Ngo information submitted by the Association for Civil Rights in Israel (acri) to the Committee on Economic, Social and Cultural Rights For Consideration when assessing the compliance of the State of Israel under the International Covenant on



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Article 7 - The right to just and favorable conditions of work

Issue 13: Wage Differences Between Men and Women


Please provide up-to-date information on the wage differences between men and women by sectors, and indicate what measures have been taken to ensure equal pay for work of equal value.
Significant gaps in employment and employment benefits subsist between male and female workers in Israel, as stated in the State's Reports. In 2009, the average salary of an Israeli woman amounted to only 66% of that of the male worker, with the national monthly salaries of women constituting 60% of those of males, and their hourly wages 80% those of males.35

In 2009, a decline in the wage gap was documented. However, this was not a result of any actual improvement in the hourly pay of women but instead of the global financial crisis, which saw a reduction in the average pay of men. Indeed, the current government policies purported to address the wage gap between male and female workers leave much to be desired, and instead several policies even threaten to further undermine equal employment rights. For instance, because women make up two-thirds of public employees and are overrepresented in the fields of health, education, and welfare, the cuts that are done every year in the state budgets of social services disproportionally impact women workers and their salaries.36

In Israel, discrimination in the workforce is facilitated by particularly poor labor inspection services. In a response to a query advanced by ACRI, the Ministry of Industry, Trade and Labor gave the total of full-time supervisors as 48, with 61 students ‘helping out’ part-time. These employees are given the responsibility to supervise the enforcement of labor laws for a 2.8 million workforce. This is significantly below the OECD requirement of having one inspector for every ten thousand workers.37

Equal Employment Opportunities Commission
The Israel 2011 report devotes considerable space to describing the important activities of the Equal Employment Opportunities Commission (EEOC), which is the only governmental body in Israel responsible for promoting equal opportunities, combating discrimination in the workplace, and enhancing enforcement in this field. The EEOC certainly undertakes very impressive work relative to the resources it receives, but this work is nevertheless partial against the background of the needs and the level of inequality and discrimination that typify the Israeli workplace.
To the best of our knowledge, the EEOC currently has a staff of just four permanent attorneys, as well as two legal interns, a research director, and an administrative director.38 The EEOC does not have any representatives in Israel’s Southern District, which is annexed to the Jerusalem District for this purpose. The office in Haifa and the national office do not have any legal interns. The EEOC does not have a national legal advisor, and there is just a single staff position for research. There is no staff position for training and information functions. Most of the positions are filled by attorneys, who effectively function as regional commissioners in Tel Aviv, Jerusalem and Haifa.
Given this limited deployment of personnel, the ability of the EEOC to perform its functions in a broad and meaningful manner is obviously extremely limited. Understaffing impairs the Commission’s ability to undertake research, promote awareness among employers, respond to numerous requests, and pursue legal proceedings as necessary.

The EEOC was established over three years ago and has already secured considerable achievements in both the legal and the public arenas. Despite this, the government of Israel has not increased the resources available to the EEOC since its establishment. This severely impedes the ability of the EEOC to address the scope and depth of discrimination in the Israeli workplace.

In its annual report for 2010, the EEOC presented a proposed administrative structure designed to provide a firm basis for its operations. The proposal advocated additional 16 staff positions, which would bring the total number of positions to 24, as compared to just eight at present.39 The government of Israel takes pride in the EEOC’s work, but regrettably has failed to provide the necessary budgets and personnel to enable the Commission to perform its tasks.
In addition to the problem of resources, a further substantive problem relates to the EEOC’s powers of enforcement. In principle, the EEOC enjoys powers of enforcement relating to all employers in the Israeli economy, including the civil service. However, the manner in which the EEOC exercises its authority is different in the case of civil service employers.

The EEOC operates under the auspices of the Ministry of Trade, Industry and Employment, and accordingly forms part of a government ministry. Due to this status, governmental bodies have argued that the EEOC is not empowered to submit suits against the state in its capacity as an employer. This subject was brought before the attorney general, who in February 2009 issued an interim decision stating that the EEOCs authority to submit suits would not be used against government ministries. The attorney general ordered that an instruction be prepared as soon as possible regulating the EEOC’s work in this context. To date, no such instruction has been prepared, and a temporary internal procedure currently regulates the operations of the EEOC in cases when its position differs from that of the relevant government ministry. According to the procedure, any unresolved disagreement between the EEOC and a government ministry is brought before the deputy attorney general, who serves as an arbitrator for this purpose.

The attorney general also determined that the exercising of the EEOC’s authorities against local authorities and government companies requires the approval of the Ministry of Justice. The submission of indictments against private employers also requires prior authorization from the Ministry of Justice.
The obvious result of this situation is that the EEOC is dependent on the Ministry of Justice, since it effectively does not enjoy legal autonomy. In practical terms, the need to consult on every case and to receive prior authorization before submitting a claim in some cases, and the inability to submit suits against government ministries all impair the EEOC’s ability to perform its function. The EEOC was established by law with the goal of enforcing equal opportunities in employment in both the public and private sectors. Restricting the authority of the EEOC to work professionally and independently with government ministries thwarts this purpose.
The two obstacles to the EEOC’s work described above, in the field of resources and in terms of authority, impair the effectiveness of its work. Despite these limitations, the EEOC has achieved the almost impossible task of securing significant advances in equal opportunities, both by raising awareness among employers and through legal tools. Nevertheless, and as explained above, its work is partial against the background of the achievements that could be secured in this field by a strong and independent body. A policy based on a commitment to workers’ rights and to promoting substantive equality in the workplace clearly requires greater investments in this field. The body responsible for this work must be given the full budgets and authorities required in order to perform this important task.

Issue 14: Complaints to the Ombudswoman for the Foreign Workers


Please provide information on the number and nature of complaints received by the Ombudswoman for the Complaints of Foreign Workers, on a yearly basis, as well as action taken after referral to the Ministry of Industry, trade and Labor.
Exclusion of Migrant Care-Givers from the Protection of the Ombudsman on the Rights of Migrant Workers

 

In a recent legislative amendment to Israel’s Foreign Workers Law of 24.3.2010, the Israeli parliament voted in favour of excluding migrant care-givers from the protection of the ombudsman on the rights of migrant workers. It is within the Ombudsman's authority, inter alia, to handle complaints from migrant workers about their working conditions, to file civil lawsuits against offending employers and to intervene in pending cases. This legislative amendment results in the Ombudsman’s authorization to handle complaints by migrant workers employed in the construction, agriculture and industry sectors only. Migrant care-givers are not eligible to lodge complaints against their employers, except for cases of trafficking for slavery and forced labor or in cases of sexual abuse or violence. All other violations of their rights – such as matters concerning minimum wage, overtime pay, working hours, wage withholding, overall working conditions, housing conditions, health and safety, passport withholding, etc. – are not within the jurisdiction of the Ombudsman.


 

While the law remains silent on the reasons for this exclusion, statements by ministers in the Israeli Government as well as by officials in the Population, Immigration and Border Control Authority and the Ministry of Industry, trade and Labor (MOITAL) reveal the reasoning behind it. In a response letter of 2/6/2009 to Israeli NGOs, the MOITAL minister, Fuad Ben Eliezer, stated that "the decision not to apply the authorities of the Ombudsman on the rights of migrant domestic care-givers, except for cases where there is suspicion for trafficking in persons, slavery or forced labor or sexual harassment, stems from the fact that in the care-giving sector there are two weak populations the government should defend: the first, the population of the migrant workers employed in this sector; the second – the population of permit holders – the employers." The statement by the MOITAL minister reflects a populist and dangerous sentiment that has unfortunately become well accepted with Israeli policy makers. It is believed that assisting elderly and disabled care patients entails infringing upon the rights of their workers and denying them access to justice in cases where their rights are violated. Excluding a particularly vulnerable group of workers from the protection of a central institution in charge of enforcing their rights reflects an entirely misguided understanding of the State's role in enforcing the rights of migrant workers, and thwarts the goals this institution was intended to accomplish.

 

The amendment is blatantly discriminatory against women, since migrant workers in construction, agriculture and industry – the sectors where the ombudsman will be free to operate – are overwhelmingly male; Migrant workers in the care-giving sector, on the other hand, are overwhelmingly female. The de facto consequence of this exclusion is hence a "men's only" ombudsman. Excluding care-givers from the Ombudsman's protection also serves to reinforce biased notions that women performing care work are not "real" workers entitled to equal treatment and protection.


 

The organizations Kav LaOved, ACRI and Hotline for Migrant Workers have filed a petition to the High Court of Justice in May 2011, requesting to disqualify this discriminatory legislation.40 On 6 October 2011, the Supreme Court has rejected the petition. It ruled that there is a relevant difference between migrant caregivers and migrant workers in other fields of work, which justifies their exclusion from the supervisor's mandate, and that "the need to protect foreign workers does not mean causing harm to any other weak group, nor does it mean that the protection of the rights will be done while shutting one's eyes to other public and human interests."


The court has also rejected the claim that the exclusion of caregivers from the supervisor's mandate is tainted with gender discrimination: ‘We have also found it hard to accommodate the claim that this constitutes discrimination against women [...] The reason for the distinction is rooted in essential differences between the private employers in the care-giving sector vis-à-vis other sectors, and has nothing to do with gender distinctions.’   

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