk to the litigants, together or separately, and with the consent of the litigant – without his lawyer, and also with anyone connected to the dispute, including the lawyer of a litigant separately”. These provisions do not authorize the Court itself to act as a mediator. For the purpose of these regulations, the mediator is an external conciliator (mediator).
- Therefore no source was found for the authority that permits a National Court Judge to serve as mediator and at the same time to sit as Judge pursuant to the Law. The Court cannot hear each of the parties separately and the panel ruling on the legal case may not be exposed to things said in the presence of the mediator. It appears that the Labor Court, with proper and good intent, is often confusing two areas. Such confusion naturally detracts from the moral institutional authority and from the conscious purity vested in a Judge, when he leaves the “meeting room” and goes to the Courtroom; when he is required to order the parties and instruct them how to behave. Blurring the dividing line could lead to contempt of court and to disregard by the parties of injunctions it issues. It blurs the seriousness of “disregard” by the parties wishing to ignore an injunction (as happened in this case at the start of the proceedings). The flexible conduct in the “meeting room” “spills over” into the Courtroom – and the reins are loosened.
- Indeed, the legislator was aware of the need to regulate labor relations at times of crisis, also not by way of judicial decision, and therefore introduced special arrangements such as the provision of Section 7(1) of the Resolution of Labor Disputes Law 5717-1957. This provision grants authority to the chief supervisor of labor relations, to whom the parties to the dispute may apply, “to hold meetings with the parties, together or separately, to hear their arguments and their suggestions for settling the dispute, and bring his own suggestions to the matter”. The Labor Court itself refers parties to (external) mediation and compromise proceedings.
- In the present case, as I have learned, in the National Labor Court there is a practice, or “tradition”, of conducting mediation proceedings before the Judge or the Panel that are themselves supposed to decide on the case. But it is very doubtful if this practice can authorize what the legislature did not permit. The powers of the National Court are defined in the Law. The report of the Zamir Committee that the President of the Court cites in her written response also describes the existing situation, without referring to the underlying normative and legal aspects.
- Not only that – we are not just faced with a problem of “formal” authority. The practice described in this complaint blurs the boundaries between the main role of the Judge, to decide on the dispute presented to him, and to instruct the parties, or any of them, and the actions of a mediator or conciliator. The mediator is sometimes a “babysitter” for a dispute, demonstrates welcome and beneficial skills of reconciliation, and holds ex parte meetings on a routine basis. Not so the Judge. The President’s statement that the Court is not “a classic court” correctly describes the existing situation but does not negate the difficulties expressed in it. For example, it is not by chance that the Mediation Regulations forbid the mediator to give evidence in Court on what happened during mediation. The legislature, and in this case a secondary legislature, wished to mark a clear and impassable border between what happens before a mediator and proceedings taking place in the Court, between the “meeting room” and the Courtroom. The legal arrangement shows that the Judge cannot himself switch from the Courtroom to the “meeting room” – or vice versa.
- Where a Court action takes place in a closed room, with no protocol, this may cause harm to public trust. An impression might be created that the Court is giving its protection to hidden agreements between the parties, that are not being examined by daylight (or by neon light in the Courtroom). For someone sitting in judgment it will be difficult to maintain the presumption of objectivity, after he tries to mediate the body of the dispute and after he meets with some of the parties to the case and not with all of them (as happened in this case at the meeting in the “meeting room”).
- In cases where talks that are held under the supervision and with the participation of the Court are not successful, the Judge conducts a formal hearing in order to rule on the law. Then the question could arise, what happens to the information that the parties gave “not for the protocol” (as happened here) or to things that the Judge himself said during the talks. This difficulty could require moving the whole legal hearing to a different panel of judges who did not participate in the mediation procedure.
- As for the protocol –the opening of the protocol of the second hearing states as follows: “Note: a discussion was held in the Office in the presence of the representatives and counsel of [companies], the government and the Histadrut.” That is all. It therefore appears that the members of the committees who were summoned that day to a hearing on the contempt of court proceedings, were not including in the list of those present at the talks in the Office. In any case, nobody disputes that they were not all present.
- The discussion lasted several hours, with the participation of the Judge himself, and nothing of what happened there is expressed in the protocol.
- A discussion that takes place in these circumstances in the Office or in a “meeting room” of the Court also contradicts the principle of a public hearing. According to Section 3 of the Basic Law: The Judiciary: “The Court shall deliberate in public unless otherwise determined in the Law or if the Court instructs otherwise pursuant to the Law”.
- According to the President, the Court is authorized, in intermediate proceedings, to decide to conduct the proceedings in camera. I was not referred to such a decision given by the Court in this matter. I also recall that the first hearing set for the Court was on a petition pursuant to the contempt of court order and not for a temporary injunction. The session in the “meeting room” was also for the purpose of mediation and not to examine the question of the temporary injunction. Therefore there is no explanation of the session in camera without the presence of the parties who had attended for the legal procedure due to take place that day.
- In any case, holding a discussion in camera is an exceptional step that should be kept to a minimum.
- I have already dealt with the authority of the Court to act as mediator – on this matter, see the summary of Decision 187/14 “Mediation proceedings before a Judge in the Court of Family Matters”, of 23.7.14, which can be consulted on the internet site of the Commission. There I wrote: “As the former Commissioner, Her Honor Judge (Ret’d) Tova Strassberg-Cohen, noted: “We must very clearly distinguish between legal proceedings taking place in Court and a mediation procedure, taking place outside it. There are material differences between these two: different purpose, different characteristics, different way of conducting, and different powers granted within each framework” (Opinion 9/07 “Is the Court authorized to held a separate meeting with litigants as part of an attempt to settle a dispute by consent?”)… According to the existing legal situation, mediation is a business whose place is outside the court, and the court cannot serve as “mediator” in disputes brought before it. On this matter, if there is no explicit authorization in the Law, the consent of the parties is not helpful and cannot grant the Court powers that are not granted to it by the Law. As stated, the mediation process is different in nature from the judicial process. Conduct that is permitted to a mediator is forbidden to a judge. Blurring these two areas could harm the image of the judicial system and cause it long term damage.”
- In that decision I also referred to the verdict given by Her Honor Judge A. Procaccia in High Court 8638/03 (Sima Amir v. Great Rabbinical Court in Jerusalem, verdict 61(1) 259) which states, in passing, that involvement of the Court in mediation could blur the boundaries between the Court and mediation as an alternative to the Court, and in Judge Procaccia’s words: “We must guard against blurring the boundary between national judicial systems and alternative decision systems that are built on consent between the parties, in order to maintain the correctness of the work of all arms of the judicial system, and public trust in how its powers to decide are used” (paragraph 28 of the verdict).
- The matter in the present case, mediation proceedings – negotiations under the supervision of the National Labor Court in collective disputes – has already been addressed by the Commission. In 2008 the Commission heard a complaint (our number 1140/07) that was filed by the chairman of the teachers’ organization, regarding deliberations about a strike in the education system. In that case the complaint focused on a hearing that took place in the office of the President, Judge (ret’d) Steve Adler, without counsel for the parties, in an attempt to reach an arrangement. The complaint alleged that the meetings in the office were held in a way that blurred the boundaries between formal and informal deliberations. The substance of the complaint was in fact rejected, but in her decision, the then Commissioner Judge (ret’d) Tova Strassberg-Cohen commented: “In order to avoid misunderstandings and blurring of the boundaries between formal legal proceedings and the Court’s involvement in assisting the parties to the dispute to settle by consent, and in order to avoid a mistaken impression – even if subjective – held by anyone involved in the procedure, it is proper that implementation of the aforesaid policy should be reviewed by the Court, regarding the nature of the procedure, how to conduct it, the role of the Court in it, the identity of the participants, and its limits.”
- After more than a decade since those words were written, we have not found in the responses that we received any reference to regulation of the matter in which this matter is handled in the National Labor Court. The legislature has apparently not been asked to assist in this matter.
- As stated, there is no dispute regarding the important role of the National Labor Court with respect to resolving collective labor disputes in the Israeli economy. “Jurisdiction instead of striking” and “mediation instead of striking” are desirable and beneficial procedures. But “jurisdiction” must not be confused with “mediation”. This is ordered by the Law, this is instructed by rulings, and this is required to preserve the Court’s institutional authority. The parties to the labor dispute must distinguish between their obligation to obey Court orders and the absence of a similar obligation to yield to lobbying.
- It is noted that in High Court case 9135/07 Gidron v. the Prime Minister et al the High Court, in a footnote, did refer to the role of the Court to assist in disputes, if the parties authorize it to do so, but the fact of the Court’s authority to take an active part in negotiations between the parties was not alleged and was not at the heart of the petition in that case.
- In parentheses it is noted that we also found it distasteful that in spite of the lengthy waiting time imposed on the complainant and the other litigants in the Courtroom, nobody bothered to inform them when the hearing that was supposed to start at 18:00 would in fact begin.
- As stated, this is a complex subject. It touches on questions of conduct, as well as questions of the status, source of authority and function of the National Labor Court.
- The legislature should address the questions raised by the complaint, including the need to change its original approach, that designated the Commissioner for Pay (and not the Court) to handle mediation. If it decides to do so it must, of course, maintain the distinction between mediation and jurisdiction. The character of jurisdiction should be maintained during strikes as well.
- In all these circumstances the complaint is found to be justified in terms of the system.
- However, there is no reason to demand an accounting from the Judges in the panel in the present case, who acted according to accepted practice in the National Labor Court. The complaint to the extent that it is aimed at them is therefore rejected.
Commissioner for Public Complaints against Judges