"Sefer Menachem Goldberg" ("Menachem Goldberg Book"), edited by Aharon Barak, Steve Adler, Ruth Ben-Israel, Yitzhak Eliasof, Nahum Feinberg, Sadan Publishing, 536 pages, NIS 190
One of the ways that members of the judicial world pay tribute to their distinguished colleagues is by publishing anthologies in their honor. The former chief justice of the National Labor Court, Menachem Goldberg, has been feted with a hefty volume of 19 articles on labor law, written in his honor by judges, lawyers and law professors.
The circumstances of Menachem Goldberg's departure are alluded to only vaguely in the book, but we shall come back to this later. Goldberg left the bench in 1997, at the age of 63, seven years before the legal age of retirement. He did so in a howl of protest at the manner in which his "kingdom" - the labor courts, and the National Labor Court, in particular - was being imposed upon and its sovereignty violated. He found evidence of this in the tendency of the High Court of Justice to overturn its rulings, as well as the appointment of Elisheva Barak, wife of Supreme Court president Aharon Barak, as deputy chief justice of the National Labor Court, although Goldberg himself was opposed. Goldberg felt that in the matter of appointments, he deserved the same consideration as Aharon Barak: No judges appointed against his will, even if the person in question was Barak's wife.
Goldberg's dissatisfaction continued after his retirement. The new chief justice, Steve Adler, and his deputy, Elisheva Barak, adopted a completely new approach to employment law in Israel, setting off a round of mudslinging between the outgoing and incoming president. The conflict began with the two of them exchanging barbs at professional conferences and reached a peak with an interview Adler gave to Yedioth Ahronoth.
From this standpoint, the book has already made an important contribution: It has soothed some of the discord. The professional solidarity needed to get the project done and hold a festive party to mark its publication lessened the tension - or, at least, diverted it into more intellectual channels.
Supreme Court Justice Menachem Elon once described the difference in approach between Barak and himself on the role of the court: "For Barak, the court is an instrument for achieving perfection. For me, it as an instrument for achieving peace." "Menachem Goldberg Book" is not perfect, but it has certainly made peace - temporary, at least - between the two National Labor Court presidents.
External and internal controversies
This review cannot do justice to all the articles in the book, but running through them are issues of broad public interest, allusions to the major controversies and personal observations that are worth dwelling upon. As Tel Aviv University professor once said: "I read everything Prof. Barak writes because I know that Justice Barak reads it, too."
In the introduction, Aharon Barak offers a glimpse of the controversy that led to the publication of this book. "I know that the relationship between the National Labor Court and the High Court of Justice has troubled President Goldberg greatly. He would like to see the National Labor Court as the preeminent and final authority in work-related matters. This was also President [Zvi] Bar-Niv's opinion. I am familiar with this opinion, and I respect it. But it is not the only opinion."
Barak goes on to say that in his own (dissenting) view, the Supreme Court should serve as a court of appeals for the National Labor Court. Ultimately, this lowers the status of the National Labor Court to a district court, whose rulings can be appealed, and takes away its independence. That is precisely what bothered Goldberg, who saw the National Labor Court as a separate and autonomous entity.
So much for the external controversy - the National Labor Court versus the Supreme Court. The internal controversy - the dispute between Goldberg and Adler - is described in an insightful article by Attorney Haim Berenson entitled "Judicial Radicalism and New Trends in the National Labor Court - A Fair Balance Between Employers and Employees." Berenson criticizes what he feels is a biased approach that favors employees.
Herein lies the great revolution. In Goldberg's time, the court was perceived as favoring the employer, in both the public and private sectors. Employers could easily secure court orders to stop strikes, and in most cases, the dismissal of employees was supported by the court. Today, the reverse is true: The scales tip in the employee's favor.
Berenson challenges the assumption that underlies the work of the court, i.e., the idea that the employee is always the underdog, hence the court must defend him, even to the point of asserting that he has ownership rights in the work place. "The National Labor Court has restricted the administrative prerogative of the employer all the more by attributing newfangled `ownership rights' to employees," he writes. "From the court's perspective, factory workers are a kind of partner in the business, although there is no legal foundation for anything of the kind in Israeli law."
Justice Elisheva Barak, one of the chief proponents of this new approach, answers Berenson in an article of her own. "Labor law holds in its hands the fate of human beings," she writes. "We who work in this field are guided by values and human rights." Barak usurps the formula for balancing human values and vested interest from her husband, the president of the Supreme Court, for the sake of equalizing the status of employers and employees. Ownership rights, which were once the sole prerogative of the employer, are reduced to a mere administrative right, whereas the right to work and earn a livelihood is upgraded to a kind of owners' right.
For Elisheva Barak, these two rights - the administrative right and the right to work - are "basic human rights" that sit on the same normative plane. The judge is thus entitled to make any adjustment he sees fit. If one adds to the equation the assumption that the worker is always weaker, the court is obligated to intervene and take affirmative action on the worker's behalf.
In a nutshell, these are the positions of the two warring factions. In practice, there is even a certain similarity between them: Both are concerned with equality versus subordination. Is the employee subordinate or equal to his employer? Is the National Labor Court subordinate or equal to the Supreme Court?
Goldberg's answer is subordination in the first case and equality in the second. The employee is subordinate to his employer, and the National Labor Court is equal to the Supreme Court. Goldberg's successors disagree with him on the first question, at least. In their view, the employee and employer are equal. On the second question, their position is less clear, but there is no doubt that Goldberg's withdrawal from the arena has made it easier for the labor courts to be integrated in the regular court system if such a decision is reached.
The book lists five editors, but two of them did most of the work: Attorney Nahum Feinberg, one of the leading labor lawyers in Israel and Goldberg's partner before he became a judge; and Judge Yitzhak Eliasof, who also left the National Labor Court before reaching retirement age. Eliasof's departure may have been quieter, with less media coverage, but his reasons for leaving were much the same.
