Case Number

HCJ 8035/07

Date Decided

5-21-2008

Decision Type

Original

Document Type

Full Opinion

Abstract

These petitions concern the Government’s general policy decision to reduce the number of non-Israelis employed in the ethnic restaurant industry. The Petitioners challenge a line of decisions reducing the number of permits for the employments of foreign cooks in ethnic and fusion restaurants, and later the requirement of a higher pay for the employee – which would reflect the expertise at the foundation of the restaurant’s wishes to employ that person – in order to secure a permit.

The High Court of Justice (in an opinion written by Justice Levy, with Justices Joubran and Elon joining) rejected the petitions and held as follows:

We are concerned with the issue of violating the freedom of occupation of an employer who is limited in employing foreign employees. The Petitioners’ primary claim objects to the restriction of employment from the economic aspect of the right to free occupation which includes the ability to pursue an occupation based on financial prospects of success. Those who can show that, due to a government restriction, they are no longer able to operate a profitable business, bear the burden to show that their freedom of occupation has been violated. The test ought to be objective and examine whether a reasonable business owner could continue to operate, as commonly acceptable, a business of that particular kind, despite the additional expenses resulting from the legal restrictions.

The economic aspect of the freedom of occupation goes beyond this right, as it involves financial interests of a party claiming to have been harmed. A business owner, even when unable to show that s/he was denied freedom of occupation, may have been harmed by the mere increase in business expenses. But even if the party claiming such harm was unable to meet the burden of proof, their matter might still be considered if instead they are able to show instead that a protected financial interest – even one of less weight than a basic constitutional right – is harmed. A protected interest is an issue that warrants shifting the burden to the state in order to show that the harm is lawful.

The evidence presented did not sufficiently lay the foundation for a violation of the right to free occupation, since the Government’s decisions do not eliminate employment of foreign employees, and the primary issue turns on the level of prospects of financial profitability in employing these employees under the new conditions, and detailed information as to the impact of the new policy was not presented. At this time, it is difficult to assess the impact of its implementation, and therefore the Petitioners have substantiated their conclusion as to a violation of their freedom of occupation. This is the case in regards to the question of the violation of the right to property as well. As for the issue of a harm to a protected financial interest, whose status is weaker than that of a constitutional right – there is no doubt that even were the Petitioners successful in continuing to operate their businesses under the new conditions, the policy will carry negative outcomes for their financial situation. The Petitioners do not have a guaranteed right to be permitted to employ workers for lower pay, but changing a policy that had been in place for years opens the necessary door to subjecting the decisions to the tests of a worthy purpose and of proportionality. Examining the decisions reveals they have a worthy purpose and that they are consistent with the requirements of the three proportionality tests. The Government’s policy was adopted after an extensive study of the issue and it is in line with its social and economical agenda and does not warrant judicial intervention. The State has demonstrated that at this stage the scales should tip in favor of its decisions, and has therefore met its burden to show that the infringements do not exceed the necessary. The claim for discrimination between employers, too, which is rooted in different rules that apply in each of the fields that rely on foreign employers, does not hold water at this time.

Keywords

Constitutional Law -- Freedom of Expression, Labor -- Discrimination

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