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II. Israeli
Labor and Social Benefits Law
On October 8th, 1970,
the Israeli government decided, by non-parliamentary fiat, that
Palestinian laborers entering Israel from the West Bank and Gaza Strip
would be treated equally to Israeli citizens and residents with regard to
wages and benefits.
According to Aharon
Barzani, the director of the Payments Section Division of the Israeli
Employment Service, this decision was made both to protect Palestinian
workers and to insure that Palestinian workers would not undercut Israeli
citizens in the job market.
The entry of
Palestinian workers into Israel is coordinated through the Israeli
Employment Service, which was created by a decision of the government of
the State of Israel on October 8th, 1970. The Employment Service was
established on one hand to ostensibly ensure that equality of wages and
benefits were provided Palestinian workers and on the other hand to
control and supervise the workers entering the Israeli economy.
Furthermore, the labor
laws of the State of Israel do not distinguish between workers according
to their national origin or citizenship. Israeli labor law applies
according to the location of employment, not according to the individual
employee. That is, if a worker is employed within the borders of Israel,
the labor law applies
to him, regardless of his nationality. Therefore, Palestinian workers are
entitled, under law, to the same minimum wage, paid vacation, severance
pay, maximum working hours, etc., as Israeli citizens.
As we shall see, these
legal entitlements are, in practice, often unfulfilled.
Many rights and
obligations for workers in Israel, beyond those determined by legislation,
are established by collective labor agreements in which employers and
labor unions bargain to establish the terms of employment for a group of
workers. This means, “the scope of rights is determined by the social
partners active within the sphere of industrial relations.”
The Collective
Agreements Law, 1957 (C.A.L.) provides equal treatment for all employees
included in a given bargaining unit. Because the scope of the bargaining
unit is defined by each particular collective agreement, the question of
whether Palestinian workers enjoy equal rights as derived from such
agreements depends on the terms of each particular agreement. The vast
majority of Palestinian workers are employed in industries such as
construction, agriculture and manufacture which are governed by collective
agreements which cover all individuals employed in the industry,
regardless of citizenship or nationality.
According to the
Histadrut, the General Federation of Labor in Israel, all collective
agreements to which it is party cover workers of any nationality,
including Palestinians from the Occupied Territories, despite the fact
that Palestinians may not join the Histadrut as members.
It may be concluded,
therefore, that at least as the law is written in statutes and collective
bargaining agreements, Palestinian workers are not discriminated against.
More often than not, for a variety of reasons, Palestinian workers are not
able to exercise, in practice, the rights that they have under law.
Unlike the de jure
equality which laborers from the Occupied Territories enjoy with regard to
legislation and collective bargaining agreements, Palestinian workers have
been and continue to be the victims of discrimination at the hands of
Israel’s National Insurance Law. As explained in the handbook of the
Payments Section Division of the Employment Service, “[a]ccording to the
National Insurance Law, regulation 3(b) of the National Insurance by-laws
(collection of insurance premiums), employers within Israel employeeing
(sic) workers whose place of residence is Judea, Samaria
or Gaza shall pay
insurance premiums for these workers according to the same percentages [as
they pay for Israeli workers] via the Employment Service.”
Additionally, the
Israeli Employment Service deducts from Palestinian worker’s paychecks at
the same rates it deducts from Israeli workers’ salaries.
In other words, Israel
collects the same amount of insurance money from Palestinian workers as it
collects from Israeli workers. Yet, Palestinian workers are not eligible
for the entire range of benefits which Israeli workers enjoy under the
National Insurance system. Palestinian workers, as non-citizens of Israel,
receive just three of the strands of National Insurance benefits which
Israeli contributors to the National Insurance pool receive. Palestinian
workers are, therefore, forced by the Israeli government to pay for
benefits that they are ineligible under Israeli law to receive. This
patent discrimination is the result of a governmental desire to protect
Israeli workers from cheaper competition from the West Bank and Gaza
Strip.
This iniquity, which
has persisted during the thirty years that workers from the Occupied
Territories have entered Israel for work, has recently been challenged in
the courts and acknowledged by the Israeli authorities. Israeli
authorities have long justified this practice explaining that the
differential funds (i.e., those contributions which are not returned to
workers through the National Insurance Institute) are transferred by the
National Insurance Institute (N.I.I.) to the Israeli Defense Forces
(I.D.F.) Civil Administration, the military government in the Occupied
Territories. The Civil Administration has supposedly spent those funds,
over the years, for the “general welfare” of the population in the
Territories. Even if one accepts at face value the tenuous Israeli
assertion that the Civil Administration did indeed spend the funds on
“general welfare,” the practice nevertheless constitutes an illegal
conversion of personal insurance funds into a general welfare tax. These
moneys are deducted from workers’ paychecks in the name of insurance
benefits, not in the name of contribution to I.D.F. expenditure. This
constitutes, in the words of Professor Frances Raday of the Hebrew
University, a form of “taxation without representation.”
In January 1994, Kav
La’Oved (Worker’s Hotline), an Israeli NGO devoted to protection of
workers, commenced litigation on behalf of a number of workers to recover
the discrepancy in funds. The lawsuit as well as subsequent agreements
between Israel and the PNA which affect this issue will be discussed later
in section VII-I.
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