Simon Jackson
Legal Advisor to Torah Mitzion
The date: 1 year ago (April 2005). Design 22 – Shark Deluxe Furniture Ltd. is an Israeli company that works seven days a week and employs Jewish workers on Shabbat. The Ministry of Labor and Welfare has fined the company three times in the past for working on the Sabbath. Design 22 ultimately decides to apply for a permit to enable it to remain open and its employees to continue working on Shabbat and Chag, but the Labor Ministry turns it down for not fulfilling the conditions needed for such a dispensation. The company takes the case to the highest court of the land – the Israeli Supreme Court.
The legislative framework governing work and rest hours of employers and employees is the Israeli “Hours of Work and Rest Law, 5711-1951” which states as follows:
7. (a) At least 36 consecutive hours per week shall constitute an employee’s weekly rest.
(b) The weekly rest shall include – (1) for Jews – the Sabbath day; (2) for persons who are not Jews – the Sabbath day or Sunday or Friday, whichever he customarily observes as his weekly day of rest.
9. Employment of an employee during his weekly rest is prohibited, unless it was permitted under section 12.
9A. On the prescribed rest days… the owner of workshops or industrial enterprises shall not work in their workshops or enterprises, and owners of stores shall not do business in their stores.
12. The Minister of Labor and Social Welfare may permit the employment of employees during all or some of the hours of weekly rest, if he is satisfied that interruption of work… is likely to injure the defense of the State or the security of persons or property, or to cause serious injury to the economy or to a work process or to the satisfaction of needs which in the Ministry’s opinion are essential to the public or to part of it.
Design 22’s Case: The Prohibition Against Sabbath Employment is a Contradiction to the Company’s Right to Freedom of Occupation
Design 22 argues that the above provisions of the Israeli Hours of Work and Rest Law, which prohibit the employment of Jews on Shabbat, are unlawful on the ground that they violate the company’s entrenched right to work under the country’s Basic Law: Freedom of Occupation. This states:
3. Every Israeli national or resident has the right to engage in any occupation, profession or trade.
Moreover, the company argues, the prohibition on working on Shabbat does not come within the provisions contained in section 4 of the Basic Law, which permit a violation of a person’s freedom of occupation in certain circumstances:
4. There shall be no violation of freedom of occupation except (i) by a law befitting the values of the State of Israel, (ii) enacted for a proper purpose, and (iii) to an extent no greater than is required, or by statute enacted by virtue of express authorization in such law.
According to Design 22, the prohibition against its continued employment on Shabbat violates its right to freedom of occupation and is causing significant economic damage to both it and its employees (19 of whom have joined in the petition, along with the company).
If forced to close its branches on Shabbat, the company argues, its activities will be restricted, and some of its branches would even need to close down, as they would be unable to meet the fierce competition vis-à-vis other companies in the furniture marketing industry.
It further argues that its branches are located far away from residential areas such that their opening on Shabbat does not constitute any interference to other people who wish to enjoy the Shabbat tranquillity.
The company does not deny the need for a weekly rest day, but complains about the fact that Shabbat is specifically the day chosen for this purpose. It argues that employees should be allowed to choose for themselves on which day they would prefer to take their weekly rest day.
The State’s Counter-Arguments
The head of the Department for Labor Permits on Shabbat, the Ministry of Industry, Trade and Labor, and the Attorney General, all request that the Court deny the company’s petition.
According to these Respondents, the prohibition against working on Shabbat serves two goals. One, a social-welfare goal, which acknowledges a person’s right to rest from his work. Annulling the prohibition on Shabbat employment would, they allege, injure members of the weaker classes, who require the Knesset’s protection against potential exploitation by their employees.
The second goal is national-religious in nature and realizes the social goal. The Respondents argue that the Shabbat day is a rest day for Jews and it is therefore logical that the Knesset should prescribe this day as the rest day in the law. The determination of a uniform rest day is able to promote the goals of the rest day and to contribute to the creation of a “restful atmosphere.” This is compatible with the approach which is conventional in the wider world.
Concerning the alleged violation of the Basic Law, the Respondents claim that the goal that stands at the base of the prohibition against employment on Shabbat befits the values of the State of Israel as a Jewish and democratic state, it is for a fitting purpose and its infringement of the freedom of occupation is to an extent no greater than required.
Food for Thought:
The right of citizens to work when they want and the prohibition in the law against working on Shabbat – which should prevail in a case of conflict in Israel’s “Jewish and democratic” state?
In an earlier case Investment Managers Bureau in Israel v. Finance Minister [1997], Israeli Supreme Court Chief Justice, Aharon Barak, ruled:
“The freedom of occupation as a constitutional right… is an expression of a person’s self-definition. Through the freedom of occupation, a person shapes his personality and status and contributes to the social fabric. This right is compatible with the values of a Jewish state. Work is unique to human beings and gives expression to the Divine image inherent within a person.”
How do you think Israeli Supreme Court Chief Justice, Aharon Barak, ruled in this conflict?
