27 March 2011
To:
MK Reuven Rivlin
Speaker of the Knesset
Jerusalem
Honorable Speaker,
Re: BindingMigrant Workers to Their Employers
Tomorrow, 28 March 2011, The Knesset Internal Affairs and Environment Committee is expected to approve, for a second-third reading in the Knesset plenum, an amendment to the Israel Entry Law - 1952. The bill is comprised of three clauses that were taken out of the recent Arrangements Act, and are currently discussed as an independent bill.
We, the undersigned –retired judges, law professorsand researchers – callon you to stop the legislation procedures of this bill, and to hold an extensive and calculated discussion regarding its potential implications. We wish to warn that this is an unconstitutional bill, which bluntly conflicts with a Supreme Court ruling. If enacted, it willwrongfully infringe onthe basic rights of migrant workers, by creating and enhancingtheir dependence on their employers for their legal status, and by limiting their ability to escape from abusive employment conditions.
The bill deals with various ways of restricting work permits issued to migrant workers in the nursing professions in Israel. It stipulates that the Minister of Interior will be entitled to restrict the number of employers such workers may switch between, and to determine the geographic region in which they may work. Additionally, the bill states that the minister will have the power to restrict theirfield of occupation, in effect tying migrant workers to subsections of the nursing professions (e.g., allowing them to offer nursing services only the elderly, to the severely handicapped, or to minors).
This bill constitutes an attempt to restore the previous"binding arrangement" betweenmigrant workers and their employers, which the Supreme Court has already deemed in 2006 as "a type of modern slavery" (HCJ 4542/02 The Kav La'Oved v. the Israeli Government, ver. 71(1) 346 (2006)). The court ordered to cancel the binding arrangement due to its wrongful infringement on basic rights, and further ruled that in any future arrangement, the Minister of Interior will no longer be allowed to condition the resident permit upon employment by specific employers, and will refrain from associating the termination of working relations with any sanctions, including revokingthe worker's legal status in Israel.
The court ruled that the arrangementbinding workers to employers – whichrestricts the number of employers and ties the termination of working relations with the revocation of the worker's legal status in Israel – severely harms a wide range of protected human rights, primarily the right to dignity and personal freedom. This arrangement creates an irregular legal reality, whichconflicts with the basic principles of labor laws, with the moral value of a labor contract between an employer and an employee, and with the very purpose of a labor contract. It gives employers the power to impose work contracts and to prevent employees from resigning, and it distorts the balance of power in the labor market.
The ruling did not address a situation in which absolute restrictions are imposed on the possible number of employers. At the time, the binding arrangement allowed limited changing of employers, but gave officials from the Ministry of Interior the power to refuse, at their own discretion, a worker's request to change employersif, for example, they found out that the worker had frequently switched employers. The court found that this was an unconstitutional restriction, and explicitly stated that "frequent" transitions between employers cannot be cited as legitimate cause for restricting the worker'sinherent right to terminate working relations at all times.
In its ruling, the court specificallystated that the nursing profession should not be made legally distinct from other professions in which migrant workers are employed, and that there was no justification for making it an exception to the existing general ban on binding arrangements. "No one will deny that the respondents have a duty to ensure that the elderly and the disabled in Israel enjoy conditions in which their humanity is not humiliated and their dignity as human beings is maintained," stated the court, and added:"However, there is a great gulf between this and the conclusion that realizing this obligation justifies restricting a person to his employer by forcing him, in practice, to provide a personal service under duress. In theory, the respondents approach is that we must guarantee that every person who needs nursing as such can employ a foreign worker, irrespective of the question of wages and the conditions of work that he wishes and is able to give to his employee, by linking the resignation of the caregiver from his employment with the person in need with a harsh sanction of losing his status in Israel. This approach, as stated above, does not stand up to constitutional scrutiny, since it does not satisfy the principle of proportionality. It also does not stand up to moral scrutiny, since human beings always are an end and a value in themselves. […] The purpose that the respondents set for themselves— guaranteeing the welfare and the dignity of the elderly and the disabled who require nursing services— is a proper purpose. […] But the right of one person to dignity does not mean the absolute denial of this right to another. It is not the right to employ another person under duress, with low wages and without social benefits. It is not an unlimited authority to violate the liberty of another. Its realization does not require another person to be compelled to provide a personal service— and what service is of more ‘personal’ a nature than nursing care— under duress.(Paragraphs 59-60 of the verdict).
The verdict particularly stressed the resemblance between the arrangement binding migrant workers to their employers and common arrangements in periods of feudalism and slavery.
"A study of the restrictive arrangement that the state created and applied to foreign workers[…]gives rise to astonishment mingled with anger: how can persons in authority in our country think that they can treat in this way women and men who only want to provide for their families? […] How did they fail to see that the arrangement that they made seriously violated the dignity of the foreign workers as human beings? Every human being— even if he is a foreigner in our midst— is entitled to his dignity as a human being", stated the court, and added: "Indeed, we cannot avoid the conclusion— a painful and shameful conclusion— that the foreign worker has become his employer’s serf, that the restrictive arrangement with all its implications has hedged the foreign worker in from every side and that the restrictive arrangement has created a modern form of slavery." (Paragraph 4 of the verdict of Deputy President Heshin)."What has happened to us", further wonders the court, "that we are treating the foreign workers, those human beings who leave their homes and their families in order to provide for themselves and their families, in this way? We are overcome with shame when we see all this, and we cannot remain silent.".(ibid).
Despite the fact that this binding arrangement was explicitly disqualified for being unconstitutional and disproportionally harming basic rights, the current bill wishes to reinstate the old arrangement.
We urge you to stop the legislation procedures of this bill, and to hold an extensive and calculated discussion regarding its potential ramifications.
Respectfully,
Judge (Ret.) Boaz Okon
Judge (Ret.) Yehudit Zur
Judge (Ret.) Michael Ben-Yair
Judge (Ret.) Saviona Rothloy
Prof. Mordechai Kremnitzer
Prof. Amnon Rubinstein
Prof. José Brunner
Prof. Uriel Procaccia
Prof. Kenneth Mann
Prof. Fania Oz-Salzberger
Prof. Frances Raday
Prof. Jonathan Yovel
Prof. Neta Ziv
Prof. Aeyal Gross
Prof. Alon Harel
Dr. Yifat Biton
Dr Yishay Blank
Dr. Gila Stopler
Dr. Yofi Tirosh
Dr. Tzvi Trigger
Dr. Khalid Ghanayim
Dr. Daphna Hacker
Dr. Yossi Dahan
and many others