High Court of Justice 1898/06 Ministry of Interior v. National Labor Court Jerusalem – Courts Administration - part 16

While adopting the thesis that the time for the rigid and mathematical definition has passed, and "the prevailing approach today is that the concept of 'worker' is a complex concept, which includes various tests, to which different weight must be given different weight.  The court does not need tests as absolute criteria, but rather that each test is an indicator.  The Tribunal reaches its decision, after weighing the accumulation of indicators in each of the scales" (National Labor Court Hearing 52/254-3 Fritz v.  Mifal HaPais, 26 PDA 372) - I do not believe that the aforementioned differences, each on its own or all together, can constitute an obstacle to recognition of any of the two respondents in the petition before us as an employee.  The conclusion reached by the Labor Court with its two instances is that this is a matter of normative duality.  The practical significance is that in certain matters the Labor Court will have jurisdiction (for example, when it comes to payment of wages) and in this regard the relationship will be considered as an employee-employer relationship.  Other aspects of the same system will be examined in other courts, for example, the termination of the term of office of a deputy councillor, his election, and so on.  I accept this view.  There is no reason why an elected official should not enjoy the protection that every other employee enjoys on his salary.  As noted above, the National Labor Court referred in this matter to the matter of charity, in which it was determined that the answer to the question of whether a certain person should be considered an employee would be determined according to the purpose of the protective law by virtue of which the claim was filed.  The Petitioner argues that the very reference to the Protective Law for the purpose of deciding whether a certain employee will be considered erroneous, and thus she sees the error in the rulings of the Labor Court in its two instances.  The way the court should have gone, according to the state, is to first discuss the question of whether there is an employee-employer relationship, and only after determining that it is indeed an employee should it examine the remedy he is seeking.  I do not accept this argument.  The demand for an analytical examination of the status of the person who filed the claim and his definition as an employee is independent of the relief to which he is petitioning is nothing more than another form of demand for a rigid mathematical definition of the employee-employer relationship.  While proceeding from the assumption that the time for the rigid definition has passed, and that we live in reality and in an era of complex labor relations that take on a simplified form, it is reasonable to assume that every possible tool will be used, including the examination of the requested relief, in order to decide the question of whether a certain person will be considered an employee.  The Petitioner referred in this matter to the Halamish case, where the question of whether the Chief Rabbi of the Prison Service is an employee for the purpose of examining his dismissal from the Prison Service was discussed.  The court there did indeed rule that the Labor Court lacked jurisdiction to hear the petitioner's claim, but this was due to the existence of section 129 ofthe Prisons Ordinance [Consolidated Version], 5732-1971, D.I.  459 (hereinafter: the Prisons Ordinance), which explicitly stated that: