Preface 1 – International Employment

We live in a global village. Employees are relocated on a constant basis worldwide, and that causes the employer to be on guard: various jurisdictions may have VERY different labor laws, which may impose surprising liability on the employer or deprive the employee from benefits he would have in his “home jurisdiction”. Employers and employees should pay great attention to the matter or else face material changes to their employment contract, often imposed thereupon.

Preface 2 – The Legal Status in Judea and Samaria

Israel is in a unique situation due to its political status. Israel is holding Judea & Samaria (hereinafter: JS) under its domain since 1967, but never declared it part of the Israeli state. Israeli citizens living in JS are governed by Israeli law, whereas the area itself is divided between Military rule with respect to administrative and to some extent criminal law, and Jordanian civil law, since Jordan held JS until 1967 (Jordan never declared JS part of Jordan, but rather acted in exactly the same manner as Israel). Since 1993 as the Oslo agreements came into force, there is a …new growing set of laws – that of the Palestinian Authority (hereinafter: PA). Tricky? This is still the preface
Over the years JS Arabs (AKA Palestinians) have worked in Israel and in the Israeli settlements in JS. It was clear to all, that the Jordanian law governs their employment, which was quite good to Israeli employers since the Jordanian law is far from being as employee-oriented as the Israeli law is.

HCJ 5666/03 – Workers’ Hotline v. the National Labor Court et al.

In 2003 a court ruling (NA 300050/98) reaffirmed said rule – Palestinians’ work employed by Israelis in JS settlements is governed by the Jordanian law.
However in 2007 said ruling was reversed in the abovementioned HCJ 5666/03. it was ruled that the governing law over Palestinians employed by Israelis in JS settlements, where no agreement in that respect was made by the parties, shall be determined on a case by case basis according to the “Majority of Circumstances” rule, i.e. – where not mutually agreed, the court shall review the nature of the work and determine whether the Israeli or Jordanian law is to be applied on said employee. Mind you – such review shall be made under Israeli law standards and rules.

Foreign Law is FACT

One has to be alert to the fact that foreign law is deemed fact under Israeli law. Where a party argues that a given foreign law should apply, that party has to prove what the foreign law is, just as any other argued fact must be proven. Usually such proof is done by means of a legal opinion given by an expert of said law (usually an attorney who is also qualified in the foreign jurisdiction, as I give legal opinions regarding New York and US law).
That is of great significance; courts will be reluctant to even consider the application of the foreign law when they don’t even know what it is, not to mention actually applying it; one cannot expect a court to apply a law, it does not even know.
In a recent case (3570/09) the Jerusalem Regional Labor Court ruled that it is the ISRAELI labor law which applies to a resident of the Palestinian Authority working in a JS Israeli settlement, rather than the Jordanian labor law. It did so following the Workers’ Hotline precedent, but also – and this was emphasized in the judgment – because the Jordanian law was never proven as claimed by the defendant.

Not Just Palestinians (!!!)

The court commented that in general terms, it is appropriate to apply Israeli labor law (which generally speaking favors employees) to any work done in an Israeli territory, even if such territory is only Israeli de facto, where not otherwise agreed between the parties and mainly where the foreign law is not proved.
This ruling does not apply only to Palestinians, of course.
Does your jurisdiction offer employees severance pay in most circumstances when the employer terminates the employment? The right for certain amount of vacation days or the payment therefore? (about) A week’s paid vacation per year? The right for a hearing before dismissal or severe damages lacking such procedure? Other social benefits?
If the answer in YOUR jurisdiction is “no”, I’m guessing your work contract doesn’t provide for such compensations either, and it clearly states, that it is your jurisdiction’s law that will govern the employment. However, when your employee is relocated or is even temporarily employed in Israel, you may (might??) discover that he/she is entitled to much more social benefits than you intended, because the Israeli court may apply Israeli law.

So What Do I Do?

A. You do NOT panic.
B. You do NOT waive the project in Israel, because the project is great!
C. You don’t suffice with your US/Canadian /EU/other employment contract.
D. You do what you did in your “home jurisdiction”: you consult with a local attorney who knows the local labor law and you find out exactly what is required of you and prepare yourself in the best way possible.
And if you ever do get into litigation and you argue that it is the foreign law that governs – you hire a local attorney, who is also qualified in your “home jurisdiction”, and you prove the foreign law using a legal opinion filed with the court.

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