The Theory and Policy of Labour Protection Part 12

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 compet.i.tors.

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 s.h.i.+fts. In the Dusseldorf 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 a.s.sistance 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: "-- 120_a_, 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 s.p.a.ce 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.

"-- 120_b_. 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 s.e.xes 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 was.h.i.+ng shall be provided for the two s.e.xes. 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.

"-- 120_c_. 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.

"-- 120_d_. 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 -- 120_c_, 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 pa.s.sing 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.

"-- 120_e_. 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 ---- 120_a_ to 120_e_.

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, pa.s.s 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 a.s.sistants, 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 apprentices.h.i.+p 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 a.s.sistance 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 cla.s.sification 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._