Case Number
HCJ 104/87
Date Decided
10-22-1990
Decision Type
Original
Document Type
Full Opinion
Abstract
Petitioner, Dr. Naomi Nevo, was employed for many years by the Jewish Agency for Israel as a sociologist. On reaching the age of 60, she received a notice from her employers that she was to retire on pension, in accordance with the provision in the Pension Rules relating to Jewish Agency employees. This stated that the retirement age for men was 65 and for women 60.
Petitioner brought an action in the Regional Labour Court asking for a declaration that the above provision was void as being discriminatory. Her action was dismissed and so was her appeal to the National labour Court. Hence, her petition to the High Court of Justice against the National Labour Court and against her employers, the staff committee and the union of office workers.
In allowing the petition and making absolute the order nisi against the respondents, the Court held as follows:
1. In accordance with a well-established criterion, as laid down in case law, discrimination is present wherever the principle of equality is infringed, i.e., where persons are treated differently even where there is no relevant difference between them. Accordingly, the distinction between men and women in respect of retirement age in the provision in question must be examined to determine whether it is "relevant", i.e., whether it serves any legitimate purpose.
The submission of counsel for the Jewish Agency that the provision for early retirement of women conferred benefits on them, enabling them to receive pension monies earlier and taking into account the extra burden that they had to undergo over the years as wives and mothers, was not acceptable. Nor was it relevant that, as submitted, many women were satisfied with the arrangement for early retirement.
On the contrary, the differentiation in ages of retirement for men and women amounted to discrimination, for the following reasons:
a) the age differential was irrelevant in the context of alleviation from the burden of work, there being no difference between men and women in this respect;
b) earlier retirement for women has a number of negative social, personal and economic implications. Inter alia, early retirement may curtail a promising career and entail a lower pension payment then if the woman were allowed to continue to work for a further 5 years;
c) there is no justification in compelling a woman who reaches 60 years of age to retire, since at that age she is relieved of much of the domestic responsibilities which made her working life more difficult in earlier years. On the other hand, allowing a woman the option to retire at 60 is acceptable;
d) in 1987, the statute known as the Male and Female Workers (Equal Retirement Age) Law was enacted by the Knesset. This statute came into force subsequent to the judgment of the National Labour Court in the present case and after the instant petition had been submitted to the High Court. Nevertheless, from the wording of the statute and the explanatory notes to the bill that preceded it, it is clear that the legislator regarded earlier compulsory retirement for women as being discriminatory;
e) an examination of the jurisprudence of the Court of the European Community, as well as of English case law, shows that those jurisdictions also regard differentiation in retirement age as constituting discrimination. Moreover, it is stressed in the English cases that intention or motive to discriminate does not have to be proved - suffice it for discrimination to exist in fact.
Nor is there any basis in the contention that early retirement for women assists in renewing the labour force and alleviating unemployment. There is no reason why women should suffer more than men for these reasons.
2. With regard to the statutory position prior to the 1987 statute, a number of provision did include a differentiation between men and women as to retirement age - as for example several sections in the National Insurance Law, the securing of Income Law, 1980 and the Severance Pay Law, 1963. On the other hand, labour legislation prior to 1987 which required equality between the sexes contained no reference to retirement age. Nevertheless, in interpreting the relevant provision in this case, the basic presumption in favour of equality and against discrimination must be applied, in accordance with the provision of section 1 of the Women's Equal Rights Law, 1951 which prohibits discrimination against women in respect of any legal act.
3. The 1987 statute does not operate retroactively. However, it should not be inferred from this that therefore in the period prior to its enactment differentiation in retirement age between men and women was permissible. At any rate, contrary to the respondents' contention, the statute certainly does not deprive the petitioner of her right to postpone her retirement until the age of retirement for men.
4. The High Court of Justice can justifiably intervene in the decision of the Labour Court in this case, in view of the substantial legal error in that decision and because justice requires such intervention.
5. This is one of the exceptional cases where a court is justified in intervening in the content of a labour agreement for reasons of public policy, in view of the discriminatory provision which affects the rights of women.
6. In view of the above, the Court must act to annul the affect of the discrimination by declaring that the offending provision in the Jewish Agency Pension Rules is totally void.
Keywords
Constitutional Law -- Equality Before the Law, Employment
