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Shabbat Parashat Bereishit | 5770
P’ninat Mishpat:The Right to Strike – Part I
(based on Eit Ladun, Halacha Psuka, vol. 29)
What does halacha have to say about one of the most divisive of phenomena in modern society: the right to strike? There are two areas of halacha to investigate: the obligation of workers to fulfill their commitment to their employer and the workers' power to create rules of business practices.
The gemara (Bava Metzia 10a) says that a worker can back out in the middle of the day, which is what separates him from a slave, a status we should not have in relation to another human being. However, the baraita (ibid. 77b) says that if backing out will cause an actual loss to the employer, the worker may back out only if there is an oness (extenuating circumstance). Based on this, Rav Chayim D. Halevi (Aseh Lecha Rav II, 64) says that, under normal circumstances, one is not allowed to strike. Rav S.Z. Orbach (Techumin V, pg. 287) says that in standard modern cases, strikes are worse than they were classically because they (sometimes) abrogate agreements that were made publicly, which make the agreement the equivalent of a case where a kinyan was made. Under such circumstances, beit din can force the workers back to their jobs (see Shach, Choshen Mishpat 333:4; Pitchei Teshuva, ad loc.:2). Rav Orbach also posits that a worker may back out only if he is seeking freedom from work, but if he wants to continue working for his employer with better compensation, he may not break his agreement. The situation is even clearer regarding many strikes where the employee stops working while preventing others from replacing him.
Rav Avraham Shapira (Techumin V, pg. 297) distinguishes between one who wants to back out to raise his wages, which is not valid, and one who does so to compensate for the wages' decreasing buying power or the employer's failure to fulfill conditions of the agreement. In the latter case, the worker is entitled to take steps based on avid inish dina l’nafshei (limited rights to “take the law into one’s hands”).
The Tzitz Eliezer (II, 23) and Igrot Moshe (Choshen Mishpat I, 59) divorce the matter of strikes from that of ceasing to work, as the worker wants to continue working with different conditions. Rather, the relevant halachic parallel is that of agreements within groups of craftsmen. The Shulchan Aruch (Choshen Mishpat 231:28) says that just as the residents of a city may set regulations, so can the members of a trade group. However, in regard to the latter, since they are acting for their own personal interests, they need the agreement of an “important man” who is responsible for the welfare of the community. After meeting those conditions, they can decide that when a group strikes, peers will not be allowed to “break the strike.”
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This edition of Hemdat Yamim is dedicated to the memory of
and Louis and Lillian Klein, z”l.