On March 18th, 2013, the High Court of Justice ruling was given in a deliberation centered on the question of the application of the Work and Rest Hours Law to migrant workers in the caregiving sector (the second deliberation in the High Court of Justice case 10007\09 Yolanda Gluten v. National Work Court). The High Court of Justice rejected the appeal with a majority rule, and left the original ruling as it was.
In 2009, the High Court ruled that the Work and Rest Hours Law does not apply, categorically and comprehensively, to the work of migrant workers in the caregiving sector. The Work and Rest Hours Law is one of the bases on which the Israeli labor law system is built upon, and it regulates fundamental issues such as number of work hours per day, breaks during the workday, weekly rest days, and payment for overtime and working on Shabbat and on holidays. Excluding migrant workers from the application of this law means that minimal standards do not apply to them and therefore it is possible to employ them 24 hours a day, with no breaks or weekly rest, and with no obligation to pay them for working overtime, on Shabbat or holidays.
The majority rule in this verdict confirmed the decision of the original ruling, such that the Work and Rest Hours Law does not apply to migrant caregivers due to the difficulty in applying the law in this type of work. The consequence is unprecedented: excluding tens of thousands of disadvantaged and unorganized workers from this basic labor law.
Attorney Hanny Ben Israel, who represented Gluten in Kav LaOved’s appeal, stated, “The ruling made by the High Court of Justice is unfortunate and worrisome. In practice, it means leaving caregivers – who are unorganized, have no collective voice, are for the most part migrants, employed in harsh physical and unprofessional labor and are paid meager wages – outside of the minimum protection of labor laws. This verdict took out the socialist purpose behind the Work and Rest Hours Law, and undermines the balance of the bases of labor law. It is unlikely that the consequences will be limited to caregivers alone, and it is very probable it will to spread to include even more groups of workers.”
Discrimination on the Basis of Gender
Excluding caregivers is a devastating blow to their right to equality. It is obvious that excluding a field of work from the law, which is made up of over 80% women according to official records, results in severe discrimination on the basis of gender and applies an inferior and discriminatory legal rule to the work of women. Another example of gender-based discrimination is visible in the division of male and female judges in the ruling: while the majority vote included six male judges (Grunis, Robinstein, Jobran, Handel, Meltzer and Danziger) whose votes ultimately turned down the appeal, the minority vote included three female judges (Naor, Hayut and Arbel) who claimed the appeal should be accepted.
Judge Edna Arbel stated, “A situation in which an employee works 24 hours a day, 6 or 7 days a week straight and without breaks, is unacceptable in modern society and should not be condoned. Payment for overtime, aside from its purpose in concept, might also help grant the worker time off in practice.”
Judge Ester Hayut wrote, “The fact that upholding rights workers are entitled to by the protective Israeli labor law has financial costs is not a proper justification to harm or take away these rights, even if the caregivers belong to disadvantaged groups…You cannot expect doctors to treat patients with no proper payment for that treatment, or pharmaceutical companies to offer patients free medication. And still we expect the country to regulate health insurance to make sure it provides reasonable medical services to patients, as well as make sure the Health Basket [pool of government-provided care and medicine] will contain the majority of medicine they need. I believe the country should take responsibility for the wellbeing of its patients needing care by directing appropriate assistance to caregivers and by covering the costs involved as stated in the labor laws, in accordance to how much assistance the patient needs. ”
This verdict joins the sad list of verdicts, laws and procedures aimed at binding caregivers in a form of modern-day slavery. Kav LaOved views this exclusion of migrant workers from labor laws that apply to all workers in Israel with gravity. The importation of migrant workers to Israel occurs at the initiative and decision of the country. Once the state has decided to bring in migrant workers, it is the state’s responsibility to ensure the protection of migrant workers’ rights, and it should not renounce this responsibility.