No CrossRef data available.
Article contents
A New Dimension in Collective Agreements*
Published online by Cambridge University Press: 12 February 2016
Extract
From the late 19th century on, a series of social and economic changes have altered the system of labour relations. The transition of bargaining over terms of employment, from the individual to the collective sphere, was the culmination of the historical stages of development. Changes in labour relations have always been, and remain dynamic. Therefore, collective labour law, like the industrial relations system itself, is constantly taking new steps to formulate up-to-date patterns of thought and behaviour. Hence, the legal system finds it difficult to dictate firm policies, and can only try to catch up with the development by post factum legislation and theorization, which can set but a broad and flexible framework.
The collective agreement is presented in this study as a universal phenomenon, resulting from the historical stages of development in labour relations. These stages have led to the crystallization of the collective agreement as it is known today, and to the formulation of its distinctive traits.
- Type
- Articles
- Information
- Copyright
- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1976
References
1 This is conditional on the facts that the legal system reached the second stage of the historical developments. On those developments see Chapter II below.
2 The propositions and the significance of this accepted model is discussed further injra in Chapter III.
3 Collective Agreements Law, 1957, 11 L.S.I. 58Google Scholar. English translation also appears in Legislative Series, 1957 I.L. Isr. 2.
4 For the fact that the collective agreement consists of several groups of normative provisions see infra Chapter IV.
5 This can be illustrated as follows: Just as a law may be ius cogens or ius dispositivum, and therefore carry different authority, this does not affect the assumption that in either case we are dealing with an act of legislation. So, too, in the case of the normative provisions of a collective agreement. They too can be compulsory or otherwise and in neither case can that fact in itself change the normative essence of those provisions.
6 Collective Agreements Law, 1957, sec. 1: A collective agreement is an agreement between an employer or employers' organization, made and submitted for registration under this law, concerning all or any of the following matters: the engagement of employees and the termination of employment, terms of employment, labour relations and the rights and obligations of the organizations which are parties to the agreement (emphasis added).
7 Bank Otzar LeHayal Ltd. v. Clerks' Union Centre et al. (1971) 2 P.D.A. 260 at 267; Committee of Shinua Foremen, Ashdod Port v. The Ports Authority (1971) 3 P.D.A. 63 at 74: Committee of Shinua Foremen, Ashdod Port v. The Ports Authority (1972) 3 P.D.A. 225 at 233 and 242; Committee of Direct Maintenance Workers at El Al et al. v. El Al Ltd. (1972) 3 P.D.A. 393 at 413; The Histadrut et al. v. Organization of Diamond Industries Owners in Israel et al. (1972) 3 P.D.A. 378 at 383 (Hereafter referred to as the Diamonds case); “Zori” Pharmaceutics and Chemical Industrial Co. Ltd. et al. v. Dr. Zvi Ricks (1973) 4 P.D.A. 477 at 513; State of Israel v. Wilhelm Rosenblat (1973) 5 P.D.A. 42 at 48; University of Tel Aviv et al. v. Organization of Academic Staff Workers at the University of Tel Aviv et al. (1973) 5 P.D.A. 85 at 100; Moshe Lustman v. Yosef Perl (1974) 5 P.D.A. 184 at 192; State of Israel v. Organization of Handassa'im and Certified Technicians (1974) 5 P.D.A. 197 at 210; J.N.F. v. Yosef Raveh (1974) 5 P.D.A. 337 at 340.
8 Durand, P., Traité de Droit du Travail (Paris, 1956) §191, p. 532Google Scholar; and in a similar vein: Despax, M., Traité de Droit du Travail (Paris, 1966) 42 at p. 62.Google Scholar
9 Art. L. 132–1. La convention collective de travail est un accord relatif aux conditions de travail et aux garanties sociales qui est conclu entre: D'une part, une ou plusieurs organisations syndicales de travailleurs reconnues les plus représentatives au plan national conformément à l'article L. 133—2 du présent Code ou qui sont affiliées aux dites organisations ou qui ont fait la preuve de leur représentativité dans le champ d'application professionnel ou territorial de la convention collective. D'autre part, une ou plusieurs organisations syndicales d'employeurs au tout autre groupement d'employeurs ou un ou plusieurs employeurs pris individuellement.
10 Art. L. 132–10. Sont soumis aux obligations de la convention collective tous ceux qui l'ont signée à titre personnel ainsi que ceux qui sont ou deviennent membres des organisations signataires. Sont également soumis aux dites obligations dans les conditions définies à l'article L. 132–9, les organisations adhérentes ainsi que ceux qui sont ou deviennent membres de ces dernières organisations. Lorsque l'employeur est lié par les clauses de la convention collective de travail ces clauses s'appliquent aux contrats de travail conclus avec lui.
11 On the incorporation of contractual and normative provisions in collective agreements see Kahn-Freud, , Labour and the Law (London, 1972) 124–8Google Scholar; Wedderburn, K. W., The Worker and the Law (Great Britain, 2nd ed., 1971) 171–184, 188–197.Google Scholar Reference is to the contractual element—i.e., provisions that regulate the rights and obligations of the parties to a collective agreement—without entering, for the moment, into the question of contractual authority. The same holds good for normative provisions.
12 National Coal Board v. Galley (C.A.) [1958] All E.R. 91, at 97; Cameden Exhibition and Display Ltd. v. Lynott [1965] 3 All E.R. 28 at 31.
13 Tarifvertragsgesetz (T.V.G.), in der Fassung vom 25. August 1969 (BGBI iS. 1323). The official English translation appears in — Legislative Series 1969, ILO-G.F.R. 4. Notification of the consolidated text of the Collective Agreement Act. Dated 25 August 1969 (Bundesgesetzblatt, Part I, 27 August 1969, No. 83, p. 1323) stipulating (English translation):
“1. Content and form of collective agreements.
(i) A collective agreement shall regulate the rights and obligations of the parties and contain certain legal standards, which may make provisions for the subject matter, commencement and termination of employment relationships and for questions concerning the operation of establishments and the legislation governing the constitution of esablishments.”
14 Sec. 4(1) of the same Act gives the normative authority of the legal standards to be discussed further on in this section in connection with Proposition C 1.
15 See Hueck-Nipperdey, , Lehrbuch des Arbeitsrechts, 2Google Scholar. Band, 1. Halfband, (Berlin & Frankfurt, 1967) 239–301.
16 See Durand, op. cit. supra n. 8 at p. 532, n. 2; see also Sinzheimer, Hugo, Der Korporative Arbeitsnormenvertrag, (Leipzig, 1907) 96–110Google Scholar and see Livneh, Ernst, “Hugo Sinzheimer—The Father of German Labour Law” (1975) 10 Is.L.R. 272.Google Scholar
17 See supra Chapter II.
18 Art. L. 132–1 of the French Labour Code. See supra n. 9.
19 Durand, op. cit., at p. 533.
20 Despax, op. cit., at p. 63.
21 See supra n. 13. “3. Binding Nature of Collective Agreements: (i) Members of the parties to a collective agreement and any employer who is himself a party to it shall be bound by the agreement.” (English translation)
22 See, in this connection, Hueck-Nipperdey, op. cit., at pp. 301–303.
23 See Wedderburn, op. cit., at pp. 171–185; Ford Motor Co. Ltd. v. A.E.F. [1969] 2 All E.R., 481; Trade Union and Industrial Relations Act 1974, sec. 18.
24 Report of the Royal Commission on Trade Unions and Employers' Associations, 1965–1968. Cmnd. 3623 (London, 1968) para. 470.
25 The theory is explained by Kelsen, in General Theory of Law and State (translated by Wedberg, Anders, New York, 1961).Google Scholar
26 Ibid., at p. 36.
27 Ibid., at pp. 42–43.
28 Sinzheimer, op. cit., at p. 109.
29 See Bank Otzar LeHayal Ltd., supra n. 7.
30 See Brun, , “Collective Agreements in France” in Labour Law in Europe (London, 1962) 7Google Scholar: “Automatic” “mandatory” and “immediate effect”.
31 Kahn-Freund, op. cit. at p. 140. Here the author refers to only two characteristics which he calls “compulsory” and “automatic”. Wedderburn, op. cit., at p. 188, refers only to the “automatic” aspect, as does Despax op. cit., at pp. 76–78.
32 See Brun, op. cit. supra n. 30, where the author states that the “compulsory” aspect is distinct from the “automatic” aspect. See also Kahn-Freund, op. cit., at p. 140. Wedderburn, op. cit., at p. 188, refers to “automatic” aspect, and his words indicate that he attributes a compulsory element to this term.
33 Kahn-Freund, op. cit. at pp. 154–156, gives an example of normative authority lacking an automatic aspect; the example is taken from the English law, and refers to the rulings of the Arbitration Board. In his opinion, the effect achieved under continental legal systems through extension orders, is achieved in England through arbitration awards or a law referring to a given plant under the Industrial Disputes Order, 1951.
34 On the preconditions for an extension order see secs. 25–28 of the Collective Agreements Law.
35 The distinction between legal and historical sources is based on the distinction in Salmond on Jurisprudence (Williams, Glanville, ed., 2nd ed., London, 1957) 133.Google Scholar
36 Quoted from Arthur Zilbiger and Zilbiger's Ltd. v. Norbert Dickman (1949) 2 P.D. at p. 271.
37 Ibid.
38 This is Wedderburn's opinion, op. cit., at p. 189 and was also expressed by Kahn-Freund, op. cit., at p. 142.
39 This article is quoted supra n. 10.
40 Translated into English in Legislative Series, 1967, I.L.O., G.F.R. 4, the relevant passage reads as follows: “4. Effect of legal standards. (I) The legal standards contained in a collective agreement and governing the subject matter, commencement or termination of employment relationships shall apply directly and unreservedly as between both parties bound by the agreement, in so far as such parties are covered by its scope …”.
41 See supra text at p. 484.
42 See the case of Zori Pharmaceutics and Chemical Co. Ltd. et al. v. The National Labour Court and Dr. Zvi Ricks (1973) (I) 28 P.D. 372 at p. 383.
43 See Zik Lipot v. Kastner (1971) 3 P.D.A. 215 at p. 218.
44 Estate of Moshe Shohad v. Zvi Dardikman (1970) (II) 25 P.D. 182, at p. 187.
45 See Committee of Shinua Foremen, Ashdod Port, cited supra n. 7, at p. 83.
46 This question is discussed infra, in Chapter IV.
47 See Bank Otzar LeHayal cited supra n. 7.
48 See the Diamonds case cited supra n. 7.
49 This will be discussed injra in Chapter IV in connection with the proposed theoretical model.
50 See Committee of Workers of the Israel Cables and Electric Wires Co. v. The Israel Cables and Electric Wires Company (1971) 4 P.D.A. 122 at p. 138.
51 Despax, op. cit., at pp. 76, 277–278.
52 See Wedderburn, op. cit., at p. 160.
53 Ibid., at pp. 188–197.
54 Kahn-Freund, op. cit., at pp. 139–164.
55 Hueck and Nipperdey, op. cit., at p. 245.
56 Hueck and Nipperdey (op. cit., at pp. 250–301) meticulously examine the contents of these normative provisions. In fact, they present a wider concept of labour terms and relations, including both provisions that shape the personal labour contract plain and simple, or what they term “Inhaltsnormen” (i.e., terms of employment; employer and employee obligations and so forth), and broader subjects such as provisions relating to norms termed “functional” (e.g., arrangements pertaining to pension funds etc.). They also include provisions determining the right to representation. However, reference here is to matters that belong to the framework of employer-employee relationships and not to any other sort of relation.
57 A collective agreement made and signed on 11 January 1967, between the organization of industrialists and the General Federation of Labour in Israel, the Histadrut, in Collective Agreements for the Regulation of General Problems in Industry (Organization of Industrialists' Centre, Tel Aviv, May 1968) 7 at p. 12.Google Scholar
58 See supra n. 7.
59 See supra n. 50.
60 See supra n. 57 at p. 9. Section C 1 of the second chapter of the general collective agreement.
61 The term appears in the Collective Agreements Law, in sec. 1 and again in sec. 19.
62 For example: Settlement of Labour Disputes Law, 1957, secs. 2 and 31(a) (11 L.S.I. 51); Hours of Work and Rest Law, 1951, sec. 30(a) (5 L.S.I. 125); Employment of Women Law, 1954, sec. 2(b) (8 L.S.I. 128); Apprenticeship Law, 1953, sec. 20(b)(2) (7 L.S.I. 91); Labour Inspection (Organization) Law, 1954, sec. 17 (2) (8 L.S.I. 178).
63 See Municipality of Beersheba v. Helena Ben-Ami (1971) 2 P.D.A. 253, at pp. 256–257.
64 On labour relations see Bar-Niv, Z., “The Legal and Public Aspects of Agreements and Labour Relations” published in Labour Agreements (Lectures, Israel Administration Management Centre, 1962).Google Scholar
65 The illustration refers only to this sort of relationship.
66 See Kahn-Freund, op. cit., at p. 152.
67 Supra n. 42.
68 1965, 19 L.S.I. 231.
69 See University of Tel Aviv cited supra n. 7, at p. 96.
70 See Avraham Sokirinski v. Hadassah (1974) 6 P.D.A. 70 at p. 80.
71 See University of Tel Aviu cited supra n. 7, at 96.
72 This situation did indeed arise in the judgment given in the case cited supra n. 70. A dismissed worker demanded that his case be arbitrated; according to the agreement in force, arbitration could be resorted to only if the workers' organization refused to sanction the dismissal; since the organization had consented to the dismissal, arbitration was not allowed.
73 See cases cited supra n. 50.
74 On this principle see Committee of Shinua Foremen, Ashdod Port cited supra n. 7, at p. 82.
75 See supra p. 484.
76 One example of terms of employment included: If a general collective agreement includes a provision covering wages, it is a normative provision with respect to employer-employee relations directly due to the general collective agreement. But it is also a normative provision with respect to the relations between the workers' organization and the individual employer, and becomes part of the impliedly created collective agreement which, in turn, includes all the normative provisions relating to the bargaining units that have a bearing upon it.
77 The normative provisions of an industry-wide collective agreement should be examined when they become incorporated impliedly in the enterprise-plant-level agreement; insofar as they dictate behaviour in employer-employee relations—they continue to be normative, whereas if they regulate the relations between the employer and the workers' organization they become obligatory provisions for that purpose.