CHAPTER VII.
EXCEPTIONS TO PROTECTIVE LEGISLATION
All prohibition of employment and limitations of employment are apparently opposed to the interests of the employers. As long as they are kept within just limits, however, this will not be true generally or in the long run.
The just claims of Capital may be protected by admitting carefully regulated exceptions; but wherever and in so far as employment is opposed to the higher personal interests of the whole population, Capital must submit to the restrictions.
As regards the exceptions, these are in part regular or ordinary, in part irregular or extraordinary. We find examples of both kinds alike in the legislation for restricting the time of working and in legislation for protecting intervals of rest.
Ordinary exceptions to prohibition of employment consist mainly of permission by legal enactment in certain specified kinds of industrial work, of a class of labour which is elsewhere prohibited, e. g. night work for women and young workers. The greater number of cases of prohibition of employment appear in the inverse form of exceptions to permission of employment.
Ordinary exceptions to restriction of employment are provided for partly by legislation, partly by administration, i. e. partly by the Government, partly by the district or local officials.
Wherever in the interests of industry it is impossible to enforce the ordinary protection of times of labour and hours of rest, this is made good to the labourer by the introduction of several (two, three, or four) shifts taking night and day by turns, so that an uninterrupted continuance of work may be possible without any prolonged resting time either in the day or in the night; moreover, the loss of Sunday rest can be compensated by a holiday during the week.
Extraordinary exceptions occur chiefly in the following cases: (a) where work is necessary in consequence of an interruption to the regular course of business by some natural event or misfortune; (b) where work is necessary in order to guard against accidents and dangers; (c) where work is necessary in order to meet exceptional pressure of business.
Exceptions to protection of holidays
These exceptions are so regulated that in certain industries holiday work is indeed permitted but compensation is supplied by granting rest on working days. The exceptions provided for by the Berlin Conference have already been given. The von Berlepsch Bill admits, if anything, too many exceptions. The Auer Motion permits holiday work in traffic business, in hotels and beer houses, in public places of refreshment and amusement, and in such industries as demand uninterrupted labour; an unbroken period of rest for 36 hours in the week is granted in compensation to such workers as are employed on Sunday.
Switzerland wishes to give compensation in protection of holidays in railway, steamship and postal service, by granting free time alternately on week days and Sundays, so that each man shall have 52 free days yearly, of which 17 shall be Sundays.
Exceptions to prohibition of night work
The Imp. Ind. Code Amendment Bill (§ 139a, 2, 3) admits ordinary and extraordinary exceptions. The Auer Motion does not entirely exclude such exceptions, as it provides exceptions in traffic business and such industries as “from their nature require night work.” We cannot here enter into details as to the rules on the limitations of exceptions, and as to the enforcement of those rules.
Exceptions to the maximum working-day
Overtime: Extraordinary exceptions to an enforced maximum working-day consist in permission of overtime; ordinary exceptions consist in the employment of children, women and men, in certain kinds of business, for a longer time than is usual (see Chapter V.).
The von Berlepsch Bill assumes a very cautious attitude in the matter of overtime. Extraordinary exceptions in the case of pressure of business are provided for as follows: “In cases of unusual pressure of work the lower courts of administration may, on appeal of the employers, permit, during a period of 14 days, the employment of women above the age of 16 years until 10 o’clock in the evening on every week-day, except Saturday, provided that the daily time of work does not exceed 13 hours. Permission to do this may not be granted to any employer for more than 40 days in the calendar year. The appeal shall be made in writing, and shall set forth the grounds on which the permission is demanded, the number of female workers to be employed, the amount of work to be done, and the space of time required. The decision on the appeal shall be given in writing. On refusal of permission the grievance may be brought before a superior court. In cases in which permission is granted, the lower court of administration shall draw up a specification in which the name of the employer and a copy of the statements contained in the written appeal shall be entered.”
The Auer Motion sets the narrowest limits to admission of overtime, permitting it only in case of interruption of work through natural (elemental) accidents, and then only permitting it for 2 hours at the most for 3 weeks, and only with consent of the “labour-board.”
Both in regulation and administration all these exceptions to protective legislation should be dealt with in a very guarded manner. Moreover they must be enforced on a uniform and widely diffused system, and they ought to afford a real protection to the fair and just employer against his more unscrupulous competitors.
Both these considerations – the strict limitation and uniform administration required for these exceptions – render it imperative that the regulation by law should be, so far as practicable, very careful and minute. Moreover it is requisite that the principle on which the administration has to act in dealing with exceptions shall be laid down as definitely as possible, and further that protective enactments shall be interpreted in a uniform manner by the organs of local government (Bundesrath), and finally that there should be general uniformity of method, both in the instructions given and in the supervision exercised by the intermediate courts of Labour Protection to the local authorities.
Much may be done in the way of effectual limitation of exceptions by dealing individually with the separate kinds of employment, in the matter of Sunday rest and alternating shifts. In the Düsseldorf district it has been proved by experience that by specialising the exceptions, Sunday rest may be granted to a large percentage of the workmen even in the excepted industries themselves (gas works, brick and tile kilns, etc.).
The special instruments of administration for the regulation of exceptions to this kind of protection are the certificate of permission, the entry in the register of exceptions, and the public factory rules.
The industrial inspector is entrusted with the supervision of the exceptions; but the assistance of the employer is very desirable, and is frequently offered, as it is to his interest that the application shall be just and uniform.
The central union of embroiderers in East Switzerland and the Vorarlberg district, e. g. which was formed in 1855, and which now includes nearly all the houses of business, supervises the strict adhesion to the 11 hours rule, by sending special inspectors into the most remote mountain districts, and imposing fines for non-observance to the amount of from 200 to 300 francs (Hitze).
CHAPTER VIII.
PROTECTION IN OCCUPATION, PROTECTION OF TRUCK AND CONTRACT
(A) Protection in occupation
Protection in occupation is directed towards the personal, bodily and moral preservation of wage-earners against special risks incurred during the performance of their work. Protection in occupation is already afforded to a certain degree by Labour Insurance, in the form of Insurance against accidents and sickness.
The bodily and moral preservation of those engaged in business forms no new department of Labour Protection. It has long been more or less completely provided for by the Industrial Regulations and by special labour protective legislation in almost all civilised countries.
Protection in occupation is afforded by the enactments dealing with dangerous occupations, with the regulations of business, with the management of business, with the workrooms and eating and dressing rooms, and with the provision of lavatories. In the Imp. Ind. Code Amendment Bill the task of protection in occupation is formulated thus: Ҥ 120a, Employers of industry shall be bound so to arrange and keep in order their workrooms, business plant, machinery and tools, and so to regulate their business, that the workers may be protected from danger to life and health, in so far as the nature of the business may permit. Special attention shall be paid to the provision of a sufficient supply of light, a sufficient cubic space of air and ventilation, the removal of all dust arising from the work and of all smoke and gases developed thereby; and care must be taken in case of accidents arising from these causes. Such arrangements shall be made as may be necessary for the protection of the workmen against dangerous contact with the machines or parts of the machinery, or against other dangers arising from the nature of the place of business, or of the business itself, and especially against all dangers of fire in the factory. Lastly, all such rules shall be issued for the regulation of business and the conduct of the workers, as may be necessary to render the business free from danger.
Ҥ 120b. Employers of industry shall be bound to make and to maintain such arrangements and to issue such rules for the conduct of the workers as may be necessary to ensure the maintenance of good morals and decency. And, especially, separation of the sexes in their work shall be enforced, in so far as the nature of the business may permit. In establishments where the nature of the business renders it necessary for the workers to change their clothes and wash after their work, separate rooms for dressing and washing shall be provided for the two sexes. Such lavatories shall be provided as shall suffice for the number of workers, and shall fulfil all requirements of health, and they shall be so arranged that they may be used without offence to decency and convenience.
Ҥ 120c. Employers of industry who engage workers under 18 years of age shall be bound, in the arrangement of their places of business and in the regulation of their business, to take such special precautions for the maintenance of health and good morals as may be demanded by the age of the workers.
“§ 120d. The police magistrates are empowered to enforce by order the carrying out in separate establishments of such measures as may appear to be necessary for the maintenance of the principles laid down in § 120 to § 120c, and such as may be compatible with the nature of the establishment. They may order that suitable rooms, heated in the cold season, shall be provided free of cost, in which the workers may take their meals outside the workrooms. A reasonable delay must be allowed for the execution of such orders, unless they be directed to the removal of a pressing danger threatening life or health. In establishments already existing before the passing of this Act only such orders shall be issued as may be necessary for the removals of grave evils dangerous to the life, health or morals of the workers, and only such as can be carried out without disproportionate expense: but this shall not apply to extensions or outbuildings hereafter added to the establishment. Appeal to a higher court of administration may be made within 3 weeks by the employer.
“§ 120e. By order of the Bundesrath directions may be issued showing what requirements may be necessary in certain kinds of establishments, for the maintenance of the principles laid down in §§ 120a to 120e. Where no such directions are issued by order of the Bundesrath, they may be issued by order of the Central Provincial Courts, or by police regulations of the courts empowered with such authority, under § 81 of the Accident Insurance Act of July 6th, 1884.”
This formulary may be considered specially successful and almost conclusive.
The insertion of the foregoing clauses in the general portion of chap. vii. of the Imp. Ind. Code Amendment Bill ensures such protection in occupation as is adequate to all necessities of life, to the whole body of industrial work included within the sphere of the Industrial Code.
One item of Labour Protection in occupation might be supposed to consist in guarding against over-exertion, by means of the abolition of piece-work and “efficiency wage.” But this claim, in so far as we find it prevailing in the Labour world, is made more on grounds of wage policy than as a necessary measure of protection. The economic advantages to the workers themselves of these methods of payment are so great that the abolition of “efficiency wage” is not, I think, required either on grounds of wage policy or of protective policy. We must, however, pass over the consideration of this question, whilst admitting that there is still a great deal to be done in this direction by means of free self-help and mutual help.
(B) Protection of intercourse in service, Truck Protection in particular
To protection in occupation must be added – as a last measure of the protection of labour against material dangers – protection of the wage-worker in his personal and social intercourse outside the limits of his business with the employer and his family, and with the managers and foremen. In default of a better term, we have called this protection of intercourse in service.
Outside the actual performance of his work, the wage-worker is threatened by special dangers which can only be averted by extraordinary intervention of the State. These dangers affect the person and domestic life of the wage-worker.
Apprentices especially, and all wage-earners living in the same house as the employer, are liable from their position as the weaker party, to intimidation, ill-treatment, and neglect. Provision is made against such dangers by the ruling of the Industrial Regulations on the relations of journeymen and apprentices to business managers and employers.
Special protection has long been afforded in the social relations between the servant on the one side, and the employer and his family on the other. This takes the form of protection against usury, against exploitation of dependents, especially if they are ignorant and inexperienced. This protection in social relations may also be called – involving as it does, in by far the largest proportion of cases, protection against undue advantage derived from payment in kind – “Truck Protection.”
The usury in question may take the form of a profit in the way of service, or exploitation of the workman, by forcing him to perform work outside the agreement as well as the work of the business, or instead of it; or again, it may be profit on payment, derived from payment of wages in coin or kind; or it may be profit on credit, loan, hire and sale, derived by compelling the workman to enter into disadvantageous transactions in borrowing, contracting, and hiring, and by requiring him to purchase the necessaries of life at certain places of sale where exorbitant prices are demanded for inferior goods.
To prevent the employer from gaining such unfair advantage over the “members of his family, his assistants, agents, managers, overseers, and foremen,” the German Industrial Code has long since interfered by ordering payment in coin of the realm, by prohibiting credit for goods, and by limiting to cost price the charges for necessaries of life, and of work supplied (including tools and materials). Any agreements for the appropriation of a part of the earnings of the wage-worker for any other purpose than the improvement of the condition of the worker or his family shall be declared null and void. The Auer Motion demands also that “compulsory contributions to so-called ‘benefit clubs’ (savings banks attached to the business) shall be prohibited.”
This form of protection, which I have called protection of intercourse, is extended to all kinds of industrial work, as is also the case with protection in occupation, though not with protection by limitations of employment. In Germany this extension is effected by incorporating in the general portion of chap. vii. of the Imp. Ind. Code Amendment Bill the rules for protection in occupation and protection against usury, and also by including non-manufacturing (§ 134) as well as manufacturing work in the rules of the Industrial Regulations against personal ill-treatment and neglect.
Hitherto no special courts have been appointed for the administration of protection of intercourse, which has been left generally to the ordinary administration and especially to the judicial courts. In other cases it is left to the industrial courts of arbitration of the first and second instance rather than to the industrial inspectors. But extraordinary protection is afforded by special rulings of common law on illegal agreements, on nullity of agreement, on escheat of contributions to savings banks made in defiance of prohibition, on failures to complete contracts of apprenticeship and service, etc., etc.
The Imp. Ind. Code provides protection of intercourse in the business of household industry also, in the ruling of the second clause of § 119. The usefulness of this ruling depends indeed on the improvement of the organisation of Labour Protection which is still imperfect and insufficient in its application to household industry. The compulsory and voluntary assistance of the employers and their commercial agents, with or without control by the industrial inspector, is the aim towards which attention must be directed for the further development of protection of intercourse in household industry. The above-mentioned central union of workers in the embroidery industry in East Switzerland, which is for the most part household industry, shows what may be done by voluntary unions in the way of protection within the sphere of household industry. One inspector says: “The computation of the amount of embroidery done, i. e. the basis for the calculation of wages, is determined; the relations between the “middleman,” the employer and the workers are regulated; and a place of sale is provided for all work rejected by the employer on account of alleged imperfections. The classification of patterns —i. e. the fair graduation of wages according to the ease and rapidity, the greater or less trouble and expense with which the pattern is executed – has for a long time been one of the main objects of the union.”
(C) Protection of the status of the workman (protection of agreement, protection of contract)
The term protection of contract must here be understood in a wider sense than in that of a mere guarantee of freedom of contract, and judicial protection of labour contracts; hence I have called it protection of the status of the workman.
This protection of the status of labour includes a multifarious collection of existing measures of protection, and impending claims for protection which we may regard as falling under three heads: protection of engagement and dismissal, protection against abuse of contract, and protection in fulfilment of contract.
1. Protection of engagement and dismissal
By protection of engagement we mean protection of the worker against hindrances placed in the way of admittance into service; it is protection in the making and carrying out of agreements, partly protecting the workman against unjust loss of character, and partly giving him the right to claim a character. Protection against loss of character might further be divided into protection against defamation by individuals – foremen or employers – and protection against defamation by combinations of employers.
The Labour world claims protection against loss of character in the demand for the abolition of the labour log, and in Germany where the general log is not used, in the demand for the abolition of the young workers’ log which, however, is still recommended by many from considerations that have no connection with depreciation of work.
Wherever the labour log is still used, protection, against loss of character has long been afforded by prohibition of entries and marks which would be prejudicial to success in obtaining fresh employment.
Protection is demanded, but as yet nowhere granted, against defamation by combination of employers, of workmen who have made themselves disliked, against black lists, circulars, etc. The penalties of such defamation by combination in the Auer Motion are directed against employers and employers only, although in point of fact there are not infrequent cases of combinations among workmen for the defamation of employers. The Motion runs thus: “(§ 153) Whoever shall unite with others against any worker because he has entered into agreements or has joined unions, and shall endeavour to prevent him from obtaining work, or shall refuse to employ him, or shall dismiss him from work, shall be punished by imprisonment for three months.”
Another fragment of protection of engagement has long existed in the penalties attached to certain infringements of the right of combination, with reciprocity of course for the employers (cf. § 153 Imp. Ind. Code.)
The guarantee of testimonials has long been afforded – and has met with no opposition – as a means of protection against defamation by individual employers.
Side by side with protection of engagement we have protection in quitting service.
Special protection in quitting service – beyond the ordinary administrative and judicial protection of labour contract against unjust dismissal – consists partly of: protection in dismissal from service, i. e. against expulsion by the employer, and partly, of protection in voluntarily quitting service, i. e. quitting service for special reasons. Both these measures are applied to the whole of industrial wage labour, and have hitherto generally been enforced by the regular courts of justice and administration, by application, however, of special rulings of industrial legislation on written agreements, on the right of special dismissal from service, and the right of quitting service, and on the length of notice required, etc. The further development of protection in quitting service will probably more and more require the extraordinary jurisdiction of the industrial courts of arbitration. Protection against compulsory dismissal into which one employer may be forced by another employer by intimidation, libel, and defamation, is afforded by special penal Acts, and, like protection against breach of contract, is more particularly protection of the employer and is only indirectly protection of the worker.
2. Protection of contract, in the strict sense; protection by limitation of the right of contract, by completion of contract, and by enforcing fulfilment of contract
Beyond the ordinary judicial protection afforded by the obligations attached to service contract, special guarantees of protection are in part already granted, in part demanded, against abuse of contract, incomplete fulfilment and non-fulfilment of service contract to the disadvantage, as a rule, but of course not in all cases, of wage-labour.
This protection is afforded partly by formal regulations, partly by judicial rulings on special cases. The latter form of protection in contract is closely allied to protection in intercourse (see above); the two overlap each other.
The protection afforded by contract regulations consists in the enforcement of certain formal requirements, and the granting of certain remissions, such as e. g. the requirement of written agreements and the remission of duty on written agreements, etc. First and foremost stands the obligation to post up the working rules. A parte potiori13 all protection of contract might be called protection of working rules.
The working rules serve in reality to give the workman himself the control over his own rights, but they also are to the interest of the employer.
The von Berlepsch Bill further extends this sort of method to factory and quasi-factory labour (§ 134a-134g), permitting the workmen in any business to exert a considerable influence upon the drawing up of the working rules. Sections 134b and 134c read thus: “§ 134b. Working rules shall contain directions: (1) as to the time of beginning and ending the daily work, and as to the intervals provided for adult workers; (2) as to the time and manner of settling accounts and paying wages; (3) as to the grounds on which dismissal from service or quitting service may be allowable without notice, wherever such are not determined by law; (4) as to the kind of severity of punishments, where such are permitted; as to the way in which punishments shall be imposed, and, if they take the form of fines, as to the manner of collecting them and the purpose to which they shall be devoted. No punishments offensive to self-respect and decency shall be admitted in the working rules. Fines shall not exceed twice the amount of the customary day’s wage (§ 8. Insurance against Sickness Act, June 15th, 1883), and they shall be devoted to the benefit of the workers in the factory. The right of the employer to demand compensation for damage is not affected by this rule. It is left in the hands of the owner of the factory to add to rules I to 4 further rules for the regulation of the business and the conduct of the workmen in the business. The conduct of young workers outside the business shall also be regulated. The working rules may direct that wages earned by minors shall be paid to the parents and guardians, and only by their written consent to the minors directly; also that a minor shall not give notice to quit without the expressed consent of his father or guardian.”
§ 134d reads as follows: “Before the issue of the working rules or of an addition to the rules, opportunity shall be given to the workers in the factory to express their opinion on the contents. In those factories in which there is a standing committee of the workmen it will be sufficient to receive the opinions of the committee on the contents of the working rules.”
It is further recommended that the factory rules shall include the publication of legal enactments regarding protection by limitations of employment, protection in occupation and in intercourse, the necessary conditions and limitations of these, the possibilities of appeal, and methods of payment of overtime wage, also of instructions for precaution against accidents, and lastly of the name and address of the club doctor and dispenser, of the company and their representatives, the name of the factory inspector and his office address and office hours.
But we have seen that contract protection is not only afforded by these formal regulations but also by judicial rulings on special cases. These latter have a threefold task: to prevent the drawing up of unfair contracts, to supply deficiencies in the contract, by adding subsidiary rulings suited to the nature of the industrial service relations, and lastly, to secure the fulfilment of service contract; i. e. they have to provide protection by limitation and completion of contract and to secure fulfilment of contract.
This kind of protection of contract is of special importance in dealing with contract fines, proportional output (“efficiency work”), the supply of tools and materials of work, and lastly with payment of wage.
Labour Protection seeks to guard against abuse of contract fines, by fixing the highest permissible amount of fines, and by handing over the proceeds of the fines to the workmen’s provident fund. This is a matter of the highest moment, and must find a place in the drawing up and in the enforcement of the working rules (see above). Hitherto it has only been extended to factory labour.
A second task of protection of contract lies in the protection of “efficiency work,” i. e. protection of the wage-worker against an undue deduction from his “efficiency wage” on account of the alleged inferior quality of the output, and against neglect to reckon in the full amount of the output in the calculation of wage. This measure of protection has been placed on the orders of the day of the present labour protective movement, by the adoption e. g. of the system of checking the weight of the output in mining.
In the third place we come to protection of the workman against loss sustained in buying his tools and materials of work from the employer. This measure of protection in purchase of materials is applied to the whole of industrial labour by means of its insertion in the general rules for truck protection contained in the Imp. Ind. Code.
A fourth point, very closely allied to protection of intercourse, but which has to be dealt with protectively by those judicial rulings on protection of contract, concerns the permanence of rate of wage, the day, place, and period of payment, and by whom, and to whom, payments are to be made. Protection of payment may be more completely secured by the inclusion in the working rules of directions on these points. It must be applied to the whole of industrial wage-labour according to circumstances. The prohibition of payment of wages in public-houses and on Saturdays, the fixing of the wage by the employer himself, not by a subordinate official; the obligation to make the agreement as to “efficiency wage” at the time of undertaking the work, in order that the bargain may not be broken off should it prove specially favourable for the workers; also payment of wage at least weekly or fortnightly; and lastly, the payment of minors’ wages into the hands of parents or guardians, which constitutes a measure of educational protection of the minors against themselves – such are the principal requirements of protection of payment of wages, requirements which are already more or less fulfilled.