Issuu on Google+

From Contract Workers to Workers of Equal Status Direct Employment of the Cleaning Personnel by the Ben-Gurion University of the Negev Position Paper Presented to Prof. Rivka Karmi, President of the Ben-Gurion University of the Negev April 2010


Table of Contents

The Struggle of the Cleaning Workers at the Ben-Gurion University of the Negev: Past, Present, Future

6

Introduction

13

Chapter 1:An Opportunity for a Social, Ideological and Moral Correction

15

Chapter 1a: An opportunity for changing society and establishing the standing of the university as a leading public and educational institution

16

Chapter 1b: An opportunity for reinstating human dignity

17

Chapter 1c: An opportunity to promote the sense of recognition and belonging

17

Chapter 2: An opportunity to correct failures resulting from discrimination due to demographic characteristics

19

Chapter 2a: An opportunity to correct the gender discrimination

21

Chapter 2b: An opportunity to make a correction of the discrimination based on the status of “new immigrant”

22

Chapter 2c: An opportunity to correct poverty employment among women

24

All translation, linguistic editing and graphic design works were carried out voluntarily.

Chapter 2d: An opportunity to correct the occupational and economic status of workers in the periphery

25

Linguistic editing: Efrat Eventzur > efrat.ev@gmail.com

Chapter 3: An opportunity for correcting labor rights

28

Graphic design: Narkis Segev > narkissegev@yahoo.com

Chapter 4: Economic aspects

31

English translation: Roey Perlstein-Dvir > 052-6224542 , Atar Geldman

Bibliography

35

Partners to the production of this document The committee of the cleaning workers at the Ben-Gurion University of the Negev

Partner organizations: Power to the Workers – Democratic Workers' Union; Tzach – Students for Social Justice; The Forum for Social Justice at the Department of Social Work, the Ben-Gurion University of the Negev; Shatil; Adv. Itach-Ma'aki, Jurists for Social Justice, Bema'aglei Tzedek

Academic counseling: Dr. Yani Nevo, Dr. Gili Baruch, Prof. Yulia Mirsky, Eitan Michaeli, Orna Amos, Dr. Roni Kaufman, Prof. Niza Yanay, Prof. Henriette Dahan-Calev, Tal Baharav, Becky Cohen Keshet, Dana Tor The Human Rights Clinic, Tel-Aviv University

Printing:

2

3


Abstract This position paper presents a series of arguments – social, ideological, and practical – for returning to the method of direct employment as the major means of employing the cleaning workers at Ben-Gurion University of the Negev. The position paper is addressed to the management of the university and to the person heading it – President Prof. Rivka Carmi. This document is the outcome of the unique and consistent activity of a community coalition working in Ben-Gurion University, which includes students, lecturers and cleaning workers. The coalition was formed in order to fight the indirect method of employment of the cleaning workers: employment through contractors, which we find offensive and exploitative.

Background

Since its establishment in 1969, and up until 1992, Ben-Gurion University of the Negev employed its cleaning workers, men and women, directly as part of the university’s logistics department. In 1992 the university management decided to transfer the cleaning workers to contractor companies, with the purpose of cutting costs and improving economic efficiency. In 2005, students and lecturers from Ben-Gurion University began researching and collecting data regarding the terms of employment of the cleaning workers at the university. The data revealed that the workers had no occupational security or occupational continuity, and that an overwhelming majority of the workers was employed by the contractor companies on only a part-time basis, and did not receive the social benefits due to them by law. At the beginning of 2005 the members of the student organization Tzach approached the management of the university with a request to rectify the situation. President of the university, Prof. Rivka Carmi, replied that: “the university does not employ workers through contractors. The companies mentioned are companies that provide the university with services, and not workers.” It was later found that the university had signed loss contracts with the two contractor companies which were based on the employment of workers at below the minimum legal standards, and was thus directly responsible for the exploitive terms of employment by the contractors. In light of the response of the university and its formal position, the members of Tzach, with the assistance of lecturers, initiated an extensive protest against the policy of the university. In 2007, about a year and a half after the struggle began, the university decided to toughen its requirements of the contractors, but without changing the method of employment. In light of the increasing pressure, and the requirement of the university that the contractors operate lawfully, one of the contractors decided, in the summer of 2008, to fire all 150 workers in their employment, since they claimed that the university did not pay them enough to employ them legally. This act of termination constituted a turning point in the struggle. The cleaning workers began a protest strike in front of the offices of the university management. This strike was joined by students and lecturers, and the struggle was joined by many other organizations. This coalition included Tzach, the Forum for Social Justice at the Department of Social Work, the ItachMa'aki (With You) Organization – Jurists for Social Justice, the Forum for the Protection of Higher Education, and the Shatil Organization. The strike also saw the beginning of the formation of a union of cleaning workers, for the first time in Israel. The Power to the Workers (Koach laOvdim) organization joined the coalition of organizations in the struggle of the cleaning workers as the representative organization organizing the workers, and put at their disposal a legal and organizational infrastructure to support their struggle. In the summer of 2009 the cleaning workers suffered the worst blow. The management of the university imposed a reduction of 30 to 40 percent of the cleaning hours allocated to the contractors without reducing the cleaning load; in practice work in the field only increased with the construction of two new research buildings. Following the reduction, workers were laid off for lack of hours, and those who remain are required to complete the work of their colleagues who were terminated in fewer hours. 4

Structure of the document This position paper lays out the social, ideological and practical arguments for returning to direct employment of the cleaning workers, and it includes four chapters. The first chapter of the document examines the injuries against contract-workers in general and contract-workers in the cleaning field in particular on a moral, ideological and humane background. The main argument is that non-recognition of the cleaning workers as part of the community of university employees is a means for controlling the workers and for expropriating their labor, while abandoning them as human beings. The second chapter of the document relates to the cleaning workers as a disempowered group, suffering from discrimination because of their demographic characteristics. The main argument is that direct employment of the contract-workers at the university will effect a correction of the wrongs that are caused due to gender, wrongs originating from discrimination against new immigrants, wrongs related to the patterns of employment of poor women, and wrongs resulting from occupational distortions, which harm employees in peripheral settlements. The third chapter lays out legal arguments supporting direct employment, and it argues that only a transition to direct employment will ensure for the workers the status and accessibility to the rights denied from them today. The fourth chapter lays out the economic arguments in favor of direct employment, and it argues that there are no grounds for claiming that the direct employment of the workers will necessarily be more expensive for the university. 5


Since its establishment in 1969, and up until 1992 Ben-Gurion University of the Negev employed its cleaning workers, men and women, directly as part of the university’s logistics department. In 1992 the university management decided to transfer the cleaning workers out of its responsibility to contractor companies, with the purpose of cutting costs and improving economic efficiency. As part of the change it was decided that the supervisory staff responsible for the oversight and professional management of the cleaning duties should remain university employees, and such is the situation to this day. Since the change in 1992 and up until today, 2010, the cleaning workers at Ben-Gurion University of the Negev are employed in a relationship of exploitation, underpayment and intimidation on a daily and methodical basis. This method is part of an offensive manner of employment, which is spreading not only at Ben-Gurion University of the Negev, but throughout the Israeli labor market – including the official institutions of the State of Israel, the private sector and the public sector – and is known as “contract workers”.

Past (1992-2005):

The Struggle of the Cleaning Workers at Ben-Gurion University of the Negev: Past, Present, Future Tal Baharav - Tzach

In 2005, students and lecturers from the Ben-Gurion University began researching and collecting data regarding the terms of employment of the cleaning workers at the university. Their investigation showed that over the years 1992-2005 more than 250 cleaning workers were employed at the university through two different contractor companies (“Eitan Shamir, Ltd.” and “Notrei Zion”); that over 85% of the workers who were employed in cleaning over the years resided in the Negev; that an overwhelming majority of the workers were new immigrants from the FSU, and a minority were immigrants from the Ethiopian community; that other employees were mostly of a low social-economic standing, many of them sole providers and single parents residing in the Negev; and that a large portion of the employees was intermittently employed through the contractor companies for a period of 5 to 20 years. The investigation further revealed that since the transition to employment through contractor companies all of the employees were laid-off every nine months and re-employed at the same position following the summer vacation. It was found, then, that these women worked at the university with no occupational security or occupational continuity, when during the summer they were forced, on a regular basis, to suffer the loss of a crucial income. The investigation showed that a large majority of the workers was employed by the contractor companies at only a part-time position (between 4 and 6 work hours daily), and that all of the aggregative social benefits (due to them by law) were not aggregated at all, and they never received them. Thus they were not entitled to allocations to a pension fund, seniority increments and holiday payments. In addition, it was found that they were also deprived of all other social benefits, including vacation days, travel expenses, sick days, payment for national holidays, allocation for severance pay, and payment to the National Insurance Institute. Due to this deprivation of rights the workers were liable to remain, after retiring, with no economic basis for their existence, all this after working for over 20 years at the university. The data also showed that both contractor companies regularly used additional methods to exploit and rob the cleaning workers, which included arbitrary fines, they claimed were due to the quality of the cleaning or for failures to clean; docking payment for their work clothes; methodical docking of work hours that were taken from their salary – despite the workers’ protest; as well as the collection of a “gift fee” from the salary, without providing any gift, or a gift equivalent to the sums collected from the workers. The contractors, then, were robbing the workers on a daily and regular basis, and out in the open. In addition to all of the above, it was found that the workers suffered from immense fear and

6

7


intimidation, since workers who had complained of any breaches or exploitation – whether directly to the contractor, through the university’s logistics department or through the representative of the Histadrut in the Negev region – were immediately fired, and even received threats that they will not be able to find any other work in the Negev. The perpetual fear the workers suffered was vividly demonstrated when most workers refused to even speak to students or lecturers on the subject of the manner of their employment or of their social benefits, despite recurring attempts. It was evident that the workers were deprived of the right to a dignified life from the day they were transferred to the service contractors. The main question that arose from the grim state of affairs was: how could it be that Ben-Gurion University of the Negev, a public institution that had raised the banner of social responsibility, chose such an offensive method of employment, which so consistently deprived workers of their rights.

Present (2005-2010): At the beginning of 2005 the members of “Tzach – Students for Social Justice”1 approached the management of the university with a request to receive explanations for the phenomenon of exploitation occurring daily at the university. At first the students received no reply at all to their approach, and they were told that the management of the university deals with academic issues, and that if there was any problem the students may approach the contractors. In light of recurring requests, the university delivered its formal response and position: the university claims that there was no problem with the employment of workers in its service, and does not recognize any cleaning worker as its employee – since the university purchases cleaning services and not human labor. The letter of response from the President, Prof. Rivka Carmi, dated July 12, 2007, stated that: “the university does not employ workers through contractors. The companies mentioned are companies that provide the university with services, and not workers.” At a different event a senior figure in the management of the university even suggested to the members of Tzach that if they indeed cared for the workers they were welcome to collect donations from the students for the cleaning workers. In light of this ideological position of the management of the university, an extensive and thorough investigation of the issue was initiated, which continues to this day, and includes a close and continuous connection with the workers, tracking down documents, follow-ups on pay slips, and more. According to one of the most important findings, the university had signed loss contracts2 that were unusual in their offensiveness with the two contractor companies that worked for it. Fur purposes of illustration, in 2006 the university had paid the contractor NIS 24.05 for each cleaning hour, while according to the computations of the accountant general, in a contract that was not a loss contract the relevant employer's cost for that year was NIS 27.58 for each hour. This figure shows that in order to pay the workers the minimum wage required by law, the contractor would have had to spend the sum of NIS 3.53 out of their own pocket for each work hour (not including any computation of profit for the contractor or the company they owned). The findings regarding the loss contracts show that in fact, it is the university that directly causes the terms of exploitation by the contractors. However, despite the direct responsibility resulting from these contracts, the university continued to hold its proclaimed position towards the workers, and continued to treat them as transparent workers.

8

1 A group of students working voluntarily at the university in a number of areas related to social justice, such as accessibility for the physically handicapped at the university and the prevention of sexual harassments. 2 A loss contract is a contract in which the customer does not pay the performer of the service the minimal sum required for the performer of the service to be able to act lawfully, and still earn a minimal overhead.

In light of the response of the university and its formal position, the members of Tzach, with the assistance of lecturers, initiated an extensive protest against the policy of the university. The objectives of the activity were, and remain, to improve the terms of employment of the workers, to end the offensive method of employment through contractors, to reconnect the threads that connect the employee, their employer and the workplace, and to end the extreme injustice manifested in the attribution of the titles "services" and “temporary workers” to the cleaning workers, some of whom had been working at the same campus, for the same contractor, for over ten years. The protest activity included demonstrations, letters and petitions signed by lecturers and students, organization of conferences, an extensive exposure to the media of the blunt breach or rights, creating a lobby of Knesset Members supporting the issue, raising the issue in the Knesset and at the Education Committee of the Knesset, collection of information, maintaining connection with the cleaning workers, and more. This activity received public recognition in the form of the Knesset Speaker's Prize for Quality of Life awarded to the Tzach organization. In 2007, about a year and a half after the struggle began, the university decided to toughen its requirements of the contractors, but without changing the method of employment. The university signed new contracts with the contractors in 2007 which stopped the termination of the workers' employment every nine months, appointed an ombudsman for the cleaning workers to ensure the establishment of an oversight mechanism for the pay slips (a promise which has not been put into effect to this day), and the beginning of payment of part of the social benefits to the workers – while still completely ignoring the thousands of Shekels deprived of each worker during the years since their transfer to the contractors and up to 2007. In light of increasing pressure, and the requirement of the university from the contractors that they operate lawfully, one of the contractors ("Eitan Shamir, Ltd.") decided, over the summer of 2008, to fire all 150 workers in their employment, since they claimed that the university did not pay them enough to employ them legally. This act of termination constituted a turning point in the struggle for the rights of the cleaning workers at Ben-Gurion University of the Negev. The world of the workers who received dismissal notices collapsed, and facing the terror of remaining unemployed and the sense of insult they began a protest strike in front of the offices of the university management. The strike was joined by students and lecturers, and the struggle was joined by many other organizations, all of which will have a significant role down the road. The coalition of organizations that was established included the Forum for Social Justice in the Department of Social Work, the Itach-Ma'aki (With You) Organization – Jurists for Social Justice, the Forum for the Protection of Higher Education, and the Shatil Organization. All of these supported the workers in their strike and their just struggle to be included as full-fledged employees of the university. The strike also saw the beginning of the formation of a union of cleaning workers, for the first time in Israel. In light of the strike of the workers who were terminated and the public pressure applied by the partners to the struggle on the university, the management of the university intervened and assured the workers that they will be returned to work, and that their rights will not be infringed. Applications by students and lecturers to the management of the university to try and find another solution to the grim situation the workers faced, such as their inclusion in the Logistics Department of the university or the establishment of a workers' cooperative accompanied by lecturers and students were rejected. The university contacted both contractor companies and offered to raise the hourly pay in both contracts with the contractors. Thus, the contractors received more money for every cleaning hour, the workers' pay slip included more benefits, but the offensive method of employment remained the same, and the situation of the workers worsened. Alongside the accomplishments, new phenomena began to raise their heads. From the day the workers returned to their cleaning jobs, under the same contractors, informal pressure to weaken the workers, and even more so to prevent their unification, were applied. As 9


a result, out of ten workers who volunteered to serve as a temporary works committee, within a week only one worker remained. All other workers attested to pressure and threats that they will be terminated should they participate in the workers' organization. In 2008 and 2009 this representative, with the assistance of the supporting organizations, struggled for his position as chairman of the committee. The unofficial harassments included his transfer from his position: from a position requiring the distribution of the cleaning supplies, which is considered physically easier and allows movement, to actual cleaning, and later on to a work location that was off the central campus and removed from the workers, with whom he had created contacts of acquaintance and work. This single member of the committee was even "rewarded" with a double work load, a blunt and humiliating treatment, as well as threats and intimidations from the employers. These actions were taken in an attempt to make him resign on his own, and later on he was even sent a notice of dismissal. An extensive and harsh protest by the partner organizations in the coalition and the workers prevented his termination, and the representative was reinstated following the intervention of the university – though this included a further worsening in his terms of employment. In the meantime, the workers began organizing within a representative organization. The workers fiercely refused to be members of the Histadrut, claiming that in the past several of them lodged a complaint with the Histadrut representative, and were fired the next day, despite the fact that a handling fee was deducted from their salary for the Histadrut, and in light of the lack of intervention by the Histadrut in the repeated breaches of the terms of employment. The workers' unification as part of the organization "Power to the Workers" led to the joining of the organization to the organizations' coalition as a representative organization. As such, Power to the Workers, places at the disposal of the workers a legal and organizational infrastructure to support their struggle. The process of organization was difficult and tiring. The university and the contractors refuse to recognize the workers' struggle in general and their organization as part of Power to the Workers specifically. The workers, disenfranchised and oppressed for many years, faced unpleasant pressures and threats. Only after an entire year did the workers from "Eitan Shamir, Ltd." succeed in unionizing (workers in the other company, "Notrei Zion", still do not have a representative organization). As part of the unionizing process democratic elections were held for a permanent representation of the workers. The moving event was also accompanied by much difficulty, as the workers who submitted their candidacy faced direct threats by the employer. However, all threats and attempts of intimidation were thwarted, and finally 16 workers submitted their candidacy. From these, for the first time in Israel, a committee of cleaning workers, numbering seven representatives – men and women – was elected. To the joy of all partners, the event was the catalyst for many of the workers at the "Notrei Zion" company to join the organization . However, till today, about 50 of the "Notrei Zion" workers remain unorganized. After the committee was elected, its members were trained for their position by a guide from the Shatil organization accompanying the workers' organization, and accompanied by a representative of Power to the Workers. The committee began organizing various activities to strengthen the acquaintance and solidarity among the workers, such as trips and parties, and acted to decrease exploitation by collecting complaints from the workers (actions which till then were organized by workers from the various organizations). In addition, the committee demanded from the contractors to hold negotiations regarding de-facto breaches of rights and failures to fully uphold employment laws. Despite being employed under exploitative conditions for the past two decades, the cleaning workers at the university feel themselves to be part of the institution which they have been cleaning persistently, efficiently and with dedication for years. The workers' committee believes, as do the workers themselves, that direct employment is the right way to solve the issue 10

of the offensive employment in the long term. In the summer of 2009 the status of employment of the workers deteriorated following actions taken by the university. The management of the university imposed a reduction of 30 to 40 percent of the cleaning hours allocated to the contractors. Even though the management of the university declared that at the same tame it will also reduce its requirements, in practice work in the field only increased with the addition of two new research buildings to the university. This step brought the characteristics of ancient physical slavery back into the buildings of the university. Following the reduction and the increase in demand from the remaining workers, the workers are forced to clean 1.5 times more, and even double what they used to clean in the past, in the same number of hours, or even in less. The daily quota of work hours for each worker was reduced from 4 to 6 hours to 3 to 4 hours. It is no wonder then, that the workers report a sense of stress and anxiety to complete their cleaning: not to fall off their feet, just one more classroom, another corridor, another toilet, a lecturer's office, only two more hours. Alongside fear of termination, the workers felt even more keenly a sense of humiliation: once more the university had made its loyal employees transparent. Today only 210 cleaning workers are employed at the Ben-Gurion University of the Negev. These workers, who have chosen to go out to the labor market and provide for themselves and their family with dignity, earn about NIS 1,500 on average, rise each morning at 4:30 AM, and usually continue on to a second and even a third job. These workers, who have been cleaning the university for the past five, ten, fifteen and even twenty years, are collapsing under the burden of the physical labor. The corridors no longer hear even the minimal aspiration to earn the minimal wage, as stated by law; it is only basic humanity they seek. Why are they being punished? they ask. Their only wish was to earn a dignified living and to be part of the institution in which they work, of which they are an integral and daily part – permanent employees to all intents and purposes.

Future: "A nation that knows not its past, its present is meager and its future lost in the mist." (Yigal Alon, 'Sand Screen') This chapter was written during Passover of 2010. In our past we were a nation of slaves, so we read each year in the Passover Haggadah; our present is meager, very meager. NIS 20.7 is the hourly wage of the cleaning workers, for an hour which is hard, very hard; our future is lost in the mist, a mist that blinds us with terms such as "economic profitability", and prevents us from seeing the unfortunate truth: In Israel of 2010 there are workers who are subjected to the bitter conditions of slavery. The future is the future of us all: the circle of poverty or of sustainability of tomorrow will be made up of the children of the workers and their grandchildren, of our children and our brothers. We are all together in the same misfortune, and we all have the ability to aim the beam of light at the transparent workers, to drive them out of the darkness, out of transparency and of neglect and into the light, to a new life. It is in our power to provide them with a life that is decent, rightful and legal, and to allow them to make an honest living and to live with dignity off their toil. As we looked deeper into the issue of contractor workers at Ben-Gurion University, we reached a single conclusion: the chances of preventing injustice depend upon changing the method of employment at Ben-Gurion University, as in every other workplace. Hence we call for a transition from indirect contractor work, which is offensive and exploitive, to direct employment, 11


which is fair and respectful towards the workers – both men and women. The Ben-Gurion University of the Negev is hereby invited to serve as a lighthouse marking the proper way in the heavy, thick, mist of our future.

Introduction:

During the last decades, the Globalization and its consequent transformations of the Israeli economy and society have created significant changes in the labor market in Israel. Multinational corporations have greater impact on the local economy, many organizations are in the process of change and the demand for economic efficiency increases, while values such as organized work and solidarity are pushed aside. Workers' mobility becomes commonplace, the state promotes the privatization of public services for economic efficiency, individualism is progressing and free competition has become a basic constitutional right.3 The economic transformations led to the intensification of inequality between different types of workers in Israel, created destructive patterns of employment, brought a considerable reduction in the protection of workers' rights and reinforced the potential for exploitation of disempowered workers. It seems that in many cases, the process of privatization and increasing efficiency has not contributed to increasing productivity but to renouncing the state's responsibility for the terms of employment of many public service workers. In recent years, there has been an expansion of the contract employment pattern. The triangular employment mechanism has become a profitable "business" in the short-term for all participants, except for the workers themselves. While contract workers in European countries constitute less then 1% of all workers in the economy, their rate in Israel is almost 10%! This employment pattern is not implemented only in commercial companies; 45% of contract workers are employed in the public sector and violation of their rights is also very common in the government and its branches. Contract workers are mainly members of the weakest classes of the labor market, including women, new workers in the labor market - young workers or immigrants - and people with 12 years of education. Those people are employed primarily in maintaining security, cleaning, catering, call centers, clerical work and typing, and most of them earn minimum wage. Destructive employment is enabled by indirect relations between worker and workplace, in which there are no employee-employer relations since it is regarded as buying an external "service". Thus we find a government wearing two hats, one of the employer and the other of the regulator. As the regulator, it should protect the constitutional rights of the workers. However, this government prefers economic considerations as the employer. Indirect employment changed the bilateral system between employee and employer, into a relationship involving three parties: employee, contractor and the organization, which requested the work. In this form of employment, the work agreement of the employee is signed between them and the contractor, which pays their wages and other employer payments. The actual employer pays the contractor a preset amount. During the contact between the contractor and the user, the employee is at the user's service and under their supervision, even though they are formally employed by the contractor.4 Originally, outsourcing was intended for moving certain activities within the organization to companies that specialize in different roles such as cleaning. 3 From "working without dignity – workers rights and their violations", Lawyer Michal Tajar The Association for Civil Rights

12

in IsraelR. Ben Israel, "The administrative privilege (the prerogative) of the employer", Law Review 25, 2005: R. Ben Israel, "Social Justice in a post-work era" (Ed. M. Mautner), 2000: A. Gross, "How "Free Competition" became a constitutional right", Law Review 23, 1999. 4 R. Nadiv, Manpower Contractors in Israel working in permit, Administration and planning, Research and Economics in the Ministry of Industry, Trade and Labor, March 2005.

13


This is part of the trend to advance to flat and slim organizations in order to achieve maximum administrative flexibility with a minimal number of management workers and in order to enable the organization to prepare itself for situations of uncertainty, temporary projects and to change in needs and in work extent.5 However, today this employment pattern is designated to reduce wage costs and to overcome the limitations of standards and jobs. Thus, under the auspices of administrative flexibility and progress, the employers reduced their expenditure at the expense of the employees. This position paper presents the social, ideological, moral and pragmatic arguments for direct employment and calls for Prof. Rivka Carmi, the President of the Ben Gurion University of the Negev, to be a pioneer, leading and setting an example for all universities and other employers in the labor market: a model of social responsibility, head leadership of the development of the Negev, a life of dignity for the southern residents and providing equal opportunities. Making the necessary, appropriate and required move to directly employ all contractor workers at the university, and cleaning workers in particular.

Chapter 1 An Opportunity for a Social, Ideological and Moral Correction

5 14

Ruth Ben Israel, Outsourcing: Workers employed by Manpower Contractor, a different interpretation, converting a formal employment with authentic employment, The Annual of Labor Law 7 (1999) 5: A Glin, Outsourcing: Organization and Management Aspects, The Annual of Labor Law, 7

15


Chapter 1a: An opportunity for changing society and establishing the standing of the university as a leading public and educational institution A tri-partisan employment pattern may include a formal work contract signed between the employee and the contractor, and not between the employee and the actual-user of their labor. This may absolve the actual-user (the university) of legal liability for the terms of employment of the employee (and from the formal status of an employer), from an ethical-moral perspective the actual-user of the labor of another is their employee, and is not absolved of the moral responsibility to the terms of their employment, and for the full upholding of the humanity and rights of the employee. Sentence is too long, confusing, needs further editing. . The relationship created from the actual-use of the labor of a person forms towards them the same moral duties applied to any employer towards their employees, since these duties are created by force of the fact that the employee is not an object or a commodity, but a free human being created in G-d's form, whose livelihood comes from their labor, and no one has the right to use them or their labor without their free and full consent. This consent is expressed in the work contract. However, the actual-user, who does not have a contract signed with the employee but only with the contractor, is not morally absolved from receiving the consent of the employee, and without this consent they are actually using labor that is not free in the full sense of the word. The duties of the employer apply, then, to anyone using the labor of the employee. It is not the formal work contract, which attributes rights to the free employee, and thus binds the actual-user of their labor with duties, but the status of the employee as a human being and as a citizen in a democratic society, which had abolished as inhuman all forms of labor that isn't free, which turns the work contract into a moral requirement, which anyone using the labor of the employee must respect. Arrangements which absolve the actual-user from the need to sign a formal work contract are arrangements of moral shirking: even if they are legal, they actually encourage labor that isn't free. Contractor workers are prevented from contractually determining the terms of their employment (of which the actual-user benefits), and from the realization of some of the elementary rights of employees in a democratic society. These workers are not to be viewed, as required by a moral employment, as free employees in the full sense of the term. Their labor is not free labor, since they do not have any standing in the determination of its terms, and the user of their labor does not have any binding contract with them, or the responsibility of an employer towards them. The fact that institutions such as the university make use of labor that is not free constitutes a moral blemish. It turns these institutions – those actual-users of labor that is not free – to agents of injustice, abuse, exploitation, and social ruin, which deteriorates the "labor market" from a free civilian market to a wild site of all out war. This behavior is especially improper from a university institution. As an institution of higher learning, of research and of science, a university is of its nature a liberal community, founded on values of freedom of expression, of thought and of creation. However, freedom is indivisible, and a university that grants academic freedoms to its teachers, and freedoms of expression and learning to its students, but deteriorates its actual-employees to a state of loosing their rights, to labor that is not free, and to enslavement to contractor-lords, is not a liberal community but a school for oppression and exploitation. Even its students will soon enough realize that the pretense of freedom the university states in public have no "coverage" in its actual behavior towards its own employees, and instead of experiencing with civic-democratic values, that only amongst which can knowledge thrive, will internalize the inconsistency of un-free employment by an actual-user, which speaks highly of civic freedoms. These students will leave the institution upon concluding their studies full of cynicism, lacking any civic model, and with no proper democratic direction. This is not the manner in which the university should educate the young citizens entering its gates. 16

We call upon the President , Prof. Rivka Carmi, to strictly observe the values of free labor, and not cooperate with the actual-usage of employees, who are not employed by it in a formal and contractual manner, while shirking the duties of a civic employer in a democratic society.

Chapter 1b: An opportunity for reinstating human dignity The erosion in the rights of employees by indirect employment through a contractor is expressed not only in the harm to their wages, but also in the "commodification" (the process in which all products which we consume become commodities) of their labor and in the disregard to the human agent behind it. As one of the human resources managers in the public sector stated: "The contractor could carry out the job with little gnomes, with robots, with fairies and magicians, I couldn't care less." ( Gutslav Binyamin, 2006). (1) Well, the "little gnomes", "robots", "fairies", and "magicians" are human beings. The contractual pattern of employment was created in an attempt to provide the employer with all of the advantages and benefits that can be produced from the manual labor of human workers, while sterilizing the personal and human aspect of the work-relations, and while shirking the duties and the "headache" that come with "handling" human beings. In the "new" organizational culture the contract workers are termed "services" or "manpower services", and the university had turned from an "employer" to a "user" ( Bauman, Zygmunt, , 1998)/ We call upon the President, Professor Rivka Carmi: reinstate the sense of dignity of the cleaning personnel in the university, and serve an example of humane and ideological leadership, while providing the students, and the entire society, an example for taking responsibility for the fate of employees, who are not commodities or objects, but human beings.

Chapter 1c: An opportunity to promote the sense of recognition and belonging Prof. Niza Yanay The nature of the emotional belonging to the organization is always derived from the manner in which the workers are employed, from the form of their legal belonging and terms of imployment. The legal aspect of employment, which is expressed in the formal employment contracts of the workers, is not unrelated to its emotional aspect, despite the common separation between the two. A sense of belonging is derived from a policy of inclusion and of recognition. The employment of the cleaning personnel as contract workers is a form of exclusion them, equivalent to saying, “you do not belong”, or “you work for us – not with us; or employed at the university – but not by the university”. This is not merely a saying, but an actual policy, a policy of “non-belonging” and of unaccountability. The indirect employment is an exertion of bio-political force on the workers, who are left precarious and lacking the protection of the university. Due to this policy, the workers are simultaneously present and not present at the university, working from the inside and yet from the outside; included yet excluded. Questions of inclusion and exclusion, belonging and non-belonging, of recognition and nonrecognition, are not merely theoretical questions; they are questions of life, of the life we imagine for ourselves and for others at our workplace, a life that is enabled for ourselves and for others at our workplace. Thus, the struggle for belonging and for recognition is the struggle for the life that is possible: “The important thing,” say the workers, is “that what we do is appreci17


ated and that we are respected as human beings”6 (Rosen and Pine, 2010). This saying requests recognition in them as human beings. Being recognized by others is an existential necessity, and constitutes a precondition for a sense of self. A person deprived of recognition, a woman who experiences non-recognition, also experiences an injury to the self and to her sense of selfappreciation (Benjamin, 1988). Not recognizing the cleaning personnel as part of the university’s community of employees is a means for controlling the workers, for appropriating their labor, while abandoning them as humans. In the terms coined by Giorgio Agamben (2003), the cleaning workers become abandoned workers, workers who do not belong – and at the same time belong to those who do not belong, to those who have no place of their own. Thus, with no representation and no voice, they are exposed to symbolic violence and to actual violence, losing all status and becoming subjugated socially, economically and psychologically. The exploitation of the cleaning workers employed by a contractor is not only economic, but also exploitation that is derived from the lack of recognition in them as university employees: although they work at the university itself, the rules of belonging to the university are suspended in their case. This is exploitation that is derived from their non-belonging, from the fact that they are kept in a liminal state and space. There is a need, then, for a twofold recognition: recognition of the fact that the rules of belonging (the manner of employment) on the one hand, and the sense of belonging on the other hand, are two factors that condition each other. Thus, recognition and belonging become two interdependent variables in a dual relationship, one side of which is recognition of the employee, and the other – the understanding that non-recognition means exploitation and abandonment of the employee. Hence, non-recognition is not to be distinguished from exploitation and oppression, since “human dignity” and the “institutional dignity” are linked to each other, and both are linked to the rules of employment.

Chapter 2 An opportunity to correct failures resulting from discrimination due to demographic characteristics

Moreover, when the worker is employed, but excluded from belonging, they are precluded of the right to be a “citizen” of the institution; they are prevented the possibility to voice a will, to speak, to organize, and to freely protect themselves. The split created by the university between recognizing the cleaning workers as workers at the university, and between not recognizing them as belonging to the university, is an ideological split; it is equivalent to consent and capitulation of the university to an exploitive occupational ideology, which should not receive the support of any institution, let alone the university, which perceives of itself as an institution that strives to advance and create social and regional change. The struggle for recognition and for belonging must be seen as a struggle for economic and for social justice, and the two must walk together (Olson, 2008). We call upon the President, Professor Rivka Carmi, to grant the cleaning workers the option of being full-fledged citizens of the university, to allow them to be part of the community of direct employees of the university, and to prevent their abandonment to the force and logic of an exploitive power, which does not respect them and does not respect the university.

18

6 From the statements of Sharona Tzur, a cleaning worker at the Tel-Aviv University employed by a cleaning services contract company.

19


The demographic characteristics of contractors` workers employed in fields such as security and cleaning indicates that these workers are explicitly a vulnerable population needing protection. For example, a research regarding cleaning workers, found that women are the vast majority of the workers in the industry; most of the workers have a low socioeconomic background, with an emphasis on the Arab population and Russian immigrants; the education level of the workers is low (up to 12 years of education, usually less); workers are in different ages, however there is relatively high concentration of young workers (up to age 25) and adults (over age 50); some places employ working immigrants7. In addition, a research conducted by the Ministry of Industry, Trade and Labor, regarding guards and security guards, found that 28% of all workers in the guarding and security industry, including 45% of all guards and 20% of all security guards, are immigrants who arrived in Israel since 1990, mostly are from the former USSR. This is as opposed to 18% immigrants among all workers in the labor market.8 These demographic characteristics are closely tied to the workers` very limited ability to protect their rights through labor courts. Our experience in the field reveals that many workers are not aware of their rights. Our impression is that the main reason is lack of accessibility to reliable and clear information regarding labor laws in a language which is clear to the workers, especially due to lack of knowledge in Hebrew and sometimes due to insufficient education. Moreover, we found that workers who were aware, if only partly, of the violation of their rights, tended not to submit a claim in order to fulfill their rights. Some were concerned that if they will submit a claim against their employer, he will harass or even fire them. Others were concerned that they will develop a reputation as “troublemakers” and therefore, other employers will not hire them. Furthermore, we met workers who think there is no reason to check their rights because they believe that knowing their right or submitting a claim will not change their situation! This perception, that a law suit is not effective or even dangerous, creates a psychological block against submitting a claim and brings many workers to accept their rights` violation and their situation resignedly.9 The weakness of the workers greatly increases the possibility (and the temptation) to exploit them. Because, among otherthings, employers know that the workers will have difficulty to stand on their legal rights due to their limited accessibility to trial and in recognition of the sub enforcement of the government monitoring mechanism.10 Therefore, a proper judicial government policy should prevent the temptation and the gate to the exploitation of these weakened workers.

____________________ From Avishai Benish & Roie Tsarfatie, Ma'asei Mishpat, Vol. A, Published at Tel-Aviv University, January 2008. 7 Kapaim Association's report _____; Transparent workers report, __________. For the demographic characteristics of the guards and security guards see: Shuki Handles, Guards and security guards in Israel 1995-2003, Administration and planning, Research and Economics in the Ministry of Industry, Trade and Labor, 2004. Available at: http://www.moital.gov.il/NR/rdonlyres/C2755515–EFD5–49B3–8221–255D690D2099/0/X6169.doc. 8 Handles, above, p. 9-10. 9 Transparent workers report, above footnote 7, p. 9. Those finding are coincided with the theoretical framework of the NBC model, above presented, regarding the blocks which stand in the way of individuals who wish to fulfill their legal rights (see above footnote 6). 10 This is indicated by the fact that the Department of Labor Law Enforcement at the Ministry of Industry, Trade and Labor has until recently only about 20 inspectors (which works in pairs!). See the State Comptroller Report, Annual report 54b 841-820 (2004); Daniel Gottlieb, Obedience to Minimum Wage Law and its Enforcement in Israel 110 (2000).

20

Chapter 2a: An opportunity to correct the gender discrimination Prof. Henriette Dahan-Calev The legal system in Israel faces difficulties when attempting to protect workers` rights, while women workers' rights is even more difficult. At the margins of the labor market there are the poor workers, amongst which women are a majority. A large number of these women function as the head of the family, often single-parent families or families in which the main provider is the female. The victims of this sad situation are revealed mainly in the margins of the society, at the bottom of the economic scale and especially in the peripheral areas of Israel. Does Feminism have a cure for the unbearable conditions of existence of the women at the bottom of the scale? More specifically, does Feminism have something to offer for the women who clean our places in humiliating existence, employed by human resources contractors under the auspices of the state and its institutions, including ministries, universities and campuses? What is the Feminism that we, female intellectuals and women scholars from the university, have to offer for the cleaning ladies on campus? Can we speak for them? Can we make space for them? Among the women interested in women's sisterhood in Feminism, many belong to upper middle class social strata. Often their activity takes place at the university. In our case, it is the University of the Negev, a university of an area defined as the periphery of Israel. Feminists from hegemonic groups, whose economic status is well off or somewhat less, believe in alliances and cooperation between women as the way to promote and intensify the way to equality. Our Female President Prof. Rivka Carmi is no exception: she has placed this ideal on her presidential platform declaring that her agenda shall give priority to feminist issues. But at the other end of the scale, the cleaning ladies at the Ben-Gurion University are sub-proletariat. They walk the halls as transparent figures that until the struggle they held three years ago with the support of a small group of students and lecturers, their statuses were trampled and the contractor employed them with no social rights and with a constant dismissal threat hanging over their heads. This struggle shed some light on the exploitation mechanism that was activated by the cleaning contractors within the university and even marked an achievement by partly restraining the power of the contractors. But still, the wage that the workers receive from their employer, the contractor, which mediates between them and the university, is unable to provide them with actual purchasing power. Neither does it provide them with a chance to escape from the poverty cycle or to secure their future to become workers whose dignity is returned to them when earning their wage. This situation does not prevent them from being women, human beings with dreams for themselves and for their family members - who someday might be able to earn their wage with without losing their humanity, fulfill their desires for education, growth and progress. To whom can these workers turn to? We feminists would like to believe that they can turn to us and trust our support. After all, we carry the name of sisterhood and we fight to present the best intellectual arguments to convince that we are right. But for some reason, it does not happen the workers do not find the way to turn to us, even though we raised the banner of our duty to support our weaker sisters, as did the President of the university. But no, the workers are subjected to social patriarchal relations with their employer, the contractor, and not with us. This is because the contractor, and not us, is the driving force of the mechanism of their livelihood. This is the mechanism that is working while the workers are being exploited. The parties which make this mechanism work are the state, its public economic systems and the universities which have an agreement with the contractor and enable the exploitation, as stated, under its auspices. We, female feminist can either remain a silent actor or become a significant feminist agent of change. Being subjected to a work relation status in which all the workers can do is to survive through fully waiving all rights and under a terrifying threat that should they speak, they will lose their jobs, how can the cleaning ladies know they have sisters? How can they tell that with21


in the hegemonic social groups, there are those who carry the name of sisterhood? Sometimes in vain!! How can they know that there is a feminist platform that works for the liberty of women and fights to protect their human dignity? We, the well educated females can speak for them; we can also open space for them to allow them to speak their words. Perhaps it is best that, after all, we can not take moral responsibility for consequences in which they might find themselves dismissed as a result of our struggle for them. Dismissal as a result of a struggle, righteous as it may be, is our moral failure as their representatives. Thus we find ourselves in a feminist trap. Is there an outlet from this trap? Nothing left for us but to address the President, Prof. Rivka Carmi, and call out to her to solve this catch by unpicking the net of exploitation and by realizing her declarations regarding the promotion of women. The promotion of women is not the promotion of only academic women, the promotion of women is one that starts at the bottom of the scale by doing justice with the weakest, within our academic house. This justice will not at all hurt the economic infrastructure of the university; with a negligible investment, it will do wonders to the human and moral face of the Israeli academy in the Negev.

The State of Israel knows differently: On May 16, 1997, the government passed Government Resolution no. 2015 regarding the integration of immigrants from Ethiopia in the public service – a special project (three-year project, 1997-1999). According to the resolution, in the second half of 1997, in 1998 and in 1999 the Ministry of Finance will allocate 17 "framework positions" for the integration of immigrants from Ethiopia in the public service.(2) In addition, in 1998 the government passed a resolution to exempt from tender positions that were allocated to the integration of immigrants from Ethiopia in the public service (three-year project, 19971999).(3) We call upon the President, Professor Rivka Carmi o serve an example and a model for the correction of the injustice caused to the immigrants, both men and women, and not to leave them defenseless against the greed of the contractors making a profit at their expense. We call upon the President and the Ben-Gurion University to serve an example of a strong and well-founded organization lending its strength to the newcomers and the weak, and providing a sense of belonging and a home to new immigrants.

Chapter 2b: An opportunity to make a correction of the discrimination based on status During the 1990's over one million new immigrants made "Aliyyah" to Israel, most from the Former Soviet Union (Israel Annual of Statistics, 2009). These immigrants brought with them rich human capital, both in terms of the level of their education and in respect to their professional composition. However, surveys show that this human capital is not being put into action – there is much unemployment among the immigrants, many are employed in part-time jobs, and even more are employed in low-status professions (Israel Annual of Statistics, 2009). 44% of the new immigrants in the ages of 30 to 44, and 57% of the new immigrants in the ages of 45 to 59 indicate a change to the worse in their professional status when comparing their situation today with their situation before immigrating (Leshem, 2008). The status of immigrant women in this context is worse than that of immigrant men; the unemployment rate among them is higher and the decline in their professional status after Aliyyah is sharper than among men.(1) One of the difficulties that immigrant women face when searching for employment in Israel is their higher education: about half of the immigrants have academic training, and about one-third were employed in their countries of origin in liberal and technical professions. The rate of immigrant women who were employed before immigrating in liberal and technical professions was higher than that of men, and came close to 40%. These rates greatly surpass the equivalent rates in the general Israeli population.(1) Middle-aged immigrant women are at a double disadvantage both because of their gender and because of their age (Remennick, 2007). The employment problems are especially exacerbated in the case of immigrants who settled in the periphery, in which the opportunities for employment are few to begin with, and the few that do exist do not suit the education and skills of the new immigrants.(1) The vast majority of the cleaning personnel at the university are women who immigrated from the Former Soviet Union, and few came from Ethiopia and Argentina. These women, many of whom worked in their countries of origin in white-collar professions, are forced to accept harsh physical labor, at a much lower level than might be expected from their education and abilities. Many carry out their work with love, but the degrading terms of employment cause frustration that they fear to express, so as not to lose the job they need. We must remember that the dry statistics are made up of the pains of flesh and blood women: such as Marina (pseudonym), aged 50, who was in her country of origin a lecturer at the university, and who could not stand the humiliation and resigned her job, although, in her words, "it means that one day every week we will have no food at home." 22

---------------------1 From the data of the Central Bureau of Statistics, Personnel Survey, 1999 2 Government Resolution no. 2015, May 16, 1997. 3 Government Resolution no. Ec\90 of the Ministers' Committee on Economics, January 21, 1998

23


Chapter 2c: An opportunity to correct poverty employment among women

This chapter is based on the report: “Female Workers in a Destabilized Occupational Market” (Buchsbaum et al, 2008)

In the past it was customary to connect poverty with unemployment; today, the equation linking occupation with a life of economic welfare is no longer valid, and the phenomenon of “poverty employment” is constantly growing. Thus, in 2009 the Poverty Report reported there were over 177 thousand working families in Israel that were located beneath the poverty line; approximately 57% of the hired employees who live in poor families earn, when working, less than the minimum wage (as opposed to a quarter of the general working population), and the remainder earn less than the average wage. This is despite the fact that approximately 60% of the hired workers who are located beneath the poverty line were at the time working full-time (Endblad et al, 2009). These changes are connected to the nature of employment customary in the labor market today, and especially to what is customarily called “flexible employment”: temporary employment that is not accompanied by occupational security, and that is usually accompanied by the deprivation of rights granted by law. The forms of flexible employment include temporary employment, part-time work, seasonal work, and hourly work, but first and foremost they are manifested in indirect employment through a mediator – a contractor. Employment through a contractor is dependent upon the contractor winning a tender don’t know what this word means announced once every few years by the organizations purchasing the service. Thus, in Israel a situation has been created in which there is no general labor market for all, but two labor markets existing alongside each other: one is the market of abundance employment, characterized by high wages, a high professional and social status, options for development, and benefits; the other – a labor market of poverty, located at the bottom of the ladder of social esteem and including works that do not provide economic and occupational security. Women are represented in this market beyond their relative proportion of employed personnel in the economy. Women, who are employed in poverty employment, do not relate to their work in terms of a career, but in terms of labor and toil, upon which their existence depends in a burdensome manner. They do so unwillingly. Their lack of choice is the result of complex reasons, which include the lack of occupational assets (education, profession, experience, occupational ability); difficult and crisis-full life circumstances (exposure to violence, poverty, illness, economic, social and familial exploitation); a lack in support systems (arrangements for children, accessibility, means of mobility, social ties); unsatisfactory economic safety nets; discrimination; a neo-liberal economic policy; as well as social concepts that emphasize profitability and express disregard to the work of women, and contempt towards the poor. The cleaning workers at the university are employed on an hourly basis during the early hours of the morning – 06:00 to 10:00. Their salary is based on an hourly pay, and the extent of the work, and its hours, change according to the needs of the university. On Passover, for instance, the workers will receive a decreased salary due to less work hours. Working by hours can include damage to family life, damage to the connection with the children, placing a burden on the grown children, and a sense of exhaustion. The low salary resulting from an involuntary part-time job creates a difficulty to manage f economically and to plan routine expenses. This situation does not allow for long-term commitments. The worker finds herself struggling to plan her life economically, also due to the unstable nature of working by the hour. Thus, these women are forced to act in the present, with no economic future or vista. The reality in which the price of living rises, while the salary re24

mains frozen, and even deteriorates, turns more and more of these jobs to such that do not allow for reasonable existence. Beyond all this, the discrepancy between the investment in the work and the salary received at the end of the month creates experiences of insult and of entrapment, resulting from the women’s knowledge that they will not be able to find more satisfying and adequate salaries and terms of employment. Left with no choice they must stick to the existing workplace and live with the insult, the frustration and the poverty. A life of economic poverty dictates a mechanism of coping that oscillates between frugality, accounting and improvisation. This is a life that requires constant decisions regarding priorities and erasing personal needs. Poverty has a distinct implication as to time management: it creates a life that is focused on the present, from hand to mouth, while investing much time and strict planning of making daily decisions. A poor woman actually “works” for her poverty: every expense requires calculations, discussions and decisions; mobility from one place to another is difficult and prolonged for her; she must plan and locate the purchase of cheap products. A life of poverty also strongly influences the consciousness and the internal mental space. It provides an endless source of worries and concerns, and serves as a point of departure for the woman’s view of herself. The economic and social arrangement and power structures grant much power to employers, and at the same time strip a large group of women employed in poverty of any power. This revocation of power, of the needs, of the interests and of free will is what situates them as objects or as commodities. This revocation is carried out directly and indirectly, legally and through law bypassing practices. It constitutes an inseparable part of the neo-liberal economic structure, which locates as the top priority the accumulation of capital and of profits, and views the population of women workers as a resource for the achievement of these goals. The objectification of the woman is not static, but rather creates a bidirectional movement of constant empowerment and disempowerment: the increase of the sense of power of the employer, and on the other hand the disempowerment of the woman worker, her regimentation, diminution, deprivation of independence and erasing of her sense of self-worth. A woman worker who has gone through such a process is a worker situated in a destabilizing and arbitrary occupational space. While direct employment does not ensure the worker economic welfare, it does grant her a sense of belonging and of stability. These may make up for at least a portion of the ongoing hardships of existence. Direct employment enables long-term planning and commitments. In this it opens a window to the option that the next generation, the children of these workers, might receive a more fare opportunity. We call upon the President, Professor Rivka Carmi, to receive the cleaning workers as regular employees of the university, to contribute to creating a more equal society, and to change the situation in which entire groups in the population suffer poverty as a result of offensive and unstable employment.

Chapter 2d: An opportunity to correct the occupational and economic status of workers in the periphery Dr. Gili Baruch- Shatil

For many years there have been substantial gaps in unemployment between the Center and the peripheral areas of the country, despite large budgetary investments by the State. In 2007, for instance, the rate of unemployed people in Ofakkim was 8.1%, and in Lakiyya 16.2%, as opposed to a national average of 3.3%. Similarly, during the years 2001-2006 the unemployment rate in the Center of the country was approximately 8.8% on average each year, compared to 11.7% in the peripheral areas. 25


The serious gaps in the scale of unemployment between the Center and the periphery exist in both periods of prosperity and recession of the business cycle: so, in 2003, when the national level of unemployment stood at a record rate (10.7%), the unemployment rate in the Center reached 10.3%, while in the peripheral areas it climbed as high as 12.3% - a gap of 19% in favor of the Center. By 2004 the national rate of unemployment had decreased substantially but still left the periphery at a disadvantage; in 2006 unemployment rates stood at 7.1% in the Center and 10.2% in the periphery – a gap of 43% in favor of the Center (Orenstein and Pepperman, 2008). Workers from the Negev region are especially peripheral compared to workers from the Center. This is shown unequivocally, for instance, in the following data: the average monthly wage for a hired worker in the southern region was NIS 7,130, as opposed to NIS 8,963 in Tel-Aviv and NIS 8,165 nationally; while the rate of participation in the workforce in 2008 only reached 53.8% in the South, as opposed to a rate of 56.5% nationally and 60.6% in Tel-Aviv; and the rate of unemployment in 2008 reached 6.9% in the Southern region, as opposed to a rate of only 6.1% nationally, and a mere 4.8% in Tel-Aviv.

Hence, we call upon the President, Professor Rivka Carmi, to turn the University into a central player in changing the labor market and in reducing the gaps between the Center and the Negev. A change within the University will project well beyond it, owing to the distinguished standing of the University as an important and highly valued public institution. The University faces an opportunity to take upon itself a leading position for the correction of the existing situation, by making the transition to direct employment of its workers. Such a transition will enable the workers to benefit from the fruits of their labor in a stable and secure manner; in the meanwhile, the University may contribute to the process of raising public awareness to the prices that residents of the South pay, both directly and indirectly, for the indirect employment.

The labor market in the Negev is characterized by mostly labor in traditional fields such as agriculture and manufacturing ; however, since the mid-80’s Israel has undergone a gradual transition involving outsourcing traditional and hybrid industries to other countries, without creating occupational alternatives for the workers who were discharged from their workplaces. The low cost of the human capital, which is derived from the structural characteristics of the labor market in the Negev, make its population extremely vulnerable to these processes of globalization. Alongside the nature of the labor market in the South, there are additional factors that contribute to the expansion of the gap between the Negev and the Center: firstly, the Southern towns absorbed a large percentage of new immigration in the 1990’s. In this context, Schwartz and Keren point to the fact that programs for the encouragement of employment (and especially programs for the encouragement of investments in development areas) were unexpectedly found to encourage occupational instability (Schwartz and Keren, 2006). In addition, the lack of public transportation – both regional and from the Center to the periphery – deprives potential workers of mobility and flexible choice, and thus sets back regional growth. The decline of the welfare State has also especially harmed the area, in which the largest employer is the State. Thus, workers (and mostly female workers) from the education and welfare systems, who formerly enjoyed workplaces, which provided occupational security, are now employed in privatized frameworks that are characterized by temporality and other occupational offenses. The weakening of organized labor in Israel (Cohen et al., 2008) also finds a unique expression in the context of the labor market in the South: it creates an extreme polarization between organized workers, who are relatively protected in some of the larger industrial plants, and between contract workers, employees of service companies and the privatized State employees. Moreover, the rights of employees in the secondary labor market in the South are most gravely harmed due to the relative absence of civil enforcement mechanisms, such as those that are active in the Center. Among these are organizations for workers’ rights, which represent the employees in the legal arena and assist them. The distance from the Center of the country has, as we see, substantial economic and social implications: the distance from the physical and the economic Center is translated into a relative disadvantage in the potential for social-economic development. And indeed, in the southern region the extent of poverty reached 25.8% in 2008, as opposed to 15.2% in the Tel-Aviv area and 23.7% on a national average.

26

27


The cleaning workers at the Ben-Gurion University of the Negev physically work at the university – but they are removed from it legally through an organ called a "company for the provision of services". In recent years the legislator began providing a response to the issue of the rights of the employees of manpower companies through the Act for the Employment of Workers through Personnel Contractors, 1996, and through other labor laws. However, the cleaning workers at the university do not benefit from the protection of these laws, since they are not considered employees of a manpower company, but defined as the employees of a services contractor.

Chapter 3 An opportunity for correcting labor rights Adv. Becky Cohen Keshet – Itach-Ma’aki, Jurists for Social Justice and by Dana Tor – The Human Rights Clinic, Tel-Aviv University

What is the difference? At face value, the services contractor provides a product such as toilet paper or cleaning products – and not workers, and hence is not defined as a manpower contractor; however, it is clearly evident that the main service it provides is the labor of the cleaning workers, and not a product called "cleanliness". The manpower company was meant to provide workers for temporary positions, but the cleaning workers at the university do not fulfill a temporary need, but rather a permanent need, of the university. Hence, the workers are not even "workers for a temporary need", but rather, as abovementioned, a form of "product" provided to the institution by a contractor. Therefore, the employment of workers through outsourcing is nothing but a means for the university to disregard the rights of those working for it, as well as a means for transferring the responsibility resulting from their employment to other agents, in order to cheapen the labor force (though it can be doubted whether or not this objective is truly achieved). But the authorities of the university cannot disavow the fact that the labor provided by the cleaning workers is necessary and essential for the functioning of the university throughout the year. Hence, the university is burdened with the responsibility for the treatment and the conditions the workers receive when working on its premises. Contractor workers usually receive low wages, minimal social benefits, and usually do not benefit from occupational security. Thus, of the three parties to the matter, only two benefit of the arrangement – the employer and the contractor, while the contractor worker loses (Edri, 2007). In this method there is no difference between the treatment given to a worker employed for over five years and the treatment given to a new worker; termination is usually arbitrary, according to the needs of the employers. Moreover, senior employees usually face a more dire economic situation, due to the lack of allocation to a pension fund throughout most of their years of employment, and their nearing retirement. If and when the cleaning workers at the university receive the occupational security they are entitled to at their work, and accordingly receive continuance and tenure when employed, they will be able to work without worrying daily about being fired. In such a situation the workers will have an interest in doing their job to the best of their ability, knowing that it counts, and that they were not "transparent workers". The university can change the existing situation by making the transition to direct employment; thus the workers will receive rights they do not receive today: Holiday pay: due to the fact that the cleaning workers at the university work by the hour, some of them are subjected to fluctuations in their wages due to deductions from their pay in months when there is less work. In the past the workers received promises that they will continue to be paid on holidays, and indeed nowadays the situation has greatly improved: today, at the end of the semester, work hours are not reduced like they were in the past. However, still, on Passover and on other days when the university is not active, the employer does not provide the workers with work hours. In contrast to all other employees of the university, who continue to receive pay on holidays, the cleaning workers are left without pay on these days – and on holidays,

28

29


when the salary is especially important, as it has a crucial influence on the quality of their ability to celebrate the holidays Other rights derived from working under a collective agreement: today the private employers of the workers attempt to get rich at their expense, and from time to time cut corners such as failing to update travel reimbursement in accordance with increase in bus transport prices. Each method works until the contractors are caught redhanded, mostly after the university receives a complaint and a demand for the reinstatement of the right. Moreover, although the contractor receives a high tariff from the university, they methodically avoid upholding their commitments according to the collective agreement, including the granting of a 10% additional risk pay for working in laboratories, and providing gloves for the workers cleaning them. Upon transition to direct employment the workers will not be forced to inspect their pay slip each month to see if any rights or sums due to them were "omitted" from it. An opportunity for academic studies for the children of the workers: should the cleaning workers be recognized as university employees, a significant opportunity will be created for reducing ?gaps? in the population by granting the children of the cleaning workers the option for academic studies. Thus the workers will be able to provide their children with higher education, just like all other university employees. Allocation to the university employees' pension fund: for years the cleaning workers did not receive any allocation to a pension fund, and now they receive the minimum that is set by law. It is clear that the pension sums that are foreseen to accumulate from such small sums of allocations will not suffice to provide any meaningful sum at the time of retirement. Even more so with workers who had already worked for ten years and more as cleaners at the university, and only recently began receiving pension allocations. Their chances of reaching aggregative percentages that entitle them to a full pension are slim. In light of the wrongs of the past that led to this situation, it will be only right to add the workers to a beneficial pension plan, such as the one customary at the university.

Chapter 4 Economic aspects

Use of the library and the pool, and parking at the university lot: granting these benefits will significantly contribute to the workers' sense of belonging, and even ease their work. These are rights granted to all university employees, and there is no reason that the cleaning workers shall not benefit from them as well. Granting these benefits, the cost of which is not high for the university, might significantly contribute to raising the social-economic status of the workers, and even to their education. We call upon the President, Prof. Rivka Carmi, to correct the ongoing wrongdoing of depriving the workers of their legal rights. The cleaning workers do not fulfill a temporary, passing need, and moreover – they are not a product. Hence the university must not turn justice into an empty shell by releasing itself of responsibility while making declarations regarding the importance of the rights of those working for it. The university should realize the objective of the labor law, which recognizes the special connection between the employee and their workplace and employer, and return the cleaning workers to direct employment.

30

31


Since 1985 the Israeli economy has been undergoing a structural change, as part of which the involvement of the government in the economy has been decreasing, and the activity of the market forces expanding. In the course of this period, all of the governments in Israel have been working towards transferring portions of the activities of the public sector to the private sector. The economic discussion of the real profitability of privatization is long and convoluted; most economists have concluded that in some areas the private sector indeed has an advantage, while in others it is rather the public sector that proves more efficient. In Israel, the discussion on the question of profitability is focused on the privatization of the national infrastructure companies: the Electric Company, Mekorot – the national water company, the Israel Ports, the refineries, communication services and others. In these fields, as of today, privatization in Israel has progressed very little, both due to a vigilant resistance of the workers’ unions, and due to real doubts among policymakers regarding the ability of the private sector to carry out these essential activities in an efficient and safe manner. Other areas of public activity were never defined, by any government, as a target for privatization; this includes the activity of the education and higher education institutions, health institutions, and other basic services of the government ministries. And yet, it is in the activities of these fields that a drastic process of “quiet privatization” as taken place in reality, through the outsourcing of the simplest jobs carried out within these public organizations: the cleaning, maintenance, and security works, and other types of works in which the wages were never high to begin with. In a very fast process, public organizations “rid themselves” of employees, who up until 25 years ago were an integral part of these organizations. According to the central economic concept underlying the trend of privatization, the private sector is allegedly more flexible than the public sector, since in the latter, over the years formal and informal arrangements became fixed, which hurt the system of incentives for employees, and which came at the expense of economic efficiency. When economists attempt to evaluate the importance of flexibility, they might take as an extreme example the manner in which a soccer team operates: there is no logic for a professional soccer team to grant tenure and uniform salary contracts to the players, when the ability of the players constantly changes, and in light of the fact that the needs of the team change from time to time. In cases such as this, the reasons for the prevalent manner of employment are clear to the employees (whether they are soccer players, or in similar cases – models, media stars, and others); usually they also have bargaining power, which enables them to obtain generous recompensation in return for relinquishing their occupational security. Such logic could also be relevant to hi-tech firms, financial firms or other similar fields, in which the transaction is clear: a voluntary relinquishment of occupational security in return for a higher salary, which constitutes a “risk premium”. The Ben-Gurion University of the Negev employs cleaning workers aged over fifty, who for more than fifteen and twenty years report every morning to their work, like any other employee. It is readily visible, that these cleaning workers are different than the above powerful employees, since these workers have no bargaining power, and they do not voluntarily relinquish their occupational security in return for financial compensation. In fact, the truth is the opposite: as a contract worker the employee loses from both ends, and is left with both a low salary and a lack of occupational security. Moreover, the manner of work at the university is different than the nature of the jobs described above, which require flexibility and an ability for quick changes. The cleaning works at the university are carried out on a regular and stable basis. The needs of the university in the area of cleaning do not change, and the ability of the workers is usually stable, so there is no real danger of the university “getting stuck” with unnecessary employees.

the sewers or providing amplification for events, which are areas of expertise that are ordered from time to time and are not required on a regular basis at the university. However, in the area of operating cleaning services, the issue of specialization is irrelevant, since for years the university had operated cleaning services on its own, and even today it is university personnel who supervise this field. The only reason, then, which could be relevant for outsourcing cleaning works, is downsizing expenses for the university, if indeed the overall cost of cleaning workers through contractual employment is lower than their cost as university employees. In this context, the Israel prize laureate Prof. Ariel Rubinstein had said that “the employment of workers through contractors is the product of greed and of lack of solidarity” (Rubinstein, 2006). But does this method of employment actually save money? According to our calculations, no significant saving exists here; however, even if a different computation will show that the university pays a significantly lower sum for each work hour through contractual employment, there are other factors that work in the opposite direction, and which increase the price the university pays for the contractor’s services in comparison to the cost of direct employments. These factors include the contractor’s wish to make a profit, the transfer of risks from the customer to the contractor, the contractor’s financing needs, and more. In any event, it is certain that we cannot assume up front that employment through a contractor is cheaper, and each case must be examined at face value (Stauber, 2003). In jobs of low pay, inasmuch as the customer is strict in demanding that the requirements of the law and of work agreements are met, there is a large chance that the cost of the contractor’s work is only slightly different than the cost of direct employment. Moreover: even if we accept the argument of economic saving for the university itself, contractual employment is in no way economically efficient on the national level. For years the Ministry of Finance has been insisting on decreasing public funds and requiring public institutions to downsize their expenses; these institutions choose the easy way out: they transfer the burden of economizing onto the shoulders of the weakest employees – new immigrants, single-parent mothers and others – employees whose bargaining power is small, and are exposed to exploitation. No economic efficiency can be found here, since the money arrives at the public pocket from the pockets of the disenfranchised cleaning workers. According to another argument, the transition to contractual employment as part of the process of privatization and the development of the free market is profitable on the national level, since these processes promote economic growth. During his term as Minister of Finance, Binyamin Netanyahu responded to his critics and claimed that the privatization policy he was promoting will indeed result in economic growth, from which the rich and well to do will benefit first, but the growth will trickle down to the poor. And indeed, throughout the last decade Israel has enjoyed a growth rate that was high relatively to the OECD countries; but were the promises of the “free market” realized? According to the press, “about five-hundred thousand of the country’s population does not benefit from even a fraction of the growth rate” (Choresh, 2008). In this context, the unemployment data present only a partial picture, since they do not count as unemployed all those employed in part-time jobs, temporary jobs, and even jobs based on a small number of work hours, such as the cleaning workers, most of whom work only four hours a day. In addition, the tax benefits promised by the free market policy are felt among the rich, while most of the hired workers do not benefit from them at all (Svirski, Connor-Atias, and Abu-Halla, 2009).

Another economic reason in favor of outsourcing works focuses on the importance of specialization. At universities, for instance, it is unreasonable to directly operate services for cleaning 32

33


As Minister of Finance, Netanyahu further claimed that the State’s income from taxes shall increase as a result of the growth the process of privatization shall bring with it; thus, he anticipated, the State will be able to once again expand the education and welfare programs which it downsized. However, this claim was also disproved: in reality, even during the growth period it is possible to distinguish a significant reduction in the social and educational services, alongside a massive development of third sector organizations, which provide basic needs instead of the government, and which rely for their budgets on donations and independent funds, and not on government funds. Finally, we shall relate to the argument, according to which the mechanism of the market is not to be interfered with, since the forces of the market must be left alone to determine the wages of the workers. Prof. Ariel Rubinstein had related to this argument, saying: “The only argument I know of in favor of the market forces resulting always in a fair result, is nothing other than the definition that a fair result is the result of the activity of the market mechanism” (Rubinstein, 2000). On the matter of the cleaning workers he added: “I requested to be here the advocate of thousands of erased faces, roaming our campuses, inside the buildings in which we work, on the fences of the institutions in which we work and in the kitchens that feed us. Things are simple. Their amendment is trivial. There is only one question I do not know the answer to – do we really want to?” (Ibid). We call upon the President, Professor Rivka Carmi, to remove the blemish of employing the cleaning workers through contractors – employment that is un-solidary and stains the institution, the role of which is to distribute knowledge and enlightenment throughout society. We call upon the university to directly employ the cleaning workers, who are essential to the functioning of the university, and to do so while honoring the work agreements and granting all benefits accompanying work at the university. Since not only is direct employment more moral, our calculations also show that it is not significantly more expensive.

34

Bibliography

35


Abuhassra, Noam, Becker, Neta, and Cohen, Ziv, "Transparent Workers in the Service of the State", A Report on the Breach of Rights of Contractor Workers in Government Ministries, Emphasis on Cleaning Workers. Instructed and edited by Att. Avishai Benish. The Hebrew University of Jerusalem, the Center for Clinical Legal Education for Human Rights and Social Responsibility, the Clinic for Occupational Welfare, 2006

Gutslav, Rona and Orly Binyamin, "'Gnomes or Robots': Commitment and Dehumanization towards 'Temporary' Employees among Human Resources Managers in the Public Sector", Israeli Sociology G(2), 2006, pg. 253

Leshem, A. Multidisciplinary Research on the Integration of Immigrants from the Former Soviet Union in Israel, Jerusalem: Joint-Israel, 2008

Agamben, Giorgio, "Homo Sacer: Sovereign Power and Bare Life, Meridian, Crossing Aesthetics, 1998 Olson, Kevin (Ed.), Adding Insult to Injury: Nancy Fraser Debates Her Critics, London: Verso, 2008 Aharoni, Y., “State-Owned Enterprise: An Agent Without a Principal,” in Jones, L. P. (Ed.), Public Enterprise in Less-Developed Countries, Cambridge: Cambridge University Press, 1982 Bauman, Zygmunt, Globalization, the Human Aspect, New York: Columbia University Press, 1998 Benjamin, Jessica, "The First Bond", The Bonds of Love: Psychoanalysis, Feminism and the Problem of Domination, New York: Pantheon Books, 1988 Ben Israel, Ruth, "Social Justice in a post-work era", in: Mautner, M. (Ed.), Distributive Justice in Israel, Tel-Aviv: Ramot, 2000 Ben Israel, Ruth, "Outsourcing: Workers employed by Manpower Contractor, a Different Interpretation, Converting a Formal Employment with Authentic Employment", The Annual of Labor Law 7:5, 1999

Rabin, Yoram, 'The Right of Access to Court' as a Constitutional Right, Tel-Aviv: Bursi, 1998 Ramamurti, Ravi, “A Multilevel Model of Privatization in Emerging Economies,” Academy of Management Review, Vol. 25, No. 3, 2000 Remennick, L. Russian Jews on Three Continents: Identity, Integration, and Conflict, New Brunswick: Transactions Publishers, 2007 Schwartz, Dafna & Michael Keren, "Location incentives and the unintentional generation of employment instability: some evidence from Israel," The Annals of Regional Science, 40(2), Springer, June 2006 State Comptroller Report, Annual report 54b, 2004

Ben Israel, Ruth, "The administrative privilege (the prerogative) of the employer", Law Review 25:3, 2002

Stauber, Yehoshua, Outsourcing: Transferring Activities from the Organization to Management, Ramat-Gan: Yehoshua Stauber, 2003

Bernstein, J. and Shuval J., "Gender Differences in The Process of Occupational Integration of Immigrant Physicians in Israel", Sex Roles 40(1-2), 1999

Rona Gutslav and Orly Binyamin, "'Gnomes or Robots': Commitment and Dehumanization towards 'Temporary' Employees among Human Resources Managers in the Public Sector", Israeli Sociology G (2), pg. 253 (2006).

Buchsbaum, Ya'ara, Dagan, Michal, Diab, Umaima, and Dorit Abramovitch, Female Workers in a Destabilized Occupational Market, a report of the Mahut Center, 2008 Central Bureau of Statistics, Manpower Survey, 1999

Dafna Schwartz & Michael Keren, (2006). "Location incentives and the unintentional generation of employment instability: some evidence from Israel," The Annals of Regional Science, Springer, vol. 40(2), pages 449-460, June.

Online resources: Act for the Employment of Workers through Personnel Contractors, 1996 Available at: www.moital.gov.il/NR/exeres/D563DDCF-87F7-4E20-B41D-7C4F9A270179.htm Benish, Avishai and Tsarfatie, Roie, "When Labor Turns Back into a Commodity: a Critical Review of Loss Contracts in the Acquisition of Labor-Rich Services", Ma'asei Mishpat, Vol. A, Tel-Aviv University, January 2008 Available at: http://www.law.tau.ac.il/Heb/_Uploads/dbsAttachedFiles/Benish_tsarfatie.pdf

Elbashan, Yuval, "The Accessibility of the Disempowered Populations in Israel to Justice", Alei Mishpat C, 2003

Central Bureau of Statistics, Israel Statistical Annual, 2009 Available at: http://www.cbs.gov.il/reader/shnatonhnew_site.htm

Felstiner, W.L.F., Abel, R.L. and Sarat, A., "The Emergence and Transformation of Dispute: Naming, Blaming, Claiming", Law and Society Review 15, 1980-1981

Choresh, Hadar, "Who enjoys the decrease in unemployment", Ma'ariv, June 2, 2008 Available at: www.nrg.co.il/online/16/ART1/741/628.html

Glin, A., "Sourcing Out: Organization and Management Aspects", The Annual of Labor Law, 7, 1999

Cohen, Yinnon, Haberfeld, Yitzhak, Mundlak, Guy, & Sapporta, Yitzhak, "The Rate of Workers Organized in Trade Unions and the Coverage of the Collective Agreements, Present State 2000", Ministry of Labor and Welfare, the Authority for Personnel Planning, 2008. Available at: http://www.moital.gov.il/cmsTamat/Rsrc/koach/tichnun_koach_adam/tichnun_pirsumim/Pirs_maamarim/xmeurgan.pdf

Gottlieb, Daniel, "Obedience to Minimum Wage Law and its Enforcement in Israel", Israeli Tax Quarterly, 110, 2000 Gross, A., "How 'Free Competition' Became a Constitutional Right", Law Review 23:1, 1999.

36

37


Edri, Yitzhak Jackie, "Contractor Workers – the Transparent Ones", from the blog "Contractor Workers in Israel", November 10, 2007 Available at: cafe.themarker.com/view.php?t=210577 Endblad, Miri, Fruman, Alex, Berkley, Netanela and Daniel Gottlieb, "Dimensions of Poverty and Social Gaps – Annual Report 2008", Administration of Research and Planning, the National Insurance Institute, 2009 Available at: www.btl.gov.il/Publications/oni_report/Documents/oni2008.pdf Handles, Shuki, "Guards and security guards in Israel 1995-2003", Administration and planning, Research and Economics in the Ministry of Industry, Trade and Labor, 2004. Available at: http://www.moital.gov.il/NR/rdonlyres/C2755515–EFD5–49B3–8221–255D690D2099/0/ X6169.doc Leshem, A., Multidisciplinary Research on the Integration of Immigrants from the Former Soviet Union in Israel, Jerusalem: Joint-Israel, 2008 Available at: http://www2.jdc.org.il/files/olim/olim-publications/Masad-Klita-research-April-2009. pdf Nadiv, R., "Manpower Contractors in Israel working in permit", Administration and planning, Research and Economics in the Ministry of Industry, Trade and Labor, March 2005 Available at: http://www.moital.gov.il/NR/rdonlyres/ECD3C640-97E0-45F3-9BD4-1FFC1C488C52/0/ kablanrishui.pdf Orenstein, Michael & Pepperman, Binyamin, "The Chances of Finding Work in Peripheral Areas Compared to the Center of the Country, and Implications on Policy", Research Administration, the Ministry of Industry, Trade and Labor, 2008 Available at: http://www.moital.gov.il/NR/rdonlyres/0EE055C6-6E8D-4B76-BE54-2F136A7541AA/0/ X8274.doc Pechter, Tal, Sapporta, Shoham, Sperber, Shira, and Zion Revach, Report of the Kapayim NGO – Field work instructed by Amnon Portugali and Prof. Shmuel Kendel. School of Management, the Leon Rekanati School of Business Administration, Tel-Aviv University, 2005 Available at: http://www.agenda.org.il/info/pages/nihool_malckarim.ppt Rosen, Emmanuel and Tamar Fine, "A Struggle with a Mop and Broom", Television report on "Channel 2 News", aired on March 19, 2010 Available at: http://www.mako.co.il/news-israel/education/Article-b9f6a165a877721004.htm Rubinstein, Ariel, "Ten Notes on the Transparent Present", A Place for Thought at the Gate, 2000 Available at: arielrubinstein.tau.ac.il/articles/bashaar2.pdf Rubinstein, Ariel, "Following 10th of Tevet – Harnessing both Wagons", Yedioth Aharonot, January 19, 2006 Available at: arielrubinstein.tau.ac.il/hebrew-articles.html Svirski, Shlomo, Connor-Atias, Eti, and Halla Abu-Challa, "Social State of Affairs 2008/2009", annual report of the Adva Center, December 26, 2009 Available at: www.adva.org/default.asp?pageid=1001&itmid=573 Tajar, Michal, Att., "Working without Dignity – Workers Rights and their Violations", the Association for Civil Rights in Israel Available at: http://www.acri.org.il/pdf/2211.pdf

38


From Contract Workers to Workers of Equal Status