Waiver of Statutory Rights in Israel Labour Law: A Comparative Analysis in Light of English and American Law

Abstract

One of the recurring issues of Israel labour law has been whether an employee may validly waive statutory rights conferred upon him. This issue had led to a head-on collision between the Supreme Court and the Labour Court, with the latter adopting a position directly contradicting the Supreme Court's precedents on this issue.On certain issues the Courts are in agreement. Both concede that a waiver is unenforceable where the employee is unaware of his statutory rights. Both concur that labour legislation is cognitive in nature and that an employee may not initially “contract-out” statutory rights conferred upon him. However where the right has already “accrued”—that is, where the employee is entitled by law to claim certain statutory benefits as a result of past employment—the Courts are in open conflict. The Supreme Court has adopted the position that an employee may waive such existing and accrued rights by agreement, may compromise them by settlement and may submit any disputed issue respecting them to an arbitrator for determination.