Case Number

HCJ 5666/03

Date Decided

10-10-2007

Decision Type

Original

Document Type

Full Opinion

Abstract

Facts: Palestinian workers filed claims in the Labour Courts against their Israeli employers with regard to their employment in the Israeli enclaves in Judaea and Samaria. These claims gave rise to the question whether these employment relationships were governed by Israeli law or by the local law of Judaea and Samaria, which is Jordanian law, the significance of this question being that Israeli law grants workers more rights and protection than Jordanian law.

The National Labour Court held on appeal that in the absence of any stipulation on this issue in the employment contracts, these employment relationships were governed by Jordanian law as the local law in force in Judaea and Samaria, since Israeli law has never been applied to the occupied territories as a whole, but only to Israelis living in Judaea and Samaria.

The petitioners, who are human rights organizations, petitioned the Supreme Court on behalf of the Palestinian workers to set aside the judgment of the National Labour Court and to rule that Israeli law governs their employment relationship. They argued that this intention could be clearly seen from the employment contracts. They further argued that this conclusion was also required on several other grounds: the second respondent is an Israeli government authority, and is therefore bound by Israeli law; the custom in employment law is that the employment contract should be governed by the law most favourable to the worker; in the absence of any agreement between the parties, the contract should be governed by the law that has the strongest ties to the contract, which in this case is Israeli law; the judgment of the National Labour Court is contrary to public policy; the judgment of the National Labour Court is discriminatory in that Palestinian workers and Israeli workers who do the same work receive different wages and employment benefits.

Held: The contracts in this case do not contain any express statement of the parties’ intentions as to the law that should govern their employment relationships. Therefore, the law governing the contracts should be decided in accordance with the ‘strongest ties’ test. In applying this test, the territorial criterion has less weight in the Israeli enclaves in the occupied territories, where more than one set of laws operate. Consequently, the weight of the other ties and of the principles of the legal system becomes greater when choosing the applicable law.

The circumstances of the case lead to the conclusion that the employment relationships are more closely connected with Israeli law than with Jordanian law.

This conclusion is also supported by the principles of substantive employment law, for which the choice of law is required. The principle of equality, which is a fundamental principle of employment law, demands that the same law govern both Israeli and Palestinian workers who work in the same place. Applying different sets of laws for Israeli workers and Palestinian workers necessarily results in discrimination. The conflict of law rules were not intended to legitimize such an outcome.

Keywords

Administrative Law, Contracts, Employment, International Law, Labor

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