Case Number

HCJ 9134/12

Date Decided

4-21-2016

Decision Type

Original

Document Type

Full Opinion

Abstract

Section 4 of the Retirement Age Law, 5764-2004 (hereinafter: the Law) provides that "the age at which an employee can be required to retire because of age is 67 for a man and for a woman". The petitioners challenged the validity of section 4 of the Law, and the hearin focused on the question of whether that statutory provision is constitutional.

The High Court of Justice (per President Naor, Deputy President Rubinstein and Justices Danziger, Vogelman, Barak-Erez, Hayut and Hendel concurring) dismissed the petition, holding:

The Court applies judicial review of the Knesset's primary legislation with restraint and caution. Special care is necessary when that the legislation under review delineates wide-ranging social and economic policy. Retirement age is a complex, polycentric subject, and of the possible solutions, the Israeli legislature adopted a collective model that prefers a age criterion to an individual examination of the individual. In such circumstances, although the Court will not refrain from exercising constitutional review, it will do so with extreme care.

As regards the constitutional review of the mandatory retirement arrangement, compulsory retirement because of age infringes the right of equality that derives from the constitutional right to human dignity. Having regard to the nature and extent of the harm, it can be said that such harm amounts to an infringement of human dignity. However, the infringement meets the requirements of the Limitation Clause. According to the conditions of the Limitation Clause,constitutional rights cannot be infringed, except by virtue of a law befitting the values of the State of Israel as a Jewish and democratic state, enacted for a proper purpose, and to an extent no greater than is required. In the instant case, the infringement is in the Law. The parties did not expand on the Law's befitting the values of the State of Israel as a Jewish and democratic state. Therefore, the purpose of the Law and its proportionality were examined.

With regard to the purpose of the Law, its general purpose is to prescribe uniform rules with regard to retirement age, including raising it gradually. The determination of uniform rules for retirement is intended to promote several sub-purposes: the protection of employees' interests and the promotion of social security. As opposed to this, it is not improper to considerthe interests of new workers in the labour market, as well. The purpose of managing the workplace and planning manpower is not an improper purpose either. The purposes of the Law demonstrate its aspiration to effect a balance between the rights and interests of the different "players" in the labor market: the employer, the different groups of employees and the economy as a whole. In addition, the Law does not compel an employee to retire upon reaching a certain age, but rather permits him and the employer to consider allowing the employee to retire at a later stage, and even obliges the employer to give consideration to continuing the worker's employment after retirement age, if the employee so requests. As a rule, striving for a fair balance between competing interests of individuals is a proper purpose.

As for the proportionality of the infringement, in the framework of the proportionality tests, an examination is made of the relationship between the purpose of the Law and the means chosen by the legislature in order to achieve it. The proportionality of the statute is analyzed by means of three subordinate tests: according to the rational connection test, the means chosen by the legislature must reaize the purpose underlying the statute. In the instant case, a mandatory retirement age arrangement can achieve the Law's purposes. The lesser-infringement test comprises two elements: the first element examines whether there is an alternative that can achieve the proper object of the Law to the same extent as the means adopted by the Law. The second element examines whether the alternative infringes constitutional rights to a lesser extent than the means adopted in the Law. In the instant case, the mandatory retirement arrangement passes the second proportionality test. In the framework of the proportionality stricto sensu test, an examination is made of whether there is a proper relationship between the benefit that will arise from achieving the Law's purposes and the associated infringement of the constitutional rights. The model of compulsory retirement because of age has advantages and disadvantages. As opposed to this, other models are also not free of difficulties. Given this complex background, the legislature's preference of the model of compulsory retirement because of age over other models is based on reasonable considerations that show no cause for the Court's intervention. The legislature's choice of the compulsory retirement because of age model reflects an informed choice among different possibilities. In view of all the advantages and disadvantages, that choice does not depart from the broad margin of proportionality graanted the legislature under the circumstances. In these circumstances, even if some of the customary factors for justifying mandatory retirement and their weight can be questioned, that does not suffice in order to find that the Law is disproportionate. In addition, even were it held that the mandatory retirement age is improper, it would be possible to conceive of different possible ways to rectify it, rather than abolishing it altogether. To this may be added the fact that a collective retirement model that establishes a uniform, predetermined retirement age has been customary in Israel for many years. Replacing that model with another might materially affect the employment market, especially if the change were made immediately, pursuant to a judicial decision.

Keywords

Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Equality Before the Law, Labor -- Discrimination

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