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Title: The Theory and Policy of Labour Protection
Author: Schäffle, Albert Eberhard Friedrich, 1831-1903
Language: English
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OPINIONS OF THE PRESS ON THE SOCIAL SCIENCE SERIES.
"'The Principles of State Interference' is another of Messrs. Swan
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* * * * *
THE THEORY AND POLICY OF LABOUR PROTECTION.
BY DR. A. SCHÄFFLE
EDITED BY A. C. MORANT
_Translator of Schäffle's_ IMPOSSIBILITY OF SOCIAL DEMOCRACY,
_Leroy-Beaulieu's_ THE MODERN STATE, _Laveleye's_ LUXURY, _etc._
[Illustration]
London
SWAN SONNENSCHEIN & CO.
NEW YORK: CHARLES SCRIBNER'S SONS
1893
BUTLER & TANNER,
THE SELWOOD PRINTING WORKS,
FROME, AND LONDON.
PREFACE.
In this book Dr. Schäffle seeks to carry out still further the idea
which he developed in his last book (_The Impossibility of Social
Democracy_) of the essential difference between a socialistic policy and
what he calls a Positive Social Policy, proceeding constructively upon
the basis of the existing social order. He emphatically vindicates the
Emperor William's policy, as shown in the convening of the Berlin Labour
Conference, from the charge of being revolutionary, or of playing into
the hands of the Socialists.
The first part contains an attempt to settle and render more precise the
use of terms in labour-legislation, as well as to classify the different
aims and purposes with which it sets out, and then passes on to what
will probably be to English readers the most interesting part of the
book--a discussion of the Maximum Working Day in general, and the Eight
Hours Day in particular. Here the author commits himself in favour of a
legal ten or eleven hours day for industrial work, with special
provisions for specially dangerous or exhausting trades, and with
freedom of contract below that limit, and brings evidence to show that
such a step has already been justified by experience. But after a
careful discussion of what it involves, and after disentangling with
some care the difficulties with which it is surrounded, he pronounces
emphatically against the universal compulsory Eight Hours Day, which he
regards as not practicable for, at any rate, a very long time to come.
On the vexed question of the labour of married women, Dr. Schäffle is
less explicit, and seems somewhat to halt between two opinions. He will
not commit himself to the desirability of an absolute prohibition of it,
but it seems clear that his sympathies lean that way.
The discussion of the Social Democratic proposals in the German
Reichstag, known as the Auer Motion, is very careful and appreciative,
but Dr. Schäffle takes care to disentangle the really Socialistic
element in them, and will only support the introduction of Labour Boards
and Labour Chambers as consultative bodies, not as holding any power of
control over the Inspectorate. He is willing to allow to the working
classes full vent for their grievances, but dreads to see them entrusted
with the actual power of remedying them.
His plea for more international exchange of opinions and international
uniformity of practice is one which must be echoed by all who have the
cause of Labour at heart. To that larger sense of brotherhood which
extends beyond the bounds of country we must look for the accomplishment
of the Social Revolution which is surely on the way. On a task so large,
and involving such far-reaching issues to the progress of the world, the
nations must take hands and step together if the results are to be of
permanent value. The paralyzing dread of war, the competition of foreign
workmen, the familiar Capitalist weapon that "trade will leave the
country" if the workers' claims are conceded--all these dangers in the
way can only be met by the drawing closer of international bonds, by the
intercommunication of those in all countries who are fired by the new
ideals, and are making towards an ordered Social peace out of the chaos
of conflicting and competing energies and interests in which we live.
It cannot but be well to be reminded, as Dr. Schäffle reminds us, of the
strong expression of opinion uttered by the Berlin International Labour
Conference as to the beneficial results which might be looked for from a
series of such gatherings, or to ask ourselves, why should not England
be the next to convene a Labour Conference to gather up the experiences
of the last few years, which have been so full of movement and agitation
in the Labour world, as well as to give to other nations the benefit of
the earnest and strenuous investigations, now nearly drawing to a close,
of our own Royal Commission on Labour?
At the request of Dr. Schäffle, the von Berlepsch Bill, which has been
brought in by the German Government in order to carry out the
recommendations of the Berlin Conference, has been inserted as an
Appendix at the end of the English edition.
A. C. MORANT.
CONTENTS.
BOOK I.
PAGE
INTRODUCTORY 1
CHAPTER
I. DEFINITION OF LABOUR PROTECTION 7
II. CLASSIFICATION OF INDUSTRIAL WAGE-LABOUR
FOR PURPOSES OF PROTECTIVE LEGISLATION.--DEFINITION
OF FACTORY LABOUR 23
III. SURVEY OF THE EXISTING CONDITIONS OF LABOUR PROTECTION 45
IV. MAXIMUM WORKING-DAY 53
BOOK II.
V. PROTECTION OF INTERVALS OF WORK.--DAILY
INTERVALS.--NIGHT REST AND HOLIDAYS 114
VI. ENACTMENTS PROHIBITING CERTAIN KINDS OF WORK 126
VII. EXCEPTIONS TO PROTECTIVE LEGISLATION 140
VIII. PROTECTION IN OCCUPATION.--PROTECTION OF
TRUCK AND CONTRACT 146
IX. RELATION OF THE VARIOUS BRANCHES OF LABOUR
PROTECTION TO EACH OTHER 161
X. TRANSACTIONS OF THE BERLIN LABOUR CONFERENCE,
DEALING WITH MATTERS BEYOND THE RANGE OF LABOUR
PROTECTION.--DALE'S DEPOSITIONS ON COURTS OF
ARBITRATION, AND THE SLIDING SCALE OF WAGES
IN MINING 164
XI. THE "LABOUR BOARDS" AND "LABOUR CHAMBERS"
OF SOCIAL DEMOCRACY 171
XII. FURTHER DEVELOPMENT OF PROTECTIVE ORGANISATION 187
XIII. INTERNATIONAL LABOUR PROTECTION 196
XIV. THE AIM AND JUSTIFICATION OF LABOUR PROTECTION 205
APPENDIX--
I. INDUSTRIAL CODE AMENDMENT BILL (GERMANY) 211
THEORY AND POLICY OF LABOUR PROTECTION.
BOOK I.
INTRODUCTORY.
In past years German Social Policy was directed chiefly to _Labour
Insurance_, in which much entirely new work had to be done, and has
already been done on a large scale; but in the year 1890 it entered upon
the work of _Labour Protection_, which was begun long ago in the
Industrial Code, and this work must still be carried on further and more
generally on the same lines.
This result is due to the fact that the Emperor William II. has
inscribed upon his banner this hitherto neglected portion of social
legislation (which, however, has long been favoured by the Reichstag and
especially by the Centre), has placed it on the orders of the day among
national and international questions, and has launched it into the
stream of European progress with new force and a higher aim.
The subject is one of the greatest interest in more than one respect.
It was to all appearance the cause of the retirement of Prince Bismark
into private life. Some day, perhaps, the historian, in seeking an
explanation of this important event in the world's history, will inquire
of the political economist and social politician, whether Labour
Protection, as conceived by the Emperor--especially as compared to
Labour Insurance--were after all so bold a venture, so new a path, so
daring a leap in the dark as to necessitate the retirement of that great
statesman. I am inclined to answer in the negative, and to assume that
the conversion of Social Policy to Labour Protection was the outward
pretext rather than the real motive of the unexpected abdication of
Prince Bismark of his leading position in the State. The collective
result of my inquiry must speak for itself on this point.
The turn which Social Policy has thus taken in the direction of Labour
Protection, raises the question among scientific observers whether it is
true that the science of statecraft has thus launched forth upon a path
of dangerous adventure and rash experimentation, and grappled with a
problem, compared with which Prince Bismark's scheme of Labour Insurance
sinks into insignificance. Party-spirit, which loves to belittle real
excellence, at present lends itself to the view which would minimise the
significance of Labour Insurance as compared with Labour Protection. But
this is in my opinion a mistake. Though it is impossible to overestimate
the importance for Germany of this task of advancing over the ground
already occupied by other nations, and of working towards the
introduction of a general scheme of international Labour Protection
calculated to ensure international equilibrium of competition, yet in
this task Labour Protection is, in fact, only the necessary supplement
to Labour Insurance. Both are of the highest importance. But neither the
one nor the other gives any ground for the charge that we are playing
with the fires of social revolution. The end which the Emperor William
sought to attain at the Berlin Conference, in March, 1890, and by the
Industrial Code Amendment Bill of the Minister of Commerce, _von
Berlepsch_, is one that has already been separately attained more or
less completely in England, Austria and Switzerland. It is in the main
merely a question of extending the scope of results already attained in
such countries, while what there is of new in his scheme does not by any
means constitute the beginning of a social revolution from above. The
policy of the Imperial Decree of February 4th, 1890, and of the Bill of
_von Berlepsch_, in no wise pledges its authors to the Radicals. A calm
consideration of facts will prove incontestably the correctness of this
view.
However, it is not any politico-economic reasons there may have been for
the retirement of Prince Bismark, nor the very common habit of
depreciating the value of Labour Insurance, nor yet the popular theory,
false as I believe it to be, that the Emperor's policy of Labour
Protection is of a revolutionary character, which leads me to take up
once again this well-worn theme.
If the "Theory and Policy of Labour Protection" were by this time full
and complete, I would willingly lay it aside in order to take into
consideration the significance of Bismark's retirement from the point of
view of social science, or to attempt to reassure public opinion as to
the conservative character of the impending measures of Labour
Protection. But this is not the case.
It is true we have before us an almost overwhelming mass of material in
the way of protocols, reports of commissions, judicial decisions,
resolutions and counter-resolutions, proposals, petitions and motions,
speeches and writings, pamphlets and books. But we are still far from
having, as the result of a clear and comprehensive survey of the whole
of this material, a complete theory of Labour Protection; for the
political problems of Labour Protection, especially those touching the
so-called Maximum Working Day and the organisation of protection, are
more hotly disputed than ever. In spite of the valuable and careful
articles on Labour Protection, in the _Encyclopædia_, of von Schönberg
and of Conrad, with their wealth of literary illustration, in spite of
the latest writings of Hitze,[1] which, for moderation and clearness,
vigour of thought, and wealth of material, cannot be too highly
commended, there still remains much scientific work to be done. I myself
have actually undertaken a thorough examination of all this literary and
legislative material, in view of the national and international efforts
of to-day towards the progressive development of Labour Protection, with
the result that I am firmly convinced that both Theory and Policy of
Labour Protection are still deficient at several points, and in fact
that we are far from having placed on a scientific footing the dogmatic
basis of the whole matter.
We have not yet a sufficiently exact definition of the meaning of Labour
Protection, nor a clear distinction between Labour Protection and the
other forms of State-aids to Labour, as well as of other aids outside
the action of the State.
We have not a satisfactory classification of the different forms of
Labour Protection itself with reference to its aim and scope,
organisation and methods.
We still lack--and it was seriously lacking at the Labour Conference at
Berlin--a fundamental agreement as to the grounds on which Labour
Protection is justified, its relation to freedom of contract, and the
advisability of extending it to adults.
The discussion is far from being complete, not only with reference to
the real problems of Labour Protection, but also and especially with
reference to the organs, methods and course of its administration. Many
proposals lie before us, some of which are open to objection and some
even highly questionable.
But we find scarcely any who advocate the simplification and cheapening
of this organisation in connection with the systematised collective
organisation of all matters pertaining to labour, together with the
separation, as far as possible, of such organisation from the regular
administrative organs.
The proposals of Social Democracy with respect to "Labour-boards" and
"Labour-chambers," are hardly known in wider circles, and have nowhere
received the attention to which in my opinion they are entitled.
The proposed legislation for the protection of labour offers therefore a
wide field for careful and scientific investigation. I have prepared the
following pages as a contribution to this task.
FOOTNOTE:
[1] _Protection for the Labourer!_ Cologne, 1890.
CHAPTER I.
DEFINITION OF LABOUR PROTECTION.
The meaning of the term Labour Protection admits of an extension far
beyond the narrow and precise limits which prevailing usage has assigned
to it, and beyond the sphere of analogous questions actually dealt with
by protective legislation.
In its most general meaning the term comprises all conceivable
protection of every kind of labour: protection of all labour--even for
the self-supporting, independent worker; protection in
service-relations, and beyond this, protection against all dangers and
disadvantages arising from the economic weakness of the position of the
wage-labourer; protection of all, not merely of industrial
wage-labourers; protection not by the State alone, but also by
non-political organs; the ancient common protection exercised through
the ordinary course of justice and towards all citizens, and thus
towards labourers among the rest. All this so far as the actual word is
concerned may be included in the term Labour Protection.
But to use it in this sense would be to incur the risk of falling into a
hopeless confusion as to the questions which lie within the scope of
actual Labour Protection, and of running an endless tilt against
fanciful exaggerations of Labour Protection.
The term Labour Protection, according to prevailing usage and according
to the aim of the practical efforts now being made to realise it, has a
much narrower meaning, and this it is which we must strictly define and
adhere to if we wish to avoid error and misconception. Our first task
shall be to determine this stricter definition; and here we find
ourselves confronted by a series of limitations.
(1) Labour Protection signifies only protection against the special
dangers arising out of service-relations, out of the personal and
economic dependence of the wage-labourer on the employer.
Labour Protection does not apply therefore to independent workers: to
farmers or masters of handicrafts, to independent workers in the fine
arts and liberal professions. Labour Protection applies merely to
wage-labourers.
For this reason Labour Protection has no connection with any aids to
labour, beyond the limits of protection against the employer in
service-relations; it has nothing to do with any attempts to ward off
and remedy distress of all kinds, and otherwise to provide for the
general welfare of the working classes; its scope does not extend to
provisions for meeting distress caused by incapacity for work, or want
of work, _i.e._ Labour Insurance, nor to the prevention and settlement
of strikes, nor to improved methods of labour-intelligence, nor to
precautions against disturbances of production or protection against the
consequences of poverty by various methods of public and private
charity, savings-banks, public health-regulations, inspection of food,
and suppression of usury by common law. Although these are mainly or
principally concerned with labourers, and are attempts to protect them
from want, yet they are not to be included in Labour Protection in its
strict sense. For this, as we have seen, includes only those measures
and regulations designed to protect the wage-labourer in his special
relations of dependence on his employer.
And indeed we must draw the limit still closer, and apply the word only
to the relations between certain defined wage-earners and certain
defined employers. Measures which are designed to protect the entire
labouring class or the whole of industry, do not, strictly speaking,
belong to the category of Labour Protection. Neither can we apply the
term to that protection which workmen and employers alike should find
against the recent abnormal development of prison competition, although
by recommending this measure in their latest Industrial Rescript (the
Auer Motion[2]) the Social Democrats by a skilful move have won the
applause of small employers especially. For the same reason we do not
include protection by criminal law against the coercion of non-strikers
by strikers, exercised through personal violence, intimidation or abuse;
these are measures to preserve freedom of contract, but they have no
connection with the relations of certain defined wage-earners to certain
defined employers. Furthermore, Labour Protection does not include
preservation of the rights of unions, and of freedom to combine for the
purpose of raising wages, except or only in so far as particular
employers, singly or in concert, by means of moral pressure or
otherwise, seek to endanger the rights of particular wage-earners in
this respect. It is almost unnecessary to add that Labour Protection
does not include the "protection of national labour" against foreign
labourers and employers, by means of protective duties, for this is
obviously not protection against dangers arising from the service
relations between certain defined wage-earners and employers.
But although none of these measures of security that we have enumerated
are to be included in Labour Protection, we must on the other hand guard
against mistaken limitations of the term. It would be a mistaken
limitation to include only security against material economic dangers in
and arising from the relations of dependence, and to exclude moral and
personal safeguards in these relations--protection of learning and
instruction, of education, morality and religion, in a word the complete
protection of family life.
Labour Protection does not indeed include the whole moral and personal
security of the wage-earner, but it does include it, and includes it
fully and entirely, in so far as the dangers which threaten this
security arise out of the _condition of dependence of the worker_ either
within or beyond the limits of his business. The whole scope of Labour
Protection embraces all claims for security against inhumane treatment
in service-relations, treatment of the labourer "as a common tool," in
the words of Pope Leo XIII.
(2) Labour Protection does not include the free self-help of the worker,
nor free mutual help, but only a part (cf. 3) of the protection afforded
to wage-earners by the State, if necessary in co-operation with
voluntary effort.
Labour Protection in its modern form is only the outcome of a very old
and on the whole far more important kind of Labour Protection, in the
widest sense of the term, which far from abolishing the old forms of
self-help and mutual help, actually presupposes them, strengthens,
ensures and supplements them wherever the more recent developments of
national industry render this necessary. Labour Protection, properly so
called, only steps in when self-help and mutual help, supplemented by
ordinary State protection, fail to meet the exigencies of the situation,
whether momentarily and on account of special circumstances, or by the
necessities of the case.
This second far-reaching limitation of the meaning needs a little
further explanation.
Labour Protection in its more extended sense always meant and must still
mean, first and foremost, self-help of the workers themselves; in part,
individual self-help to guard against the dangers of service, in part,
united self-help by means of the class organisation of trades-unions.
Side by side with this self-help there has long existed a comprehensive
system of free mutual help.
This assumes the form of family protection exercised by relations and
guardians against harsh employers, and by the father, brother, etc., in
their relation of employers in family industries; also the somewhat
similar form of patriarchal protection extended by the employer to his
workpeople.
Furthermore it includes that protection afforded by the pressure of
religion, the common conscience or public opinion upon the consciences
of employers, acting partly through the organs of the press, clubs, and
other vehicles of expression, as well as through non-political public
institutions, and corporate bodies of various kinds, especially and more
directly through the Church, and also indirectly through the schools.
Without family and patriarchal protection, without the protection
afforded by civil morality and religious sentiment, Labour Protection,
in its strict sense, working through the State alone, would be able to
effect little.
Family and patriarchal protection outweigh therefore in importance all
more modern forms of Labour Protection, and will always continue to be
the most efficacious. The protection of the Church has always been
powerful from the earliest times.
Self-help and mutual help, moral and religious, effect much that
State-protection could not in general effect, and therefore it is not to
be supposed that they could be dispensed with. But they must not be
included in Labour Protection, strictly so called, for this only
includes protection of labour by the State, and indeed only a part even
of this (cf. 3).
(3) For instance, Labour Protection does not include all judicial and
administrative protection extended by the State to the wage-labourer,
but only such special or extraordinary protection as is directed against
the dangers arising from service relations, and is administered through
special, extraordinary organs, judicial, legislative and representative.
This special protection has become necessary through the development of
the factory system with its merciless exploitation of wage-labour, and
through the weakening of the patriarchal relations in workshops and in
handicrafts. In this respect Labour Protection is the special modern
development of the protection of labour by the State.
Labourers and employers alike are guaranteed an extensive protection of
life, health, morality, freedom, education, culture, and so on, by the
ordinary protective agencies of justice and of police, exercised
impartially towards all citizens, and claimed by all as their right.
Long before there was any talk of Labour Protection, in the modern sense
of the term, this kind of protection existed for wage-labour as against
employers. But in the strict sense of the term Labour Protection
includes only the special protection which extends beyond this ordinary
sphere, the special exercise of State activity on behalf of labourers.
Even where this extraordinary or special Labour Protection is exercised
by the regular administrative and judicial authorities, it still takes
the form of special regulations of private law, punitive and
administrative, directed exclusively or mainly to the protection of
labourers in their service-relations. To this extent, at any rate, it
has a special and extraordinary character. Very frequently, as for
instance in the German Industrial Code, such protection is placed in the
hands of the ordinary administrative and judicial authorities, and a
portion of it will continue to be so placed for some time to come.
But the administration of Labour Protection, properly so called, is
tending steadily to shift its centre of gravity more and more towards
special extraordinary organs. These organs are partly executive
(hitherto State-regulated factory inspection and industrial courts of
arbitration), but they are also partly representative; the latter may be
appointed exclusively for this purpose, or they may also be utilized for
other branches of work in the interests of the labourer and for the
encouragement of national industry, and they bear in their organisation,
or at least to some extent in their action, the character of public
institutions.
(4) Labour Protection is essentially protection of industrial
wage-labour, and excludes on the one hand the protection of agricultural
workers and those engaged in forestry, as well as of domestic servants,
and on the other hand, the protection of State officials and public
servants.
It may no doubt be that special protection is also needed for
non-industrial wage-labour and for domestic servants, but the material
legal basis, the organisation and methods of procedure, of these further
branches of Labour Protection, will demand a special constitution of
their own. The regulations of domestic service and the Acts relating to
State-service in Germany constitute indeed a kind of Labour Protection,
certainly very incomplete, and quite distinct from the rest of Labour
Protection, properly so-called. Even if the progress of the Social
Democratic movement in this country were to bring on to the platform of
practical politics the measure already demanded by the Social Democrats
for the protection of agricultural industry[3] on a large scale, even
then protection of those engaged in agriculture and forestry would need
to receive a special constitution, as regards the courts through which
it would be administered, the dangers against which it would be
directed, and its methods and course of administration. Whilst therefore
we readily recognise that both protection of domestic servants and a
far-reaching measure of agricultural Labour Protection, in the strict
sense of the term, may eventually supervene, we yet maintain that this
must be sharply distinguished for purposes of scientific, legislative,
and administrative treatment from what we at present understand by
Labour Protection.
Moreover, even now agricultural labour is not entirely lacking in
special protection. The regulations for domestic service contain
fragments of protection of contract and truck protection. Russia has
passed a law for the protection of agricultural labour (June 12, 1886)
in Finland and the so-called western provinces, which regulates the
peculiar system of individual and plural[4] agreements between small
holders and their dependents, and is also designed to afford protection
of contract to the employer.
(5) The industrial wage-labour dealt with by the Industrial Code, and
the industrial wage-labour dealt with by State Protection, are not
entirely identical, though nearly so.
For on the one hand there are wage-labourers employed in occupations not
included in industrial labour in the sense of the Code, who yet stand in
need of special protection from the State; while on the other hand there
are bodies of industrial labourers dealt with in the Code, who do not
need or who practically cannot have this extraordinary protective
intervention of the State, being already supplied with the various
agencies of free self-help, family insurance, and mutual aid.
When we are concerned with Labour Protection therefore, both in theory
and practice, it is evident that we have to deal with industrial
wage-labour in a limited sense, not in the general sense in which the
term occurs in the Industrial Code, while at the same time we must not
fail to recognise that even the older Industrial Acts, in so far as they
referred to wage-labour, were already Labour-protective Acts of a kind.
The limits of wage-labour as affected by the Industrial Code, and of
wage-labour as affected by State protection, have this in common, that
both extend far beyond wage-service in manufacturing business
(industry, in its strict sense). For this reason we must examine into
this point a little more closely in order to determine the exact scope
of Labour Protection.
In our present Industrial Code the terms "industrial labour" and
"industrial establishments" are almost uniformly used in the sense given
to them by the German Industrial Code of 1869. Industrial labour is
wage-labour in all those occupations within the jurisdiction of the
Code.
But the Code gives no positive legal definition of the word "industry."
Both in administrative and judicial reference the word is used loosely
as in common parlance, and the Code only particularises certain
industries out of those with which it deals as requiring special
regulations and special organs for the administration of these special
regulations.
According to administrative and judicial usage in Germany, corresponding
to customary usage, the word "industry" is now applied to all such
branches of legitimate private activity as are directed regularly and
continuously towards the acquirement of gain, with the following
exceptions: agriculture and forestry (market-gardening excepted),
cattle-breeding, vine-growing, and the manufacturing of home-raised
products of the soil (except in cases where the manufacturing is the
main point and the production of the material only a means towards
manufacturing, as in the case of sugar refineries and brandy
distilleries).
In spite of this last limitation the meaning of the term "industrial
labour," as used in the Code, extends far beyond the limits of
wage-labour in the manufacturing of materials. For the provisions of
the Imperial Industrial Code for the protection of labour expressly
include, either wholly or partially, mining industries, commerce,
distribution, and all carrying industries other than by rail and sea.
But the need of Labour Protection is also felt in certain occupations
which are indeed counted as industries in common parlance, but which are
expressly excluded from the jurisdiction of the Industrial Code; amongst
these are the fisheries, pharmacy, the professions of surgery and
medicine, paid teaching in the education of children, the bar and the
whole legal profession, agents and conductors of emigration, insurance
offices, railroad traffic and traffic by sea, _i.e._ as affecting the
seamen.
Clearly no exception ought to be taken to the extension of Labour
Protection to any single one of these branches of industry, in so far as
they are carried on by wage-labourers in need of protection. This ought
especially to apply to private commercial industries with reference to
Sunday rest, and to public means of traffic, in the widest sense of the
term, and to navigation. A fairly comprehensive measure of protection
for this last branch of work has already been provided in Germany by the
Regulations for Seamen of December 27, 1872.
Furthermore, the need of protection also exists in callings which do not
fall under the head of industries even in the customary use of the term.
Taking our definition of industry as an exercise of private activity for
purposes of gain, we clearly cannot include in it the employments
carried on under the various communal, provincial and imperial
corporate bodies, at least such of them as are not of a purely fiscal
nature, but are directed towards the fulfilment of public or communal
services, not even such as are worked at a profit. There is clearly,
however, a necessity for protection in government work, and this has
already been recognised (cf. the _von Berlepsch_ Bill, art. 6, § 155, 2,
Appendix).
The legislative machinery of Labour Protection is not confined to the
Industrial Code. There are two ways of enacting such protection: extra
protection going beyond the ordinary Industrial Regulations may be
enacted by way of amendments or codicils to their ordinary protective
clauses, or on the other hand it may be lodged in special laws and
enactments, to be worked by specially constituted organs. The latter
method has to be followed in the case of municipal or State-controlled
means of traffic. In Germany, Labour Protection in mining industries is
supplied by the Industrial Code, with special additions however in the
form of Mining Acts to designate the scope of the protection and the
means through which it works. There are, moreover, also special Acts,
such as those which apply to the manufacture of matches.
All wage-earners, not only those protected by the Industrial Code, but
also those protected by special acts and special organs, are included in
that industrial wage-labour which comes within the scope of protective
legislation. By industrial wage-earners we mean therefore all such
wage-earners as need protection in the dependent relations of service,
whether such be enumerated in the Industrial Code or by definition
expressly excluded from it.
This is the conclusion at which the Berlin Conference also finally
arrived. The report of the third commission (pp. 77 and seq.) states:
"Before concluding its task, the third commission has deemed it
advisable to define the strict meaning of certain terms used in the
Resolutions adopted, especially the phrase 'industrial establishments'"
(_établissements industriels_). Several definitions were proposed. First
the delegate from the Netherlands proposed the following definition: "An
industrial establishment is every space, enclosed or otherwise, in which
by means of a machine or at least ten workmen, an industry is carried
on, having for its object the manufacture, manipulation, decoration,
sale or any kind of use or distribution of goods, with the exception of
food and drink consumed on the premises."
The proposal of the Italian delegates ran as follows: "Any place shall
be called an industrial establishment in which manual work is carried on
with the help of one or more machines, whatever be the number of workmen
employed. Where no engine of any kind is used, an industrial
establishment shall be taken to mean any place where at least ten
workmen work permanently together."
A French delegate, M. Delahaye, read out the following suggestion, which
he proposed in his own name: "An industrial establishment denotes any
house, cellar, open, closed, covered or uncovered place in which
materials for production are manufactured into articles of merchandise.
Moreover, a certain number (to be agreed on) of workmen must be engaged
there, who shall work for a certain number (to be agreed on) of days in
the year, or a machine must be used."
The Spanish delegate stated that he would refrain from voting on the
question, because he was of opinion that instead of using the term
"industrial establishment," it would be better to say "the work of any
industries and handicrafts which demand the application of a strength
greater than is compatible with the age and physical development of
children and young workers." According to his opinion no weight ought to
be attached to the consideration whether the work is carried on within
or outside of an establishment. After a discussion between the delegates
from France, Belgium and Holland, and after receiving from the
Luxembourg delegate a short analysis of foreign enactments on this
point, the Committee unanimously adopted a proposal made by the
delegates from Great Britain, and supported by Belgium, Germany,
Hungary, Luxembourg, and Italy. The proposal was as follows: "By
'industrial establishments' shall be understood those which the Law
regulating work in the various countries shall designate as such whether
by means of definition or enumeration."
A consideration of the discussions raised in paragraphs 1 to 5 results
in the following definition of Labour Protection: _the extraordinary
protection extended to those branches of industrial wage-labour which
claim, and are recognized as requiring, protection against the dangers
arising out of service relations with certain employers, such
protection being exercised by special applications of common law,
punitive and administrative, either through the regular channels or by
specially appointed administrative, judicial, and representative
organs._
The Resolutions of the Berlin Conference, and the protective measures
submitted to the German Reichstag early in the year 1890, have, as we
shall find, strictly confined themselves to this essentially limited
definition of Labour Protection.
It appears as though hitherto no clear theoretical definition of the
idea of Labour Protection has been forthcoming. But the necessity for
drawing a sharp distinction at least between Labour Protection and all
other kinds of care for labour is often felt. Von Bojanowski speaks very
strongly against vague extensions of the meaning: "The matter would
become endlessly involved," he says, "if, as has already happened in
some cases, we were to extend the idea of protective legislation to
include all such enactments (arising out of other possibilities based
upon other considerations) as grant aid to workers in any kind of work
or in certain branches of work, or such as are based on the rights of
labour as such, and are therefore general in their application, or such
as seek to further all those united efforts which are being made in
response to the aspirations of the working population or from
humanitarian considerations. This would result either in confounding it
with an idea which we ought always carefully to distinguish from it, an
idea unknown in England, that of the so-called 'committee of public
safety,' or it would lead to more or less arbitrary experiments."
FOOTNOTES:
[2] A motion brought forward in the German Reichstag in July, 1885, and
again in 1890 in the form of an amendment to the Industrial Code, by all
the Social Democratic members sitting there; called after Auer, whose
name stands alphabetically first on the list of backers.--ED.
[3] For regulating the use of machinery in agriculture. (See the Auer
Motion.)
[4] The _artell_ system, under which groups of labourers with a chosen
leader contract themselves to the various employers in turn, for the
performance of special agricultural and other operations.
CHAPTER II.
CLASSIFICATION OF INDUSTRIAL WAGE-LABOUR FOR PURPOSES OF PROTECTIVE
LEGISLATION.--DEFINITION OF FACTORY-LABOUR.
Those forms of industrial wage-labour which are dealt with by protective
legislation do not all receive the same measure of protection, nor are
they all dealt with according to the same method. This is only to be
expected from the constitution of Labour Protection, which is an
extraordinary exercise of State interference in cases where it is
specially necessary.
All over the world we find that industrial wage-labour requires
protection of various kinds, differing, that is, not only in its nature
but in the course and method of its application. On account of these
very differences, before we can go a step further in the elucidation of
the Theory and Policy of Labour Protection, we must divide industrial
wage-labour into classes, according to the kind of protection which is
needed, and the manner in which such protection is applied by protective
legislation. It will now be our task, therefore, to classify them, and
to be sure that we arrive at a clear idea of the various classes into
which they fall for the purposes of protective legislation, some of
which may not perhaps be readily apparent at first sight.
The varieties of protection needed by industrial wage-labour arise,
partly out of dangers peculiar to the particular occupation in which the
wage-labourer is employed, and partly out of the personal
characteristics and position of the labourer to be protected; _i.e._
they are partly exterior and partly personal.
When the protection is against exterior dangers we have to consider
sometimes the great diversity of conditions in the different occupations
and industries, and sometimes the special manner in which workmen may be
affected within the limits of a single occupation peculiar to some
special branch of industry. When the protection is of the kind which I
have called personal, the need for it arises partly out of the special
dangers to which the protected individual is liable _outside_ the actual
limits of his business, partly out of the special dangers attached to
his position _in_ that business.
Hence results the following classification of industrial wage-labour,
according to the kind of protection required:--
I. Labourers requiring protection against _exterior_ dangers:
_a._ According to the kinds of occupation:
1. Having reference to the different branches of industry:
Wage-labour in mining, manufacture, trade, traffic and transport,
and in service of all kinds.
2. Having reference to the special dangers of employment within any
particular branch of industry: dangerous--non-dangerous work.
_b._ According to type of business:
1. Having reference to the position or personality of the employer:
Wage-labour under private employers--wage-labour under government.
2. Having reference to the choice of the labourers by the employer,
and the nature of their mutual relations.
Factory-labour,
Quasi-factory labour (especially labour in workshops of a similar
nature to factories), other kinds of workshop labour,
Household industries (home-labour),
Family labour.
II. Labourers requiring protection against _personal_ dangers:
_a._ Having reference to the common need of protection as men and
citizens.
1. Adult--juvenile workers;
2. Male--female workers;
3. Married--unmarried female workers;
4. Apprentices--qualified wage-workers;
5. Wage-workers subject to school duties--exempt from school
duties,
_b._ Having reference to the need of protection arising out of
differences in the position occupied by the wage workers in the
business:
Skilled labourers (such as professional wage-workers, business
managers, overseers and foremen; or technical wage-workers,
mechanics, chemists, draughtsmen, modellers); unskilled labourers.
I. PROTECTION AGAINST EXTERIOR DANGERS.
A glance at existing legislation on Labour Protection, or even only at
the various paragraphs of the _von Berlepsch_ Industrial Code Amendment
Bill, clearly shows the definite significance of all these foregoing
classes in the codification of protective right. Each one of these
classes is treated both generally and specifically in the Labour Acts.
Mining industries, industrial (manufacturing) work, and wage service in
trade, traffic, and transport, do not all receive an equal measure of
Labour Protection.
Differences in the danger of the occupation play a great part in the
labour-protective legislation of every country.
Labour Protection has therefore hitherto been, and will probably for
some time continue to be in effect, protection of factory and
quasi-factory labour (I.B. 2, _supra_), but in all probability it will
gradually include protection of household industry also. Even the
English Factory and Workshop Acts do not, however, extend protection to
wage-labour in family industry.
Business managers have hitherto received no protection, or a much
smaller measure than that extended to common wage-labourers.
Furthermore, Labour Protection has hitherto been administered through
different channels, according as it is applied to professions of a
public nature, in which discipline is necessary, especially the
military profession, or to professions of a non-public nature.
Lastly, with regard to individual differences of need for labour
protection, adult labour has hitherto received only a restricted measure
of protection, whereas the labour of women and children has long been
fairly adequately dealt with; the prohibition of employment of married
women in factory-labour still remains an unsolved problem in the domain
of Labour Protection question, but it is a measure that has already
received powerful support.
It must of course be understood that Labour Protection is still in
process of development. But according to all present appearances, there
is no prospect, at any rate for some time to come, of its general
extension to all classes of industrial wage-labour, for instance that
the prohibition of night work will be extended to all adult male
labourers, or that Sunday work will be absolutely prohibited in carrying
industries and in public houses. We must even do justice to the Auer
Motion in the Reichstag, by acknowledging that it does not go the length
of demanding the universal application of such protection.
In the existing positive laws, and in the further demands for protection
put forward at the present day, mining industries hold the first place,
then all kinds of work dangerous to life and health, household industry,
the labour of women and young persons, and the labour of married women.
The reader will easily understand the reasons for this; he only requires
to establish clearly in his own mind, for each of these classes of
industrial wage-labour, the grounds on which the claim to such
objective and subjective protection is based, and wherein they differ
from the cases where free self-help and mutual help suffice, or even the
ordinary protection afforded by the State. However, this special inquiry
is not necessary here; the explanation desired will be found in the
study of the several applications and modes of operation of Labour
Protection dealt with in the following pages.
But on the other hand it is important that we should now endeavour to
form a clear idea of those larger divisions of industrial wage-labour
with which a protective code has to deal, in order that we may be sure
of our ground in proceeding with our investigations.
_Factory-Labour._
No small difficulty arises from the question: "What is factory-labour?"
And yet it is precisely this kind of wage-labour which has received the
most comprehensive measure of protection, and become the standard by
which protection is meted out to all similar kinds of employment.
The labour-protective laws of various governments have met the
difficulty in various ways; but nowhere is a positive legal definition
given of the Factory.
In the case of Germany, especially, it is not easy to form a clear idea
of the meaning attached to factory labour by the hitherto existing
protective laws, and by the _von Berlepsch_ Industrial Bill.
We may arrive at a clearer conception of what a factory really is in
the protective sense of the word, by examining first the essential
characteristics of such kinds of employment as are placed by the
protective laws on the _same_ (or nearly the same) footing as factory
labour, and then observing the peculiarities of such kinds of
employments as are legally _excluded_ from factory-labour protection.
The same characteristics in all those points in which it is affected by
protection, will be found in the Factory, but the peculiarities of the
other contrasted class will be absent from the Factory.
In the Imperial Industrial Code, especially in the _von Berlepsch_ Bill,
the following four categories of employment are placed on the same
footing as the Factory; in the case of the first three the inclusion is
obligatory, in the case of the last it is optional and depends on the
pleasure of the Bundesrath (local authority):
1. Mines, salt-pits (salines), preparatory work above ground, and
underground work, in mines and quarries (other than those referred
to in the Factory Regulations).
2. Smelting-houses, carpenter's yards, and other building-yards,
wharves, and such brick-kilns, mines, and quarries as are worked
above ground and are not merely temporary and on a small scale.
3. Those work-shops in which power machinery is employed (straw,
wind, water, gas, electricity, etc.) not merely temporarily.
4. "Other" workshops to which factory protection (except as
regards working rules) can be extended under the Imperial decree,
at the discretion of the Bundesrath.[5]
A common designation is needed which will include all these four
categories.
We might use the word "workshops" were it not that the employments
enumerated in classes 1 and 2 cannot precisely be included in
"workshops," and were it not that class 4 as it appears in protective
legislation denotes "another kind" of workshop distinct from that of
class 3.
In default of a more accurate expression we will use therefore the term
"quasi-factory business" as a general designation for those classes of
business which are placed by the protective laws on the same, or
approximately the same, footing as the Factory.
Factory protection is not extended to those "workshops in which the
workers belong exclusively to the family of the employer," therefore not
to family-industry in workshops, and still less to family-industry not
carried on in workshops, nor to work in the dwelling-houses of the
employer, or (as is usually the case in household industry) of the
worker (orders of all kinds executed at home, household industry). At
least the new § 154 of the Bill does not bring such work into any closer
relationship than before with the Factory.
By contrast and comparison the following characteristics (_a_ to _i_)
will help us towards a fuller conception of the sense of the Factory
from the point of view of protective legislation, as understood by the
latest German enactments:
_a._ The Factory employs exclusively or mainly those who do not
belong to the family of the employer, and in any case _not merely
those who do_.
_b._ The work of a Factory is entirely carried on outside the
dwelling of the employer and of the wage-worker.
_c._ The work of a Factory is the preparation and manufacture of
commodities (industrial work, including all kinds of printing), not
production or first handling of raw material, as in mining
industries.
_d._ The work of a Factory is work in which the wage-workers are
constantly shut up together in buildings or in enclosures, and is
not work in open spaces, or which moves from place to place, as in
the case of work on wharves, in building yards, etc.
_e._ The work of a Factory is carried on by power machinery, hence
(if this inference _a contrario_ be admissible) not only
hand-manufacture, and thus it appears to include what I have called
quasi-factory business and have mentioned in class 3 (_supra_).
_f._ The work of a Factory is continuous, and
_g._ Is carried on on a large scale, and with a large number of
workpeople, hence (_f_ and _g_) it may be compared to the
quasi-factory business of class 2 (_supra_) for the purposes of a
protective Code.
_h._ The work of a Factory is carried on in workplaces provided by
the employer, not in the rooms of the workers or of a middleman.
_i._ The work of a Factory results in the immediate sale of the
commodities produced, and does not consign them to the wholesale
dealer to be prepared and dressed, or distributed by wholesale or
retail, _i.e._ the Factory has absolute control of the sale of the
commodities produced, in contradistinction to household industry.
Thus the Factory as understood by the German labour-protective laws is
commercially independent (characteristic _i_), industrial (_c_), carried
on on a large scale (_g_), and continuously (_f_), in enclosed (_d_),
specially appointed (_b_) work-rooms provided by the employer (_h_),
with the help of power machinery (_e_), and by wage-workers not
belonging to the family of the employer (_a_).
Purely hand-manufacturing wholesale business should also be counted as
factory-labour; for the fact that workshop business carried on with the
help of power machinery is declared to be on the same footing as
factory-labour means only this: that it presupposes the same need of
protection felt in factories where the business is carried on with the
help of power machinery, as is the case in most factories; it does not
mean that certain kinds of manufacturing wholesale business carried on
without power machinery (of which there are very few) should not be
counted as factories. We are therefore justified in dropping
characteristic _e_ of the theoretical conception of the Factory, as
understood in Germany.
Let us now look at the Swiss Factory Regulations. The Confederate
Factory Act of March 23, 1877, has given no legal definition of the word
"Factory," but only of "protected labour." It extends protection to "any
industrial institution in which a number of workmen are employed
simultaneously and regularly in enclosed rooms outside their own
dwellings." According to the interpretation of the Bundesrath (Federal
Council) "workers outside their dwellings" are those "whose work is
carried on in special workrooms, and not in the dwelling rooms of the
family itself, nor exclusively by members of one family." Furthermore,
all parts of the Factory in which preparatory work is carried on are
subject to the Factory Act, as well as all kinds of printing
establishments in which more than five workmen are employed. The Swiss
Factory Act requires that a Factory shall possess all those
characteristics assigned to it by German protective law, with the
exception, however, of power machinery, and hence it doubtless covers
all manufacturing business in which a number of workmen are employed.
According to Bütcher,[6] in the practical application of
factory-protection in the Confederate States, any industrial
establishment is treated as a factory which employs more than
twenty-five workers or more than five power-engines, in which poisonous
ingredients or dangerous tools are used, in which women and young
persons (under eighteen years) are employed (with the exception of mills
employing more than two workers not belonging to the family), and sewing
business carried on with the help of three or four machines not
exclusively worked by members of the family.
In Great Britain the Factory and Workshop Acts of March 27, 1878, cover
all factory labour, and the bulk of workshop business, _i.e._ all
workshops which employ such persons as are protected by the
Act--children, young persons, and women.
This English Act again furnishes no legal definition of the term.
"According to the meaning of the term, implied in this Act," says von
Bojanowski, "we must understand by a factory any place in which steam,
water, or other mechanical power is used to effect an industrial
process, or as an aid thereto; by 'workshop,' on the other hand, we must
understand any place in which a like purpose is effected without the
help of such power; in neither group is any distinction to be drawn
between work in open and in enclosed places."
Under this Act _factories_ are divided into textile and non-textile
factories. "_Workshops_ are divided into workshops generally, _i.e._
those in which protected persons of all kinds are employed (children,
young persons, and women), with the further subdivisions of specified
and non-specified establishments; into workshops in which only women,
but no children or young persons are employed; and lastly, domestic
workrooms in which a dwelling-room serves as the place of work, in which
no motive power is required, and in which members of the family
exclusively are employed."
Domestic work-rooms in which only women are employed do not come under
the Act, nor yet factories, such as those for the breaking of flax,
which employ only female labour. Bakeries are included among regulated
workshops, _i.e._ workshops inspected under the Factory Acts, even when
no women or young persons are employed. The Factory, as understood by
the English law, is distinguished by most of the characteristics of the
German acceptation of the term, without however admitting of the
distinction of class _d_ (business carried on in an enclosed space),
whereby protection is also afforded to what we have termed quasi-factory
labour (see p. 36); but on the other hand a special point is made of the
distinction of class _e_, viz. use of power machinery. Thus the English
idea in defining the factory is to insist, not upon the number of
persons employed, but upon the proviso that they are persons within the
scope of the protective laws.
_Workshop Labour._
In the _von Berlepsch_ Bill this is dealt with side by side with factory
labour. It is sometimes placed on the same footing under the various
categories of quasi-factory labour (classes 3 and 4), sometimes it lies
outside the limits of factory protection, in cases where the Bundesrath
does not exercise his privilege of granting extension of protection, and
in cases where the workshop in question is worked entirely by members of
one family.
It would be tautology to include in the definition of the workshop all
the characteristics of the factory named in classes _a_ to _i_. There
may be cases in which the workshop practically includes most of the
characteristics of the factory, but it is only necessary that it should
include the following: business carried on outside the dwelling-rooms
(_b_); preparation and manufacture of commodities (_c_); carried on in
enclosed places (_d_). With the other classes it is not concerned.
According to the English Factory Acts protected workshop labour is not
necessarily carried on in enclosed places.
In treating of German workshop labour for the purposes of the _von
Berlepsch_ Bill, and for future legislation of the same kind, we have to
classify it as follows:
Workshop labour carried on with the help of power-machinery, but
not otherwise answering to the conditions of the factory.
Workshop labour carried on without power-machinery, by hand or by
hand-worked machines.
Labour in workshops where all three kinds are required, _i.e._
power-machinery, hand-work, and hand-worked machines (_e.g._ modern
costume-making in which power sewing-machines are employed.)
The old handicraft labour carried on in special workrooms, either
within or outside the dwelling of the worker.
The characteristic peculiar to the three first divisions of workshops,
and that which distinguishes them from the factory, although they in
some respects resemble it, is that they give employment to but a very
small number of workmen outside the limits of the family which maintains
them.
The British Factory Acts include under the head of workshops those
businesses in which no motive power is used, but in which protected
persons (women, children, and young persons) are employed. Workshops of
this kind are treated with varying degrees of stringency, according to
whether they employ protected persons of all kinds, or only women (no
children or young persons), and according to whether they are carried on
in domestic workshops (dwelling-rooms) or otherwise.
_Household (home) Industry and Family Industry._
Household industry, called also "home industry" in the Auer Motion is
the industrial preparation and manufacture of commodities, not the
production of material, nor trading, carrying, or service industry. It
has therefore characteristic _c_ (viz. that it excludes the production
of raw material and the initial processes in connection therewith) in
common with the factory and all workshops, as well as with that part of
family industry which is not included in household industry properly so
called; the very term Household _Industry_, in fact, indicates this.
The peculiarity of household industry (in the technical sense of the
term) is that it is carried out merely at the orders and not under the
supervision of the contractor. The Imperial Industrial Code, more
especially the _von Berlepsch_ Bill, in extending truck protection to
household industry, understands this term to include all industrial
workers engaged in the preparation of commodities under the direction of
some firm or employer, but not working on the premises of their
employers; and these workers may or may not be required to furnish the
raw materials and accessories for their work. The home-workers carrying
on this kind of preparation of commodities do so as a rule not in
special work-rooms, but in their own dwelling-rooms or houses, or in
little courtyards, sometimes in sheds and outhouses, sometimes even in
the open air. For the rest, they may be either a few workers out of a
family working on their own account, or a whole family working under the
superintendence of one of its members. The most important characteristic
of household industry is that it is work undertaken at the orders of a
third party, therefore that it has no commercial independence, and takes
no part in the sale of its products (characteristic _i_ of factory
labour); and therefore obviously we have no occasion to consider the
other characteristics _d_, _e_, _f_, _g_, _h_, in defining household
industry.
A distinction must be drawn between household industry carried on with
or without the intervention of middlemen; for it takes a very different
form, according to whether the arrangements between the industrial
home-worker on the one side, and the giver of orders and provider of
materials on the other, are made with or without the intervention of
special agencies for ordering, supervising, collecting, and paying
(commission agents, contractors, sweaters). The possible removal--or at
least control and regulation--of the middleman forms one fundamental
problem--hitherto unsolved--of labour protection in the sphere of
household industry, and the protection of industrial home-workers
against their parents and against each other forms another.
_Family Industry._
Family industry to a great extent practically coincides with household
industry, but not necessarily or entirely so; for family
industry--meaning of course the work of preparing and manufacturing
commodities--may be the preparation of goods for independent sale, not
for sale by a third party in a shop or warehouse, and as a matter of
fact this is very largely the case. Family industry sometimes even falls
under the head of workshop labour (cf. § 154 of the _von Berlepsch_
Bill). Its distinguishing characteristic is that it employs only workers
belonging to the same family, hence the exact reverse of the Factory
(see characteristic _a_). It includes all those industrial pursuits "in
which the employer is served only by members of his own family" (Bill, §
154, par. 3).
II.--PERSONAL PROTECTION.
We come now to consider the meaning of the various headings under which
_personal_ protection falls.
_Juvenile Workers._ Juvenile workers of both sexes have long been
subject to protection, and this kind of protection is gradually
spreading all over Europe, and in more and more extended proportions. We
must first ascertain what is the exact meaning of the term juvenile
workers as used in the labour-protective laws.
In contrast to juvenile labour stands adult labour, or more accurately
adult male labour, since adult women--not of course as adults but as
women--are placed more or less on the same footing as juvenile workers
in the matter of protective legislation.
The distinction between adult wage-labour and juvenile wage-labour, and
the subdivision of the latter into infant-labour, child-labour, and the
labour of "young persons," is not of importance in all departments of
labour protection, but it is of the utmost importance in _protection of
employment_, especially in prohibition of employment on the one hand,
and restriction of employment on the other. This prohibition and
restriction of juvenile employment does not apply to all industries, but
only to certain branches of industry and kinds of work, and to specially
dangerous occupations.
In order to determine exactly what is meant by infant-labour,
child-labour, and the labour of "young persons," we must consider the
inferior limit of age below which there is a partial prohibition of
employment, and the superior limit of age beyond which labour is treated
as adult labour as regards protection, receiving none, or only a very
limited measure of it. The inferior limit does not as yet coincide with
the beginning of school duties, nor does the superior limit coincide
with the attainment of majority as recognised by common law.
"Juvenile labour"--permitted but restricted--stands midway between
infant-labour, altogether prohibited in some branches of industry, and
adult labour, permitted and unrestricted, or only slightly restricted;
and within the inferior and superior limits of age it is divided into
child-labour and labour of "young persons."
The industrial laws of northern and southern countries differ in the
inferior limit of age which they assign to prohibited infant-labour, as
distinguished from child-labour permitted but restricted. In Italy this
limit has hitherto been fixed at the completion of the ninth year; in
England and France (in textile, paper, and glass industries), in
Denmark, Spain, Russia, and in most of the industrial States of the
North American Union, at the completion of the tenth year; in Germany
hitherto, and in France (in general factory-labour, in workshops,
smelting-houses, and building-yards), in Austria, Sweden, Holland and
Belgium (Act of 1889), at the completion of the twelfth year; in Germany
it is fixed for the future at the completion of the thirteenth year, as
it soon will be in France also, in all probability--and in Switzerland
at the completion of the fourteenth year.
The proposal of Switzerland at the Berlin Conference to fix the general
inferior limit of age at 14 years was not carried. It has hitherto been
prevented in Germany by the fact that in Saxony and elsewhere school
duties are not exacted to the full extent as late as the age of 14.
The Berlin Conference voted for fixing the limit at the completion of
the twelfth year, while agreeing that the limit of 10 years might be
fixed in southern countries in view of the early attainment of maturity
in hot climates. The limit is fixed higher with regard to protection in
certain specified dangerous or injurious occupations: for boys engaged
in coal mines the limit of 14 years was laid down by the resolutions of
the Berlin Conference.[7]
The superior limit of age of juvenile labour in factories is fixed at 14
years in southern countries (in those represented at the Berlin
Conference); at 16 years in Germany, Austria, and France (in connection
with the fixing of the maximum duration of labour); and at 18 in Great
Britain, Switzerland, and Denmark, and probably soon in France. With
respect to night work and dangerous work, the superior limit (especially
for women) is placed still higher (21 years), wherever such work is not
entirely prohibited.
All wage-workers between the inferior and superior limits of age at
which employment is permitted, are called, as already stated, "juvenile
workers." In many countries a further division of juvenile labour is
made, into children and "young persons." In Germany, Austria, Sweden,
and Denmark--and in future probably in all those countries represented
at the Berlin Conference--this division falls at the age of 14, and in
southern countries at the age of 12 years. "Children," in the meaning
attached to the word by labour-protective legislation, are children of
12 to 14 years (in Germany in future 13 to 14, in Great Britain hitherto
10 to 14); "young persons" are juvenile workers from 14 to 16 years, in
England of 14 to 18 years. In Switzerland juvenile workers are "young
persons" of 14 to 18 years, as none under the age of 14 are employed at
all.
_Male labour and female labour._ Women for the purposes of Labour
Protection include all female workers enjoying special or extended
protection, not only on account of youth, but also from considerations
arising out of their sex and family duties. It is important that we
should be clear on this point, in view of the demand now made for
careful restriction of the employment of married women in
factories,--either for the entire duration of married life or until the
youngest child has reached the age of 14,--for the entire prohibition of
night labour for women, and of the employment of women in certain trades
during the periods of lying-in and of pregnancy.
Just as female labour for our purpose does not mean the labour of all
female persons, so male labour does not include all labour of male
persons, but only of such male persons as have protection on grounds
other than that of youth. Hitherto, male labour has only had practically
a negative meaning in protective law, it has been used in the sense of
the unprotected labour of adult men. The demand for a maximum working
day for all male labourers--at least in factories--and the concession of
this demand have given a positive signification to the term male labour,
as affected by protective legislation.
In considering the careful determination of the meaning of factory
labour, workshop labour, household industry and family labour on the one
hand, and child labour and female labour on the other hand, we cannot be
too careful in guarding against undue limitations of the idea of Labour
Protection. There are many who still take it to mean merely
factory-protection, and indeed only factory-protection of "young
persons."
Labour Protection means something more than protection of industrial
labour, in that it also deals with labour in mining and trading
industry, and it must be extended still further to meet existing needs
for protection.
Neither is industrial Labour Protection factory protection alone, nor
even factory and quasi-factory protection alone, but beyond that it is
also workshop protection, and, especially in its latest developments,
protection of household industry, and perhaps even more or less of
family industry; industrial home-work especially, from the Erz-Gebirge
in Saxony, to the London sweating dens, admits of and actually suffers,
from an amount of oppression which calls for special Labour Protection.
We call attention to these facts in order to clear away certain still
widespread misconceptions before we enter upon the classification of
labour with respect to protective legislation. Particulars will be given
in Chapters IV. to VIII.
FOOTNOTES:
[5] Bill, Art. 6 (new § 154).
[6] Cf. Conrad's _Encyclopædia_, vol. i. p. 154.
[7] _I_, _Ia_ and 6, Resolutions of the Berlin Conference: "It is
desirable that the inferior limit of age, at which children may be
admitted to work underground in mines, be gradually raised to 14 years,
as experience may prove the possibility of such a course; that for
southern countries the limit may be 12 years, and that the employment
underground of persons of the female sex be forbidden."
CHAPTER III.
SURVEY OF THE EXISTING CONDITIONS OF LABOUR PROTECTION.
In the first chapter we learnt to recognise the special character of
Labour Protection in the strict sense of the term. We must further learn
what is its actual aim and scope.
Labour Protection strictly so called, represents presumably the sum
total of all those special measures of protection, which exist side by
side with free self-help and mutual help, and with the ordinary state
protection extended to all citizens, and to labourers among the rest.
And such it really proves to be on examination of the present conditions
and already observable tendencies of Labour Protection.
We shall only arrive at a clear and exhaustive theory and policy of
Labour Protection both as a whole and in detail by examining separately
and collectively all the phenomena of Labour Protection.
This will necessitate in the first place a comprehensive survey of the
existing conditions of Labour Protection, and to this end a regular
arrangement of the different forms which it takes.
In sketching such a survey we have to make a threefold division of the
subject; first, the _scope_ of Labour Protection, in the strict sense
of the term; secondly, the various _legislative methods_ of Labour
Protection; and thirdly, the _organisation_ of Labour Protection (as
regards courts of administration, and their methods and course of
procedure). In considering the scope of Labour Protection we have to
examine the special measures adopted to meet the several dangers to
which industrial wage-labour is exposed.
The following survey shows the actual field of labour protective
legislation, as well as the wider extension which it is sought to give
thereto.
I. SCOPE OF LABOUR PROTECTION.
_A._ Protection against material dangers.
1. Protection of employment; and this of two kinds, viz.:--
(i.) Restriction of employment;
(ii.) Prohibition of employment.
_a._ Protection of working-time with regard to the maximum duration
of labour:
General maximum working-day.
Factory maximum working-day (unrestricted in the case of
adults--restricted in the case of "juvenile workers" and women).
_b._ Protection of intervals of rest:
Protection of daily intervals--of night-work--of holidays--Sundays
and festivals.
2. Protection during work:
Against dangers to life, health, and morals, and against neglect of
teaching and instruction, incurred in course of work.
3. Protection in personal intercourse:--
In the personal and industrial relations existing between the
dependent worker and the employer and his people
(truck-protection).
_B._ Protection of the status of the workman (protection in the
making and fulfilment of agreements) which may also be called:
Protection of agreement, or contract-protection.
1. Protection on entering into agreements of service, and
throughout the duration of the contract:
Protection in terms of agreement and dismissal,
Protection against loss of character.
2. Regulation of admissible conditions of contract, and of legal
extensions of contract.
3. Protection in the fulfilment of conditions after the completion
of service agreements.
II. VARIOUS LEGISLATIVE METHODS OF LABOUR PROTECTION.
Compulsory legal protection--protection by the optional adoption of
regulations.
Regulation under the code--regulation by special enactment.
III. ORGANISATION OF LABOUR PROTECTION.
1. Courts by which it is administered:
_A._ Protection by the ordinary administrative bodies--
Police,
Magistrates,
Church and School authorities,
Military and Naval authorities.
_B._ Protection by specially constituted bodies,
1. Governmental:
_a._ Administrative:
Industrial Inspectorates (including mining experts),
"Labour-Boards,"
Special organs: local, district, provincial, and imperial;
_b._ Judicial:
Judicial Courts,
Courts of Arbitration.
2. Representative: (trade-organisations):
"Labour-Chambers,"
"Labour Councillors,"
Councils composed of the oldest representatives of the trade,
Labour-councils: local, district, provincial, and imperial.
II. METHODS OF ADMINISTRATION AND ADMINISTRATIVE RECORDS.
_a._ Methods:
Hearing of Special Appeals,
Granting periods of exemption,
Fixing of times,
Regulating of fines,
Application of money collected in fines, etc.
_b._ Records:
Factory-regulations,
Certificates of health,
Factory-list of children employed,
Official overtime list,
Labour log-book,
Inspector's report (with compulsory-publication and
international exchange),
International collection of statistics and information
relating to protective legislation and industrial regulations.
The foregoing survey may be held to contain all that is included under
Labour Protection, actual or proposed. But of the measures included
within these limits not all are as yet in operation; and the actual
conditions are different in the various countries.
With regard to the scope of protection, those measures affecting married
women, home-industrial work, work in trade and carrying industries, are
still specially incomplete.
With regard to the organs of administration of Labour Protection, one
kind, viz. the representative, has at present no existence except in the
many proposals and suggestions made as to them; this however does not
preclude the possibility that in the course of a generation or so a rich
crop of such organs may spring up. It is not improbable that special
representative bodies ("labour-councils")--after the pattern of chambers
of commerce and railway-boards, etc.--and "labour-boards" may develop
and form a complete network over the country. Perhaps the separate
representative and executive organs may be able to amalgamate the
various branches of aids to labour, forming separate sections for
Labour Protection, Labour Insurance, industrial hygiene and statistics,
with equal representation of the administrative, judicial, technical and
statistical elements; and thus the ordinary administration service may
be freed from the burden of the special services which a constructive
social policy demands.
Again, the organisation of protection is not by any means the same
everywhere.
According to the foregoing classification (III. 1), the duties of
carrying out Labour Protection are divided between the ordinary and
extraordinary judicial and administrative authorities. The arrangements,
however, are very different in different countries. Such countries as
have not a complete system of authorised administrative boards and petty
courts of justice, will avail themselves more freely of the special
organs, particularly of the industrial inspectors, than will those
countries with administrative systems like those of Germany and Austria;
in comparing the spheres of operation of inspectors in various
countries, one must not overlook the differences in the action of the
ordinary administrative organs. Moreover, all civilized countries
already possess special organs of protection, and it follows in the
natural course of development of all administrative organisation, that
the special administrative and judicial legislation which is springing
up and increasing should possess special judicial and administrative
courts, so soon as need for such may arise from the necessity for a
wider application of special law in the life of the citizen.
Finally, we must guard against a further misconception. Neither
labour-boards nor labour-chambers must be confounded with those
voluntary representative class organisations, and joint committees in
which both classes meet together for Labour Protection, and for objects
quite outside the sphere of Labour Protection. The labour-boards
indicated would be special organs of a public nature, regulated by the
State; labour-chambers would also be organs recognised and regulated by
the State, working in consultation with the labour-boards, and
exercising control over the labour-boards. The voluntary organs of
association, on the other hand, with their secretaries and joint
committees, are free representative, executive, and arbitrative organs
of both classes. A distinction must be drawn between the public and
voluntary organs. It is of course not impossible in all cases that the
free "labour-chambers," in their ordinary and special meetings might
exercise extraordinary powers, besides acting as regular and general
organs of conciliation and arbitration. The Unions and other trade
organisations of to-day can in their present form hardly be regarded as
the last word in the history of labour organisation.
In the second chapter we had to guard against the error of looking on
Labour Protection merely as factory protection, and protection of women
and juvenile workers; we must with equal insistence draw attention to
the fact that Labour Protection is not confined in its scope to
protection of employment, or in its organisation to the machinery of
industrial inspection. This will be shown in Chapters IV. to VIII.
The foregoing survey of the existing conditions and tendencies of
Labour Protection makes it clear that Labour Protection in scope,
legislative methods, and organisation, is only a means of supplementing
and supporting in a special manner the already long established forms of
State protection of labour (in the widest sense), and the still older
forms of non-governmental Labour Protection (in its widest sense) the
necessity for which arises from the special modern developments of
industry.
Labour Protection equally with compulsory insurance, from which it is
however quite distinct, does not preclude the voluntary efforts which
are made in addition to legal measures, nor the help rendered by
savings-banks, by private liberality and benevolence, by family help,
and by various municipal and state charitable institutions; and it does
not render unnecessary the exercise of the ordinary administration, and
the co-operation of the latter in the work of establishing security of
labour. The general impression derived from a study of this survey will
be confirmed if we further examine into the scope, legislative methods,
and organisation of the separate measures of Labour Protection, in
addition to the classification of industrial wage-labour, as dealt with
by protective legislation, which I attempted in Chapter II., and if we
bear in mind the great differences in the degree of protection extended
to the separate classes of protected workers.
CHAPTER IV.
MAXIMUM WORKING-DAY.
In considering the question of protection of employment, we must first
touch upon the restrictions of employment. These restrictions are
directed to granting short periods of intermission of work, _i.e._ to
the regulation of hours of rest, of holidays, night-rest and meal-times;
also to the regulation of the maximum duration of the daily
working-time, inclusive of intervals of rest, _i.e._ to protection of
hours of labour.
Protection of times of rest, and protection of working-time, are both
based on the same grounds. It is to the interest of the employer to make
uninterrupted use of his business establishment and capital, and
therefore to force the wage-worker to work for as long a time and with
as little intermission as possible. The excessive hours of labour first
became an industrial evil through the increasing use of fixed capital,
especially with the immense growth of machinery; partly this took the
form of all-day and all-night labour, even in cases where this was not
technically necessary, and partly of shortening the holiday rest and
limiting the daily intervals of rest; but more than all it came through
the undue extension of the day's work by the curtailment of leisure
hours. Moral influence and custom no longer sufficed to check the
treatment of the labourer as a mere part of the machinery, or to prevent
the destruction of his family life. A special measure of State
protection for the regulation of hours of labour was therefore
indispensable.
Protection of the hours of labour is enforced indirectly by regulating
the periods of intermission of labour: meal-times, night work, and
holidays. But it may be also completed and enforced directly by fixing
the limits of the maximum legal duration of working-hours within the
astronomical day. This is what we mean by the maximum working-day.
The maximum working-day is computed sometimes directly, sometimes
indirectly. Directly, when the same maximum total number of hours is
fixed for each day (with the exception it may be of Saturday);
indirectly, when the maximum total of working-hours is determined,
_i.e._ when a weekly average working-day is appointed.
The latter regulation is in force in England, where 56½ hours are fixed
for textile factories (less half an hour for cleaning purposes), and
sixty hours (or in some cases fifty-nine hours) for other factories. In
Germany and elsewhere the direct appointment of the maximum working-day
is more usual: except in the _von Berlepsch_ Bill (§ 139_a_, 3) where
provision is made for the indirect regulation of the maximum
working-day, by the following clause: "exceptions to the maximum
working-day for children and young persons may be permitted in spinning
houses and factories in which fires must be kept up without
intermission, or in which for other reasons connected with the nature of
the business day and night work is necessary, and in those factories and
workshops the business of which does not admit of the regular division
of labour into stated periods, or in which, from the nature of the
employment, business is confined to a certain season of the year; but in
such cases the work-time shall not exceed 36 hours in the week for
children, and 60 hours for young persons (in spinning houses 64, in
brick-kilns 69 hours)."
1. _Meaning of maximum working-day in the customary use of the term._
In the existing labour protective legislation, and in the impending
demands for Labour Protection, the maximum working-day is variously
enforced, regulated and applied. In order to arrive at a clear
understanding of the matter it will be necessary to examine the various
meanings attached by common use to the term working-day.
Let us take first the different methods of enforcement.
It is enforced either by contract and custom, or by enactment and
regulation. Hence a distinction must be drawn between the maximum
working-day of contract and the legal (regulated) working-day.
Now-a-days when we speak of the maximum working-day we practically have
in mind the legal working-day. But it must not be forgotten that the
maximum duration of labour has long been regulated by custom and
contract in whole branches of industry, and that the maximum working-day
of contract has paved the way for the progressive shortening of the
legal maximum working-day.
Even the party who are now demanding a general eight hours maximum
working-day desire to preserve the right of a still further shortening
of hours by contract, generally, or with regard to certain specified
branches of industry; the Auer Motion (§ 106) runs thus: "The
possibility of fixing a still shorter labour-day shall be left to the
voluntary agreement of the contracting parties."
Certainly no objection can be raised to making provision for the
maintenance of freedom of contract with regard to shortening the
duration of daily labour. The right to demand such freedom in
contracting, is, in my opinion, incontrovertible.
Next we come to the various modes of regulating the maximum working-day.
It may either be fixed uniformly for all nations as the regular
working-day for all protected labour, or it may be specially regulated
for each industry in which wage-labour is protected; or else a regular
maximum working-day may be appointed for general application, with
special arrangements for certain industries or kinds of occupation. This
would give us either a regular national working-day, or a system of
special maximum working-days, or a regular general working-day with
exceptions for special working days.
The system of special working-days has long since come into operation,
although to a more or less limited degree, by the action of custom and
contract. The penultimate paragraph of § 120 of the _von Berlepsch_
Bill, admits the same system--of course only for hygienic purposes--in
the following provision: "The duration of daily work permissible, and
the intervals to be granted, shall be prescribed by order of the
Bundesrath (Federal Council) in those industries in which the health of
the worker would be endangered by a prolonged working-day."
The mixed system would no doubt still obtain even were the regular
working-day more generally applied, since there will always be certain
industries in which a specially short working-day will be necessary (in
smelting houses and the like).
The labour parties of the present day demand the regular legal
working-day together with the working-day of voluntary contract.
By maximum working-day we must, as a rule, understand the national and
international, uniform, legal, maximum working-day.
Thirdly, we come to the various aspects which the maximum working-day
assumes according to whether it is given a general or only a limited
sphere of application. In considering its application we have to decide
whether or not its protection shall be extended to all branches and all
kinds of business, and degrees of danger in protected industry, and
further, whether, however widely extended, it shall apply within each
industrial division so protected to the whole body of labourers, or only
to the women and juvenile workers.
The maximum working-day is thus the "general working-day" when applied
to all industries without exception. When this is not the case, it is
the restricted working-day, which may also be called the factory
maximum working-day, as it really obtains only in factory and
quasi-factory labour. The term factory working-day is further limited in
its application in cases where its protection extends, not to all the
labourers in the factory, but to the women and juvenile workers only, or
to only one of these classes. Hence a distinction must be drawn between
the factory working-day for women and children, and the maximum factory
working-day extended also to men. We shall therefore not be wrong in
speaking of this as the working-day of women and juvenile workers, nor
shall we be putting any force on the customary usage, if by factory
working-day we understand the working day prescribed to all labourers in
a factory.
We shall find a further limitation of the meaning in considering the aim
of the protection afforded, for in certain cases the maximum
working-day, even when extended to all labourers employed in a factory,
is restricted to such occupations in the factory as are dangerous to
health. In such cases, it might be designated perhaps the hygienic
working-day.
The maximum working-day, in the sense of the furthest reaching and
therefore most hotly contested demands for regulation of time, means the
uniform maximum working-day, fixed by legislation nationally, or even
internationally, and not the maximum working-day of factory labour
merely, or of female and child-labour in factories, nor the hygienic
working day. This working-day is authoritatively fixed--provisionally at
10 hours, then at 9 hours, and finally at 8 hours--as the daily maximum
duration of working-time, in the Auer Motion (§ 106 and 106_a_, cf. §
130). Section 106 (paragraphs 1 to 3) runs thus: "In all business
enterprises which come within this Act (Imperial Industrial Code), the
working-time of all wage-labourers above the age of 16 years shall be
fixed at 10 hours at the most on working-days, at 8 hours at the most on
Saturday, and on the eve of great festivals, exclusive of intervals of
rest. From January 1st, 1894, the highest permissible limit of working
time shall be fixed at 9 hours daily, and from January 1st, 1898, at 8
hours daily." According to the same section, the 8 hours day shall be at
once enforced for labourers underground, and the time of going in to
work and coming out from work shall be included in the working-day.
"Daily work shall begin in summer not earlier than 6 o'clock, in winter
not earlier than 7 o'clock, and at the latest shall end at 7 o'clock in
the evening."
We have still two important points to consider before we arrive at the
exact meaning of the general maximum working-day. The first point
touches the difference between those employments in which severe and
continuous labour for the whole working-time is required, and those in
which a greater or less proportion of the time is spent by the workman
in waiting for the moment to come when his intervention is required. The
second point touches the inclusion or non-inclusion, in the working day,
of other outside occupation, of home-work, or of non-industrial work of
any kind, besides work undertaken in some one particular industrial
establishment. With regard to the first point, the question may fairly
be raised whether in industries in which a large proportion of time is
spent in waiting unoccupied, the maximum working-day is to be fixed as
low as in those industries in which the work proceeds without
intermission. And it is a question of material importance in the
practical application of the maximum working day whether or not work at
home, or in another business, or in sales-rooms, or employment in
non-industrial occupations, should or should not be allowed in the
normal working-day.
The labour-protective legislation hitherto in force has been able to
disregard both these points, for with the exception of the English Shop
Regulations Act (1886) it hardly affected other occupations than those
in which work is carried on without intermission. But there are points
that cannot be neglected when the question arises of a general maximum
working-day for all industrial labour, or all industrial wage-service
alike--as in the Labour agitation now rife in the country.
The Auer Motion, for instance, ought to have dealt with both these
questions in a definite manner; but it did not do this. With regard to
those occupations in which a large proportion of the time is spent in
merely waiting, _e.g._ in small shops, public-houses, and in carrying
industries, there is no proposal to fix a special maximum working-day,
except perhaps in the English Shop Regulations Act (12 instead of 10
hours for young persons). With regard to outside work, the Auer Motion
does not determine what may be strictly included within the eight hours
day. The question is this: is the maximum working-day to be imposed on
the employer alone, to prevent him from exacting more than eight or ten
hours work, or on the employed also, to prevent him from carrying on any
outside work, even if it is his own wish to work longer; the more we cut
down the general working-day, the more important it will become to have
a limit of time which will affect not only the employer but also the
employed, as otherwise the latter might, by his outside work, be only
intensifying the evils of competition for his fellow-workers. The Auer
Motion (§ 106) only demands the eight hours day for separate business
enterprises; therefore, according to the strict wording, there is
nothing to hinder the workman from working unrestrainedly beyond the
eight hours in a second business enterprise of the same kind, or in any
industry of another kind, in which he is skilled, or in non-industrial
labour, and thus being able to compete with other workmen. Does this
agree in principle with the maximum working-day of Social Democracy? Is
this an oversight, or a practically very important "departure from
principle"? We are not in a position to fully clear up or further
elucidate these two points. For the present we may assume that the
action of the Labour parties was well calculated in both these respects,
viz. in neglecting to draw a distinction between continuous and
intermittent labour, and in excluding outside labour from the operation
of the eight hours working-day.
Lastly, in accurately defining the meaning of the term we must not
overlook the fact that neither in respect to aim nor to operation the
maximum working-day is confined to the question of mere Labour
Protection. It has no exclusively protective significance.
It is true that the hygienic factory day, the factory day for women and
juvenile workers, and the factory day for men, are wholly or mainly
maximum working-days appointed for purposes of State protection, but the
maximum working-day may also serve to other ends apart from or in
addition to this. In the general eight hours day, for instance, the
economic aspect is of equal importance with the protective aspect of the
question. Under the socialistic system of national industry, where there
would no longer be any question of protection in service-relations, the
maximum working-day, together with the possibly more important minimum
working-day, directed against the idle, would serve to other important
ends; it would, for instance, give more leisure for the so-called
general mental cultivation of the people and would prevent new
inequalities.
We will consider in the first place the purely protective aspect of the
maximum working-day of the present, then the mixed protective and
economic aspect of the general maximum working-day.
2. _The maximum working-days of protective legislation: the hygienic
working-day, the working-day of women and children, the extended factory
working-day._
And first the _hygienic working-day_.
This is imposed on certain occupations and businesses on account of the
dangers to health arising out of the work, and on account of the
strength required in the work.
It is no longer opposed by any party. It is fully dealt with in the _von
Berlepsch_ Bill in the above-mentioned provision of the penultimate
paragraph of § 120_a_.
By the insertion of this provision in Section I. of Chapter VII. of the
Imperial Industrial Code, the hygienic maximum working-day may be
extended by order of the Bundesrath (Federal Council) over the whole
sphere of industrial labour, not merely of factory and quasi-factory
labour. The Berlin Conference (resolutions 1, 2) demands the hygienic
maximum working-day for mining industries.
It is hardly necessary to prove that the hygienic maximum working-day
cannot be obtained merely by the efforts of the workers in
self-protection or by the general good-will of the united employers,
without general enforcement by enactment or regulation. Some employers
are unwilling even to maintain the shortening of the normal working-day
necessary to health, others who would be willing are prevented by
competition so long as the hygienic working-day is not enforced
generally and uniformly by enactment or regulation throughout that
particular branch of industry. The extension of the hygienic maximum
working-day to all occupations dangerous to health throughout the whole
sphere of industrial labour, is justified as a necessary measure of
Labour Protection.
No nation will suffer in the long run from the full extension of the
hygienic working-day. It is probable that the governments will advance
side by side in this direction.
_The factory working-day for women and juvenile workers._
This has long been enforced. The distress which brought it under the
notice of the English legislature has justified it for all time. It is
now scarcely contested.
Without special intervention of the State, the considerate employer is
not able to grant the ten hours limit, even to women and juvenile
workers, on account of his unscrupulous competitors.
Its enforcement with the help of a factory list offers no difficulties.
The grounds for demanding a maximum working-day for juvenile workers are
so evident that they need not here be indicated. We may, however, remark
in passing that this working-day is economically of no great importance
in view of the small number of juvenile workers. In the year 1888,
Germany employed in factory and quasi-factory labour 22,913 children
(14,730 boys, 8,175 girls) 169,252 young persons (109,788 males, 59,464
females); children and young persons together making a total of 192,165
(124,526 males, 67,639 females). The textile industries alone engaged
17.8 per cent. of the male, and 47 per cent. of the female child-labour,
that being the industry which also employs the largest number of female
workers.
The maximum working-day for female labour is necessary for all women
workers and not merely for married women, and in England it has long
been enforced. In the case of girls, work for eleven or twelve hours is
highly undesirable from the point of view of family life. "Experience
proves," says a Prussian inspector, "that girls so employed never become
good housewives, and that women so employed can never fulfil their
maternal duties, and on this account many well-meaning employers will
not employ married women after the birth of the first child. The evil
result of this appears more plainly the greater the number of women
workers; and its bad influence on married life and on the education of
children in workmen's families is very evident and makes itself felt in
other spheres of life. Isolated schools of housewifery and
working-women's homes are insufficient to meet the evil, especially as
the extension of textile industries and therewith the increase in the
number of women employed has by no means reached its highest point." The
more impossible it is to dispense entirely with female labour, the more
imperative does it appear to secure to all women workers, at least, the
maximum working-day, at best the 10 hours working-day (with 6 hours on
Saturday) long enforced in England.
The factory day of 6 hours for children and 10 hours for young persons
has already been enforced by the Industrial Regulations in Germany. Its
extension to all female workers is one of the most important steps
proposed by the _von Berlepsch_ Bill. At present the proposal is for an
11 hours day, but the Reichstag Commission ought to succeed in placing
the limit at 10 hours.[8]
The Resolutions of the Berlin Conference fix the time at 6 to 10 hours
for juvenile workers, and 11 hours for all female workers (III. 6, IV.
2, and V. 2). They further demand that the "protection of a maximum
working-day shall be granted to all young men between the ages of 16 and
18."
The working-day for women and juvenile workers has hitherto been
essentially a factory and quasi-factory maximum working day (cf. Bill, §
154). England has, however, in the Shop Hours Regulation Act of June 25,
1886, extended protection to sale-rooms, of course only in favour of
juvenile workers, but with strict directions as to outside work. This
working-day in commercial business, amounts on an average to 12 hours in
the day (74 in the week, inclusive of meal-times). If the protected
person has already in the same day performed 10 hours of factory or
workshop labour, only 12 hours less 10 of shopwork are permitted; when
the time occupied in outside work amounts to the full workshop and
factory maximum working-day, additional occupation in the shop is
prohibited. The Act does not apply to those shops in which the only
persons employed are members of the family dwelling in the house or are
family connexions of the employer. Such intervention in respect of
household industry has already been begun but has not yet gone very far.
The general extension of the maximum working-day for women and juvenile
workers to all industries, including family industries, has been
demanded,[9] but is as yet nowhere enforced.
The specially short working-day for children necessitates alternating
shifts, as child labour, as a rule, is inseparably connected with other
work. English protective legislation directs in this case that children
(from 10 to 14 years) may be employed in one and the same place only for
half a day, either for the morning or the afternoon, or else on every
alternate day, for the full day; and the order of working-days must be
changed every week; in daily (half-day) employment, the actual working
time (without intervals of rest) amounts to 6 hours daily, and 30 to 36
hours weekly, in other cases 10 hours daily and 30 hours weekly.
_The factory working-day (in the strict sense): factory working-day for
adult males._
The extension of protection of hours of labour to adults in factory and
quasi-factory labour, by the so-called factory working-day (in the
strict sense) has already begun to make way in some countries.
In France it was enforced as long ago as by the Act of Sept. 9, 1848
(Art. I.), in which the limit was still fixed at 12 hours; in
Switzerland the limit was fixed at 11 hours by Art. II. of the
Confederate Factory Act of 1877; and in Austria by the Act of Mar. 8,
1885. Other countries have not hitherto adopted it. Great Britain and
other countries still hesitate to interfere in this way with the freedom
of contract for adults. Switzerland, on the other hand, is ready to
reduce the hours from 11 to 10, but whether Austria is prepared to do so
much is doubtful.
Germany also in the _von Berlepsch_ Bill has entered a protest against
the extreme length of the factory working-day. Here the course has been
strongly urged, sometimes of adopting an 11 hours, sometimes a 10 hours
day, meaning always the time of actual work, without reckoning intervals
of rest. In the discussion on the Imperial Industrial Regulations of
1869, Brauchitsch demanded a 12 hours factory day from the Conservative
benches, and Schweitzer for all large industries a 10 hours day (_i.e._
a 12 hours day, with intervals of rest amounting to not less than 2
hours).
The necessity for the limitation of the working-day of male adult
labourers to 11 or 10 hours, rests partly upon the same grounds as that
of the working-day for women and young persons. Hours of leisure,
besides the hours of night rest, are a necessity for men also, in order
that they may be able to live really human lives. Above all they ought
to be able to devote a few hours every day to their family, to social
intercourse, self-culture, and their duties as citizens. The economic
expediency of the restriction of working hours has been proved by
experience. The amount of work executed in the factories has been in no
way lessened by the adoption of the 10 hours day for women and children,
and moreover in England, wherever the 10 and 11 hours day for men has
been adopted without legal enactment, it has proved to be a beneficial
measure; this has also been the case in the Alsatian cotton
factories.[10] The factory inspectors in Switzerland unanimously report
the favourable effect of the 11 hours day on the amount of work
executed; and the same thing on the whole may be asserted of Austria.
In Switzerland the proposal that permission for overtime work should be
obtainable from the magistrates was several times rejected, "because the
employers soon perceived that the increased production scarcely covered
the increased expense of light and heating, and that the work was
carried on with less energy on the days following overtime work than
when the 11 hours day was adhered to." It is evident that there the 11
hours day is not considered too short. In general the employers in
Switzerland very soon declared themselves satisfied with the 11 hours
day; the workmen consider it a great benefit, and it has not led to the
greater frequenting of public-houses. The adoption of a maximum
working-day in Switzerland has put a stop to the practice on the part of
manufacturers of taking away their competitor's orders and executing
them by means of overtime work, so that amongst industrial managers
also, the tide is beginning to turn against too frequent indulgence in
overtime work.
In Saxony even, an examination into the advantages of the maximum
working-day shows "that the manufacturers themselves" (see General
Report for 1888 of the district inspector at Zwickau), "are opposed to
the long protraction of hours of labour; but every employer hesitates to
be the first to shorten the hours, fearing lest he should find too few
imitators, and be thereby thrown out of competition." The legal factory
working-day removes this fear.
Of course we have no experience to show that the further shortening of
the day to less than 10 hours would allow of the execution of as much or
more work than has hitherto been executed in more than 10 or 11 hours.
There is a limit to the possible increase of efficiency in machines and
in hand-labour, and in the two together. Labour Protection has neither
the intention nor the right to prohibit any labour that is not too long
to be physically and morally permissible.
At present there seems no necessity from the protective point of view
for more than an 11 or 12 hours day as a rule, with special hygienic
working-days of less than 10 hours, together with unrestricted freedom
of contract in regulating the hours of work below this limit.
Above the limit of 10 or 11 hours the lengthening of labour time seems
to diminish rather than to increase its aggregate productivity, and this
explains why the 11 and 10 hours day, without any intervention from the
State, has been so generally and successfully adopted by custom and
contract. It is the general experience, as the Düsseldorf inspector
notes in his report, that "those works in which the smallest amount of
labour is performed, have as a rule the longest hours of labour; all
attempts to increase the amount of labour at favourable periods of the
market, by offering higher wages, whilst at the same time maintaining
the long hours, have only attained a short-lived success, or have
altogether failed; the same result is produced when in certain
occupations the usually short hours of labour are prolonged in order to
profit by the opportunity of a good market; it is only for the first few
days that the increase in the amount of work executed corresponds to the
increase in the hours of work, and the old level is quickly resumed; on
the other hand, it is frequently affirmed by the managers that the
capacity for work of our labourers is in no wise inferior to that of the
English."[11]
The legal 11 or 10 hours day would not be justified if custom and
freedom of contract were sufficient to adjust the true proportions of
working time. This however is not the case, and the legal working-day is
therefore necessary in order to supplement the work of free
self-protection.
With regard to the voluntary adjustment of the duration of the
working-day, we find that the 10 and 11 hours day already prevails in a
large proportion of the German industries: as in Bremen, whence
according to the factory report, only 33.8 per cent. of the adult
labourers work beyond 10 hours, and only 3.8 per cent. beyond 11 hours,
and in Berlin, where in 3,070 firms, 71,465 male labourers work for 10
hours and less; and the same is reported by other district inspectors.
But side by side with this we find a longer and frequently a decidedly
too long working-day, and nowhere does every firm adhere to the 10 or 11
hours day. Even in the Lower Rhine Provinces the 12 hours working-day is
in force in the smelting houses (Hitze). In Saxony the same number of
hours obtains, as a rule, in textile industries, although many
manufacturers would prefer the 10 hours day, if all competitors would
adopt it. In Bavaria and Baden the 11 to 12 hours working-day prevails
widely. In certain separate kinds of work, as in mills and brick kilns,
the working hours are even longer.
The advisability of fixing the legal factory day at 10 or 11 hours is
not to be disputed. It is just where the 10 or 11 hours day has not been
secured by custom that, as a rule, the workmen and such managers as are
willing are least in a position to extort it by way of self-help from
other competing employers. And where custom has already led to the
general adoption of the 10 to 11 hours working-day, it seems quite
permissible to enforce it on such firms as have not adopted it.
It is no sufficient argument against the introduction of the extended
compulsory factory working-day, to say that the adoption of the
working-day for women and young persons would necessarily entail the
adoption of the working-day for men without recourse to legal
enforcement, since men could not be employed beyond the specified number
of hours, while this was forbidden in the case of women and young
persons employed in the same business. As a matter of fact, the larger
proportion of trades are carried on entirely, or mainly, by male
workers, though there may be a certain amount of purely accessory work
performed by women and young persons. Hence the adoption of the limited
factory working-day (_i.e._ for women and children) by no means
necessarily or uniformly entails its general adoption. Even in England
this has not been the case generally, and although we find that the
maximum working-day for men very largely obtains without legal
enactment, this has not been the result of the adoption of the legal
working-day for women and juvenile workers, but has been won by the
healthy struggle of the trades' unions for the maximum working-day fixed
by contract.
Now the question arises whether the 11 or the 12 hours day is to be
chosen, and whether the adoption of the factory working-day should be
proceeded with in Germany without its being adopted at the same time by
England and Belgium.
Several of the German States have recently introduced the 10 hours
working-day in their government works. This would point to a preference
for the 10 hours day. The proposal made by Switzerland at the Conference
for the adoption of this lower limit rests partly on the ground of its
agreement with the duration of the 10 hours day for women and juvenile
workers.
But here some caution is necessary. Private enterprise is not so free
from the dangers of competition as government enterprise; whilst Germany
might very well do with the 11 hours day since Switzerland and Austria
have been able to introduce it without harmful results.
The adoption of the compulsory 10 hours day might be ventured on without
hesitation, if once we had accurate international statistics as to
whether the different countries have already adopted the 10 hours day;
and, if so, for which branches of industry. We should then be able to
see the extent of the risk as a whole and in detail. Was not this very
matter, the ascertainment of the customary maximum duration of working
hours in separate branches of industry, pointed to as of immediate
importance in the resolutions agreed to at the Berlin Conference on the
drawing up of international statistics on Labour Protection? The general
adoption of the 10 hours day would certainly be hastened by these means.
Each country would then be sure of its ground in taking separate
proceedings.
German labour protective policy cannot be reproached with want of
caution, seeing that it has made no demand in the _von Berlepsch_ Bill
for the extended factory day, but only for an 11 hours working-day for
women.
Lastly, the question arises whether the maximum working-day under
consideration can, or shall, be extended beyond factory and
quasi-factory labour. Such extension has not as yet taken place.
Should such extension ensue, the limits of duration could hardly be
fixed so low for intermittent work, and for less laborious work (both
are found in trading industry and in traffic and transport business), as
for factory labour and the business of workshops where power machinery
is used. England, which is apparently the only country which regulates
the hours of young persons even in trade, has adopted for them a 12
hours working-day.
Further examination plainly shows that a simple uniform regulation would
be impossible in view of the extraordinary variety of non-continuous and
non-industrial occupations and handicrafts.
But in general it cannot be disputed that the need for regulation may
also exist in trading and in handicrafts, _e.g._ in bakeries (not
machine-worked) no less than in household industry. Here we often find
that the working hours are of longer duration than in factories and
workshops. In Berlin, figures have been obtained showing the percentage
of firms in which the working-day is more than 11 hours; and the
percentage of female and of male workers employed for more than 11
hours.
Number of Of Male Of Female
Firms. Workers. Workers.
In wholesale business 4.31 3.51 4.46
In handicraft 18.85 15.52 6.09
In trade 64.77 54.94 --
The necessity for extending protection beyond the factories cannot be
lightly set aside; in trade, excessive hours of labour are exacted from
workers not belonging to the family, and in continuous and intermittent
employments, and in household industry they are probably exacted from
the relatives. The same thing occurs in handicrafts. It is not
impossible for the matter to be taken in hand; but at present it meets
with many difficulties and much opposition. Only the factory and
quasi-factory maximum working-day for adults belong to the immediate
present.
3. _The maximum working-day of protective policy and of wage policy;
general maximum working-day; eight hours movement._
The general maximum working-day of 8 hours, as demanded since May 1st,
1890, rests admittedly on grounds, not merely of protective policy, but
also of wage-policy.
In so far as it is demanded on grounds of protective policy, it would
call for little remark. The only question would be, whether on grounds
of protective policy the maximum working-day is an equal necessity for
all industrial work, and whether this necessity must really be met by
fixing 8 hours, and not 11 or 10 hours, as the limits of daily work, a
question which, in my opinion, can only be answered in the negative.
The new and special feature which comes to the fore in the demand for
the general eight hours day, is the impress which (its advocates claim)
will be made by it on the wages question, and this in the interests of
the wage-labourer. The universality and the shortness of the maximum
working-day would lead, they say, to an artificial diminution of the
product of labour.
This second side of the question of the eight hours day, which touches
on wages, does not properly speaking come within the scope of a treatise
on the Theory and Policy of Labour Protection. We must not, however,
omit it here, for the demand for such a working-day is very seriously
confused in the public mind with the purely protective maximum
working-day, whereas the two must be clearly distinguished from each
other. By discussing and examining the general eight hours day, it must
be shown how important an advance it is upon the factory 10 hours day;
and it must be shown that the favour with which the factory 10 hours day
is to be regarded on grounds of protective policy, need not extend
necessarily to the general eight hours day; the one may be supported,
the other rejected; protective policy is pledged to the one, but not to
the other. From this standpoint we enter upon a consideration of the
eight hours day.
The demand is formulated in the most comprehensive manner in the Auer
Motion. What is it, according to this demand, that strictly speaking
constitutes the general eight hours day, implying two other "eights,"
eight hours sleep and eight hours recreation? If we are not mistaken in
the interpretation of the wording of the demand already given, the
"general working-day" means eight hours work for the whole body of
industrial wage-labour, admitting of specially regulated extension to
agricultural industry and forestry.
The Motion demands the eight hours time uniformly for all civilised
nations; without regard to the degrees of severity of different
occupations, and the degrees of working energy shown by different
nationalities; and without permission of overtime in the case of
extraordinary--either regular (seasonal) or irregular--pressure of work.
The Motion demands the eight hours maximum duration without regard to
the question whether the performance of labour is continuous or not,
hence without exclusion of the intermittent employments which are
specially difficult of control.
Moreover, in all probability, the mere preparatory work, which plays so
important a part in industrial service, in trade, and in the business of
traffic and transport, will be dealt with in the same manner as
continuous effective labour. At least we find no indication of the
manner in which preparatory work is to be dealt with as distinguished
from effective labour.
It does not appear in the text, but it is probably the intention of the
Auer Motion to apply the limitation of eight hours not only to work in
the same business, but to industrial work in different coordinated
businesses, to the principal industry and to the subsidiary industries.
Yet, as we have already noticed, we find no definite information on this
point, nor on the manner of enforcing the eight hours day; nor as to
whether it is to be an international measure enforced by international
enactment; nor yet as to whether it is to be adopted only by the
countries of old civilization, or also by the young nations of the new
world, and the countries of cheap labour in the South, and in Eastern
Asia.
On the other hand, the _object_ of the general working-day is fully and
clearly explained. It aims not only at fixing the time of rest for at
least eight hours daily, nor merely fixing the time of recreation
(pleasure, social intercourse, instruction, culture) for other eight
hours; but it also aims at an increase of wage per hour, or at any rate
at providing a larger number of workmen with full daily work by
diminishing the product of labour.
In judging of the merits of the eight hours day, one must lay aside all
prejudices and misconceptions. Hence we repeat that the hygienic
working-day may be admissible, even though fixed below eight hours. We
repeat, moreover, that the maximum working-day fixed by contract is not
to be opposed, even though it fall to eight hours, or below eight hours,
at first in isolated cases, but by degrees generally. We also say that
it is not impossible that certain nationalities, or all nationalities,
should some day attain to such a degree of energy and zeal for work, as
would justify the eight hours limit almost universally, and render it
economically admissible, as is already the case in certain kinds of
work. We are only concerned here with the general legal eight hours day
(not with the merely hygienic working-day of eight hours) to be legally
enforced on January 1st, 1898, or within some reasonable limit of time.
A few objections are advanced against the eight hours day, the
importance of which cannot be overlooked.
The maximum working-day applied only to industrial labour lacks
completeness, it is said; all work, even in agriculture and in public
business, should be limited to eight hours, if the general maximum
working-day is to become a reality. The Social Democrats would, perhaps,
meet this objection by further motions.
The general eight hours day is not quashed by the assertion that the
united nationalities, or the bodies of labourers of different
nationalities would never agree upon the matter. This is, indeed,
possible, even very probable; but it remains to be proved what may be
effected by international labour-agitation in an age of universal
suffrages and of world congresses, and especially in England, which has
already become so really democratic; an advance made by this country
towards a reasonable experiment would be decisive. The possibility of
attaining a sufficiently uniform, shortened, international working-day
will always be conceivable. Moreover, the imposition of protective
duties on the nations that hold back is held in reserve as a means
towards the equalisation of social policy.
More important are those objections which are raised on grounds of
protective policy against the eight hours day, not on account of its
shortness, but of its universality. It is affirmed that it is
unnecessary and could not be carried out without intolerable chicanery.
I am also inclined to think that the necessity for a maximum
working-day, on grounds of protective policy, does not extend much
beyond factory and quasi-factory labour (cf. Chaps. V. to VIII.), many
wage-workers finding sufficient protection in the force of public
opinion, in moral influence and custom.
The universalisation of the measure, it must be admitted, greatly
increases the difficulties of carrying it out successfully, especially
in non-continuous employments, in subsidiary and combined industries. It
would be difficult to carry it out without an amount of espionage and
control, intolerable, perhaps, to the sense of individual liberty in the
most diligent workers. The supporters of the eight hours day cannot meet
this objection by replying that under a real "government by the people,"
the whole measure would be practicable, and the demand for it
intelligible; for this is an attempt to thrust forward a proof having no
application to the policy of the present, which has to deal with
existing conditions of society; and it unwarrantably assumes that the
practicability of a "government by the people" has already been proved.
The supporter of the general legal eight hours day will be more
successful in meeting the above objection if he maintains that the
importance of so complete a universalization and so great a shortening
of the maximum working-day, from the point of view of the wages
question, more than outweighs any doubt as to the necessity of the
measure on grounds of protective policy, or as to the practicability of
carrying it out.
The decision for or against the general legal eight hours day lies
therefore in the answer to these two questions: whether the cherished
hope as to its effect on wages rests on a sure foundation, and whether
the State is justified in so wide an exercise of power in the interests
of one class in the present generation.
With regard to the first question, no very strong probability of success
has been shown, to say nothing of certainty.
We need only look at the practical aspect of the matter. By the legal
enforcement of a sudden and general shortening of the industrial
national working-time, by 20 to 30 per cent. of the working-time of
hitherto, higher wages are to be obtained for less work, or at least
room is to be given for the actual employment of the whole working force
at the present rate of wage!
How would an increase of wage, or even the maintenance (and that a
continuous one) of the present rate be conceivable in view of a sudden
general reduction of working-time by 20 to 30 per cent.? Only, indeed,
either by reduction of profits and interest on the part of the
capitalists, corresponding to the increase of wage, or by an increase in
the productivity of national industry, resulting from an improvement in
technique, and progress in skill and assiduity, or from both together.
Now no one can say exactly what proportion the profits and interest of
industrial capitalists bear to the wages of the workmen; if one were to
deduct what the mass of small and middle-class employers derive from the
work of their assistants (as distinct from what they draw from their
capital) the industrial rent--in spite of numbers of enormous
incomes--would probably not represent the large sum it is supposed to
be. Hence it is very doubtful whether it would be possible to obtain the
necessary sum out of profits.
Even if this were possible, it is by no means certain that the wage war
between Labour and Capital would succeed in obtaining so great a
reduction of industrial profits and interest, still less within any
short or even definitely calculated limit of time. Some amount of
capital might lie idle, or might pass out of Europe; or again, Capital
might conquer to a great extent by means of combination; or it might
turn away from its breast the pistol of the maximum working-day by
limiting production, _i.e._ by employing fewer labourers than before. It
might induce a rise in the price of commodities, which would diminish
"real" wages instead of raising them or of leaving them undiminished.
But even if Capital found it necessary in consequence of the legal
enforcement of the eight hours day to employ a larger number of workers,
it might draw supplies to meet this expense partly out of the countries
which had not adopted the eight hours day, partly out of agricultural
industry and forestry, and after half a generation, out of the increase
in the working population. Capital would also make every effort to
accomplish in a shorter time more than hitherto by exacting closer work
and stricter control, and by introducing more and more perfect
machinery.
With all these possibilities the eight hours day will not necessarily,
suddenly, and in the long run, increase the demand for labour to such a
degree that the employer will need to draw upon his interest, profits,
and ground rents for a large and general rise of wages, or for the
maintenance of the former rate of wage. At least, the contrary is
equally possible, and perhaps even highly probable.
Such an increased demand for labour would indeed ensue if the growth of
population were to be permanently retarded. But that it should be so
retarded is the very last thing to be expected under the conditions
supposed, viz. a general increase of "real" wages, which would obviously
render it more easy to bring up a family.
Hence the assumption that the eight hours day would lead to an increase
of wage, or the maintenance of the present rate of wage at the cost of
profits and interest, is not proven; so far from being certain, it is
not even probable. Therefore, it cannot serve to justify so violent an
interference on the part of the State, as the enforcement of the general
legal eight hours' day on January 1st, 1898. Such an interference would
be calculated to bring a terrible disappointment of hopes to the very
labourers whom it is intended to benefit.
Just as little can it be justified by the assumption that as much would
be produced (hence as high a wage be given) in a shorter working-day,
through the improvement of technique, and increased energy in work, as
in a working-day of 10 or 12 hours.
The increase in productivity could not be expected with any certainty to
be general, uniform, and sudden. The success of the experiment which has
been made with the 11 hours day, which prevents such excessive work as
is not really productive, cannot be advanced to justify the further
assumption that the productivity of labour increases in inverse ratio to
the duration of time. The increase of productivity through limiting the
duration of work does justify the 10 or 11 hours day of protective
policy precisely because the latter evidently stops short at that point
beyond which labour begins to be less efficient; we have no grounds for
assuming that the same justification exists for the eight hours day
demanded in the supposed interests of a wage policy. The increase of
productivity through the operation of the eight hours day would be more
than ever unlikely if the abolition of "efficiency" wage in favour of
exclusive time wage, which is one measure proposed, were to destroy the
inducement to compensate for loss of time by more assiduous work, and if
a fall in the profits were to curtail industrial activity.
But even supposing it certain, which it clearly is not, that an increase
of productivity would take place sufficient to compensate for the
shortening of time, it would still be doubtful whether the effect would
be felt in a rise or maintenance of the rate of wage, and not rather in
a rise in profit and interest. For the steadily increasing use of
machinery, which is assigned as one of the reasons why productivity
would remain unimpaired in spite of the shortening of hours, and more
especially if this should coincide with a rapid increase of population,
would actually lessen the demand for labour, and thus would improve the
position of Capital in the Labour market. On this second ground also, we
are precluded from supposing that the eight hours day would result in an
increase of wages.
But if it be granted that the balance would not be restored, either by
pressure upon profits and interest or by increased productivity, it then
follows that the wages of labour must necessarily _fall_ 20 to 30 per
cent. through such a shortening of the working-day. And this, as we have
seen, is not at all an unlikely issue.
The absorption of all the unemployed labour force, the industrial
"reserve army," in consequence of the adoption of the eight hours day,
is an assumption quite as unproven as the one with which we have been
dealing.
This result would not necessarily ensue even in the first generation,
since production might be limited, and even if the hopes of increased
productivity are not quite vain, it is quite possible that more
machinery might be employed without necessarily increasing the number of
workmen.
It is still more difficult to determine what in all these respects will
be the ultimate effect of the eight hours day. The further increase of
the working population--and, _ceteris paribus_, this would be the most
probable result of the expected increase in the rate of wage per
hour--may produce fresh supplies of superfluous labour; but the
eventual fall of wages consequent on a decrease in the productivity of
national work would necessarily increase the industrial "reserve army,"
through the diminished consumption and the consequent restriction of
production to more or less necessary commodities.
If a diminution of national production were really to result from the
adoption of the eight hours day, it would affect precisely the least
capable bodies of workers, and those engaged in furnishing luxuries, for
the demand for luxuries is the first to fall off; and the less capable
workers finally become the worst paid because they are able to
accomplish less in eight hours. Hence it follows that the uniform,
universal, and national eight hours day would have very different
results on the labouring bodies of each nation, and on the competing
bodies of labourers in separate industrial districts in the same nation.
Hence the very uniformity of the national and international maximum
working-day of wage policy is a matter which calls up very grave
considerations, which, however, we are not in a position to pursue any
further in this book.
Even the complete prohibition of overtime work for the sake of meeting
the accumulation of business, neither ensures a higher rate of wage per
hour, nor a lasting removal and reduction of the superfluous supplies of
labour. The very opposite result may ensue, at least, in all such
branches of industry as undergo periodical oscillations of activity and
depression, through the fluctuation of the particular demand on which
they depend. If the effect on wages of the legal eight hours day is
extremely doubtful, and the advisability of the measure more than
questionable, we come in conclusion to ask very seriously whether the
State is justified in enforcing more than the mere working-day of
protective policy.
Without doubt the State ought to direct its social policy towards
securing at least a minimum rate of wage compatible with a really human
existence, as it does by Labour Insurance, for instance. It is a
possible, though an extremely unlikely, case to suppose that it might
take practical steps to realize the "proportional" or "fair" wage of
_Rodbertus_ (although since the writings of _von Thünen_, theorists have
sought in vain a method of determining this ideal measure), but even so,
the practicability of such a course would have first to be demonstrated,
and in my opinion this would probably be found to be not demonstrable.
But surely it has now been fully shown that it ought not to permit the
sudden and general shortening of the working day by 20 to 30 per cent.,
an experiment the effects of which cannot be foreseen.
The State does not possess this right, either over property or labour.
It might affect injuriously the rate of wages of the whole labouring
class, or, at least, of such bodies of wage labourers as are employed in
the production of such articles as are not actual necessaries of life.
The labourer might even have to bear the whole burden, since the rate of
wages would suffer by this measure if a fall in national production were
brought about without being counterbalanced by a lowering of the rate of
profit and interest. The State has to take into consideration those
considerable bodies of wage-labourers who (while keeping within the
limits of the maximum working-day of protective policy) would rather
work longer than earn less, and it will find it hard to justify to them
the experiment of the eight hours day of a wage policy; for this would
constitute a very serious restriction of individual liberty for many
workers, and those not by any means the least industrious or skilful.
Still we need not undertake here to work out the matter decisively from
this point of view.
Will, however, the experiment be forced upon us? Who can deny this
positively, in face of the irresistibly advancing democratic tendencies
of constitutional right in all countries? If it be forced upon us, it
may, and most probably will, end in a great disappointment of the hopes
of the Labour world.
It is perfectly clear that the decision of the matter rests with
England. If this country does not lead the way, if she hesitates to
enforce it in the face of the competition of American, Asiatic, and
soon, perhaps, of African labour, the experiment of a general eight
hours day for the rest of Western Europe is not to be thought of. But in
England it is precisely the aristocratic portion of the labouring
classes--the "old trades' unionists," the skilled labour--that has not
not yet been won over to the side of the legal eight hours day, and it
is doubtful whether it will yield to the leaders of unskilled labour:
Burns, Tillett, and the rest. At the September Congress at Liverpool, in
1890, the Trade Unionist party brought forward in opposition to the
general legal eight hours day, the eight hours optional day fixed by
contract, in the motion of Patterson, if I have rightly understood the
proposal. The motion was defeated by a majority of only eight (181 to
173).[12] If the legal eight hours day is rejected, does that preclude
for all time the possibility of shortening the time of labour to less
than the 10 or 11 hours factory day at present in force? By no means.
The fundamental error in the general legal working-day as it now stands,
lies not in the assumption that it will gradually lead to a further
shortening of the working-day, but in the assumption that the legal
maximum working-day will bring about suddenly, generally, and uniformly
results which in the natural course of economic and social development
only the maximum working-day of free contract is calculated to bring
about, and this gradually, step by step, tentatively, and by irregular
stages; that is to say, that so material a shortening of the maximum
working-day cannot possibly be attained to generally by any other means
than by the shortening by free contract, here a little and there a
little, of the maximum working-day within each industry and each
country, and this equally outside as well as within the limits of
factory and quasi-factory business. We may at all events be assured that
the substitution of the legal eight hours day for the factory
working-day of 10 or 11 hours is _not the next step to be taken_, but
rather the further development of the maximum working-day of free
contract by means of the continuous wage struggle between the organised
forces of Capital and Labour to suit the unequal and varying conditions
of place, time, and employment, in the various classes of industry.
There is no objection to be offered to this manner of bringing about the
shortening of the working-day. No one has any right or even any fair
pretext for opposing it. No one need fear anything from the results of a
general working-day introduced by this method, even if it should
ultimately develop into the legalised maximum working-day of less than
10 hours.
There is the less reason for fear, as the working classes themselves
have the greatest interest in avoiding any step forward which would
afterwards have to be retraced; the majority will prefer, within the
limits of overwork, additional and more laborious working time with more
wages, to additional recreation time and less wages.
Least of all does _Capital_ need to look forward with jealousy and
suspicion to this visionary eight hours day which may lie in the lap of
the future, but which will have come about, only gradually through a
series of reductions _by contract_ of the working-day, each successive
rise of wage and each successive shortening of the working-day having
been occasioned by a steady improvement in technique, and a healthy
increase of population. The sooner some such movement as this of the
eight hours day, fixed by contract, ultimately perhaps by legislation,
takes a firm hold, the more striking will be the improvement of
technique, the more normal will become the growth of population, and the
more peaceful and law-abiding will be the social life of the immediate
future. Hence, I think we may contemplate the eight hours movement
without agitation, and discuss it impartially, provided of course that
the Labour Democracy is not permitted to tear down all constitutional
limitations upon its sole and undisputed sway.
The most important contribution that this chapter offers to the Theory
and Policy of Labour Protection is then to show that the eight hours day
of wage policy may be rejected, and may still be rejected, even if the
10 hours day, demanded on purely State protective grounds, is adopted.
The foregoing discussion will show conclusively that there is no
question of the State pledging itself to Socialism by the purely
protective regulation of the working-day.
Even from the standpoint of Social Democracy, the eight hours day as now
demanded is not properly speaking a Socialistic demand at all. It may be
that some of the leaders of the movement may seek by its means to weaken
and undermine the capitalist system of production, but the demand does
not in principle deny the right of private property in the means of
production. The general eight hours day is an effort to favourably
affect wages on the basis of the existing capitalist order. Not only the
11 hours or 10 hours day, but even the eight hours day would be no index
of the triumph of Socialism. It may rather be supposed that the leaders
of the movement thrust forward the eight hours day in order to be able
to conceal their hand a little longer in the promised fundamental
alteration of the "system of production." Therefore, we again repeat,
even in face of the proclamation of a general eight hours day made at
the "World's Labour Holiday," of May 1st, 1890, "There is no occasion to
give the alarm!"
4. _The maximum working-day and the "normal working-day."_
What we understand by the maximum working-day--limitation (whether on
grounds of protective policy or of wage policy) of the maximum amount of
labour allowed to be performed within the astronomical day, by confining
it within a certain specified number of hours--might also be called, and
indeed used more frequently to be called, the "normal working-day." It
is better, however, not to employ this alternative designation. When the
word "normal working-day" is used in a special sense, it means something
quite different from the maximum working-day; for it is a unit of social
measurement by means of which it is supposed that we can estimate all
labour performance however varying, both in personal differences and in
differences of kind of work, so that we may arrive at a socially normal
valuation of labour, and a socially normal scale of valuation of
products. It is an artificial common denominator for the regulation of
wages and prices which perhaps may be attained under the capitalist
system, but which ultimately points to a socialistic commonwealth. The
maximum working-day of protective right might exist side by side with
the regulation of a "normal working-day," but it has no essential
connection with it.
Hence we might pass by this normal working-day which is wholly
unconnected with State protection, but we think it necessary to touch
upon it. There still exists a confusion of ideas as to the maximum and
"normal" working-days. The meaning of the latter is not formulated and
fixed in a generally recognised manner. It is quite conceivable, nay
even probable, if the Socialist fermentation among the labouring masses
should increase rapidly, that the proposal of a maximum working-day,
will take the form of the "normal working-day," and that in the very
worst and wildest development of the idea of normal working-time. This
alone affords sufficient reason for our drawing a sharp distinction
between the maximum working-day of protective legislation and the
"normal working-day," and above all for clearly defining the meaning of
the latter.
This is no easy task for several reasons.
The determination of the meaning of "normal working-day" includes two
points: what we mean by fixing a normal, and what we should regard as
"socially normal," _i.e._ just, fair, proportionate, and so on.
The normal working-day would be a State normalised working-day (as
opposed to a restricted working-day) adopted for the purpose of
preventing abnormal social and industrial conditions, and as far as
possible restoring normal relations. This would be the widest meaning of
normal working-day.
The maximum working-days of protective policy, and of wage policy, are,
or aim at being, normal working-days in this widest sense. Both are
working-days legally normalised for the purpose of obtaining by a
development of protective policy, or of protective and wage policy
combined, more normal conditions of work. But this does not make it
advisable to adopt the alternative designation of normal working-day
rather than of maximum working-day. There are several kinds of normal
working-days in this wide sense, or at least we can conceive of several;
even minimum working-days might be looked upon as normally regulated
days. The term might designate the _normal_ working-day demanded on
political, social, or educational grounds, perhaps even the maximum
working-day which would secure to the worker every day leisure for the
non-industrial occupations above mentioned; moreover it might designate
a minimum normal working-day--almost indispensable under a communistic
government--which would compulsorily fix a daily minimum of labour, and
thereby ensure production adequate to the normal requirements of the
whole community; another normal working-day, in the widest sense of the
term, would be such a maximum working-day under a communistic
government, as should aim at preventing the diligent from working more
and earning more than others, and thereby destroying equality. None of
these normal working-days (in the widest sense) concern us now; the
existing social order does not require for its just and fair regulation
the introduction of such normal working-days, and the _cura posterior_
of a socialism or communism which as yet possesses no practical
programme is not a theoretically fruitful or practically important
matter for discussion, at least not within the limits of this book. The
normal working-day with which we need to concern ourselves here--and the
term is still frequently used in this narrower sense, though not
universally--is, as already indicated, that normal day which should
serve as a general standard of a socially equitable--normal or more
normal (compared to the old capitalist regulations)--valuation of the
performances of labour, and of the products of labour, as a means of
reducing the various individual performances of labour to proportional
parts of a "socially normal" aggregate of the labour of the nation, and
as a social measure of the cost of labour products, thereby serving as a
means to a "socially normal" regulation of prices.
_Rodbertus_ is the writer who has most clearly sketched for us the idea
of such a normal working-day. We shall best understand what is meant by
it, by listening to this great economic thinker. _Rodbertus_ sought for
a more normal regulation of wages, within the sphere of the existing
social order, by the co-operation of capital and wage labour, giving to
the wage labourer as to the employer his proportional share in the
aggregate result of national production.
As a solution of this problem, he lays down a special normal _time_
labour-day and normal _work_ (amount of work) labour-day, by considering
which two factors he proposes to arrive at a unit of normal labour which
shall serve as a common basis of measurement.
In order to bring about the participation of all workers in the nett
result of national production in proportion to their contribution to
it--hence without keeping down the better workers to the level of the
worst, and without endangering productivity--it is necessary, Rodbertus
holds, to reduce to a common denominator the amounts of work performed
by individual workers, which vary very considerably both in quantity and
quality. By this means he thinks we shall be enabled to establish a fair
relation between work and wages. The normal _time_ labour-day is to
furnish us with a simple measurement of the product of labour in
different occupations or branches of industry; and the normal _work_
labour-day is to give us a common measure of all the varying amounts of
work performed in equal labour time by the individual workers.
He points out that astronomically equal working time does not mean, in
different industries, an equal out-put of strength during an equal
number of hours, nor an equal contribution to society. Therefore the
different industrial working-times must be reduced to a mean social
working time: the normal _time_ labour-day. If this amounts to 10 hours,
6 hours work underground might equal 12 hours spinning or weaving work.
Or, which would be the same, the normal _time_ labour-day would be 6
hours in mining, and 12 hours in textile industries; the hour of mining
work would be equal to 1-2/3 hours of normal time, the hour of textile
work would be equal to 5/6 hour of normal time. The normal _time_
labour-day would serve to determine periodically the proportionate
relations which exist between the degrees of arduousness in labour of
different kinds, with a view to bringing about a just distribution of
the whole products of labour according to the normal proportional value
of its out-put in each kind of employment, in each department of
industry, such proportional value being determined by means of the
normal time measure. Also it would lead to the fair award of individual
wage, for if any one were to work only 3 instead of 6 hours in coal
mining, or only 5 hours in weaving or spinning, he would only be
credited with and paid for half a day of normal working time.
The normal time day is not however sufficient to establish a just
balance between performance of work and payment; for in an hour of the
same industrial time value, one individual will work less, another more,
one better, another worse. The combined interests of the whole community
and the equitable wage relations of the different workers to each other,
demand therefore the fixing of the normal performance of labour within a
defined working time, in short the fixing of a unit of normal work.
Having normalised industry on a _time_ basis, we must now normalise it
on a _work_ basis. And this is how _Rodbertus_ proposes to do it:
According as the normal _time_ labour-day has been fixed in any trade at
6, 8, 10, or 12 hours (in proportion to the arduousness of the work,
etc.), the normal amount of work of such a day must also be fixed for
that trade, _i.e._ the amount of work must be determined which an
average workman, with average skill and industry, would be able to
accomplish in his trade during such a normal time labour-day. This
amount of work shall represent in any trade the normal amount of work of
a normal _time_ labour-day, and therewith shall constitute in any trade
the normal _work_ labour-day, which would be equal to what any workman
must accomplish within the normal _time_ labour-day of his trade, before
he can be credited with and paid for a full day, that is, a normal
_work_ labour-day. Hence if a workman had accomplished in a full normal
_time_ labour-day, either one and a half times the amount, or only half
the amount of normal work, he would _e.g._ in the six hours mining day,
for six hours work, be credited with a day and a half, or half a day
respectively of normal work time; whilst in spinning and weaving, on the
other hand, he would in the same way, for 12 hours work, be credited
with one and a half or a half-day respectively of normal work time.
In this way _Rodbertus_ claims to be able to establish a fair measure
and standard of comparison for labour times, not merely between the
various kinds of trades and departments of industry, but also between
the various degrees of individual efficiency. Each wage labourer would
be able to participate proportionately in that portion of the national
product which should be assigned to wage-labour as a whole. If therefore
this portion were to be increased in a manner to which we shall
presently refer, there would also be a rise in the share of the
individual workers, in proportion to the rise in the nett result of
national production. This scheme would form the groundwork of an
individually just social wage system, a system by which the better
workman would also be better paid, which would therefore balance the
rights and interests of the workers among themselves, which moreover
would ensure the productivity of national labour by variously rewarding
the good and bad workers, thus recognising the rights and interests of
the whole community, and lastly, which would continuously raise the
labour-wage in proportion to the increase in national productivity (and
also to the increasing returns of capital, whether fixed or moveable,
applied to production).
I may here point out, however, that with all this we should not have
arrived at an absolutely just system of remuneration of wage labour,
unless we introduced a more complete social valuation of products in the
form of normal labour pay instead of metal coinage.
But _Rodbertus_ wishes to see his "normal _work_ labour-day"--equal to
10 normal work hours--established as a universal measure of product
value as well as of the value of labour: "Beyond and above what we have
yet laid down the most important point of all remains to be established;
the normal _work_ labour-day must be taken as the unit of _work time_ or
_normal time_, and according to such work time or normal time (according
to labour so computed) we must not only normalise the _value of the
product_ in each industry, but must also determine the wages in each
kind of work."
He claims that the one is as practicable as the other. First, with
regard to regulating the value of product according to work time or
normal work. In order to do this the "normal work labour-day"--which in
any trade equals one day (in the various trades it may consist of a
varying number of normal time hours), and which represents a quantity of
product equal to a normal day's work--this normal work day must be
looked upon as the unit of work time or normal work, and in all trades
it must be divided into an equal number (10) of work hours. The product
in all trades will then be measured according to such work time. A
quantity of product which should equal a full normal day's work, whether
it be the product of half a normal time labour-day, or of two normal
time labour-days, would represent or be worth one work day (10 work
hours); a quantity of product which should equal half a normal day's
work, whether it be the product of a normal work time or not, would
represent or be worth half a day's work or five work hours.
The product of a work hour in any trade would therefore, according to
this measure, equal the product of a work hour in all other trades; or
generally expressed: Products of equal work times are equal in value.
Such is approximately the scheme of _Rodbertus_.
A really normal labour-day--normal _time_ and normal _work_
labour-day--would be necessary in any regulated social system that
sought on the one hand, in the matter of distribution of wages, to
balance equally "the rights and interests of the workers amongst
themselves"; and on the other hand, in the matter of productivity, to
balance equally the "rights and interests of the workers with those of
the whole community," by means of State intervention. It would therefore
be necessary not merely in a State regulated capitalist society, with
private property in the means of production, as _Rodbertus_ proposed to
carry it out under a strongly monarchical system, but also and specially
would it be necessary under a democratic Socialism, if, true to its
principles as opposed to Communism, it aimed at rewarding each man
proportionately to his performance, instead of allowing each man to work
no more than he likes, and enjoy as much as he can, which is the
communistic method.
The only difference would be this: that any socialistic system must
divide the nett result of production--after deducting what is required
for the public purposes of the whole community--in proportion to the
amount of normal time contributed, and must make the distribution in
products valued according to the cost of their production computed in
normal time; whilst _Rodbertus_, who wishes to preserve private
property, finds it necessary to add one more point to those mentioned:
the periodical normalisation of wage conditions in all trades. He is
very clear upon this point. "The State must require the rate of wage for
the normal working-day in any trade to be regulated and agreed upon by
the employers and employed among themselves, and must also ensure the
periodical readjustment of these regulations and the increase in the
rate of wages in proportion to the increase in the productivity of
work."
But _Rodbertus_ clearly perceived the difference between a normalised
capitalist system and a normalised socialism, neither communistic nor
anarchist. Were the workers alone, he continues, entitled to a share in
the national product value, every worker would have to be credited with
and paid for the whole normal time during which he had worked, and the
whole national product value would be divided amongst the workers
alone. For instance, if a workman had accomplished one and a half normal
day's work in his normal time working-day, he would be credited with 15
work hours, and paid accordingly; if he had only accomplished half a
normal day's work in the whole of his normal time working-day, he would
be credited with only five work hours. The whole national profit, which
would be worth x normal work, would then go in labour wage, which would
amount to x normal work. But such a state of things, which may exist in
the imaginations of many leaders of labour is, according to Rodbertus,
the purest chimera: "In no condition of society can the worker receive
the whole product of his normal work, he can never be credited in his
wage with the whole amount of normal work accomplished by him; under all
circumstances there must be deducted from it what now appears as ground
rent and interest on capital." Ground rent and interest on capital are,
according to Rodbertus, remuneration for "indirect work" for the
industrial function of directing or superintending production. "If
therefore the worker has accomplished, in his normal time working-day,
10 hours of normal work, in his wages he will perhaps be only credited
with _three_ work hours, in other words the product value of three work
hours will be assigned to him"; for the product value of one work hour
would represent perhaps his contribution to the necessities of the State
(taxes), and three work hours would have to go towards what is now
called ground rent, and another three to interest on capital.
It is impossible here to enter upon a complete critical discussion of
the practicability of the capitalist normal working-day, as conceived by
Rodbertus; but I may be allowed in passing to indicate one or two points
of criticism.
I maintain my opinion expressed above, that the cost of production in
terms of normal labour is not the only factor to be considered in the
valuation of products and the regulation of wages; hence, I still claim
that the social measure of value in terms of the cost of production
cannot be applied to labour products or to labour contributions without
reference to the rise and fall of their value in use. Should, however,
the State eventually interfere in the regulation of wages and prices,
then I allow that the normal working-day of Rodbertus would become of
importance to us for that purpose. For the rest, I hold that it has by
no means been proved that such an exercise of interference could succeed
even under a monarchical government based on private property, far less
under a democratic government with a socialistic system of ownership.
Neither do I regard it as proved that this method of State normalisation
would actually achieve the establishment of a more normal state of
affairs than can be arrived at in a social system where freely organised
self-help is the rule, _i.e._ where both classes, Capital and Labour,
can combine freely among themselves within the limits of a positive code
safeguarding the rights of the workers. The direction taken by modern
industrial life towards the harmonious conciliation of both classes, by
means of the wage-list, the wage-tariff, and the sliding scale with a
fixed minimum wage for entire branches of industry, and so forth,
promises an important advance towards the establishment of a more normal
wage-system.
In considering the question of the working-day as an instrument for
affecting wages, it will be found that on the whole perhaps as much, or
even more, may be achieved (and with fewer countervailing disadvantages)
by the maximum working-day of free contract, varying according to trade,
than by the normal working-day in the narrow meaning which Rodbertus has
given to the term.
The complete elimination of the capitalist individualistic method of
determining wages and prices, in favour of the measurement by "normal
time" and "normal work" alone, would be open to grave objections both in
theory and practice. Above all there is the practical danger of
overburdening the State with the task of regulating and normalising, a
task which only the most confirmed optimism would dare to regard
lightly. It appears to me exceedingly doubtful at the present whether
any State, even the most absolute monarchy with the best administration,
would be competent to undertake such a task. I can see no likelihood of
satisfaction on this point for some time to come, and must therefore
range myself on the side of those who claim a better chance of success
for the simpler method of improved organisation for the free settlements
of wage-disputes by united representatives of both classes. But these
and similar investigations are beyond the range of the main subject
under discussion in this book.
My task is to prove that the maximum working-day of protective policy,
or of protective and wage-policy, has nothing to do with the normal
working-day in its strict sense--whether it be the normal working-day of
Rodbertus separately adjusted in separate branches of industry, or the
all-round normal working-day of non-communistic socialism. The normal
working-day in the precise sense of Rodbertus, or even in the sense of
the more rational socialists, affords an artificially fixed unit of
value for the equitable determination of wages and prices; but it is
neither a regulation by protective legislation of the longest
permissible duration of the work within the astronomical day, nor a
method of influencing the capitalistic settlement of wages by the legal
enforcement of a much shorter maximum working-day. A normal working-hour
would serve as well as a normal working-day for a common denominator for
the uniform reduction of the various kinds of work to one normal measure
of time and labour, with a view to the valuation of the products and
contributions of labour.
It may be said that the normal working-day, in the sense of Rodbertus,
by virtue of its being a matter periodically fixed and prescribed, is a
normal working-day also in that wider sense in which the term may
equally be applied to the maximum working-day of protective policy. But
it cannot claim the title of normal working-day from the fact of this
_fixity_ or this _artificial regulation_, but only from the essential
fact that it serves the purpose of a valuation of labour products and
labour contributions on a scale which is really normal, _i.e. socially
just and equitable_.
The importance from a theoretic point of view of a distinction between
the maximum working-day and the normal working-day would of itself have
justified our dwelling on the foregoing details. But these details are
also of practical importance in considering the policy of the ten hours
day of Labour Protection, as against the legal eight hours day. One word
more on this point: _the eight hours day threatens to ultimately
develope, should Socialism as an experiment ever be tried, into a normal
working-day of the worst possible kind_.
Democratic Socialism has, hitherto at least, adopted on its party
programme no formulary of the normal working-day required by it. It will
scarcely find a better formulary than that of _Rodbertus_ (omitting the
periodical re-adjustment of the whole share of Labour as against
Capital, see pp. 123, 124). The normal measure of _Rodbertus_ would be
an incomparably superior method to that of regarding as equal all
astronomic labour time without respect to differences in the arduousness
of the labour in the various trades, no attempt being made to determine
the unit of normal work per normal time-day or normal time-hour. But
would Democratic Socialism have really any other course open to it than
to treat all labour time as equal, and so to bring about the adoption of
a socialistic normal time of the most disastrous type, viz. the
submergence of the _socially normal working-day_ in the _general maximum
working-day_?
To the enormous difficulties, technical and administrative, inherent in
the normal labour time of Rodbertus, would inevitably be added the
special and aggravated difficulties arising from the overpowering
influence of the masses under a democratic "Social State," on the
regulation of normal time. Social Democracy, as a democracy, would
almost necessarily be forced to concede the most extreme demands for
equality, _i.e._ the claim that the labour hour of every workman should
be treated as equal to that of every other workman, without regard to
degrees of severity, without regard to differences of kind, and without
regard to degrees of individual capacity and the fluctuations of value
in use. In any case the Social State would probably not dare to
emphasize in the face of the masses the extraordinary differences of
normal labour in astronomically equal labour time, _i.e._ it might not
venture to assign different rewards to equal labour times on account of
differences in the labour. And yet if it failed to recognise those
differences Social Democracy would be doomed from the outset.
It can thus be easily understood why Social Democracy has hitherto
evaded her own peculiar task of precisely determining a practicable,
socialistic, normal working-day.
There were two ways in which it was possible to do this: either by
merely agitating for an exaggeration of the maximum working-day of
capitalist Labour Protection, or by adhering to the communistic view
which altogether denies the necessity for any reduction to normal time.
And we find in fact among Social Democrats, if we look closely, traces
of both these views.
According to the strict requirements of the Socialists, not only a
maximum working-day, but also and especially a minimum working-day
ought properly speaking to be demanded in order to meet the dire and
recognised needs of the large masses of the people. Instead of this,
Social Democracy holds out the flattering prospect of a coming time in
which the working-day for all will be reduced to two or three hours, so
that after the need for sleep is satisfied, at least twelve hours daily
may be devoted to social intercourse, art and culture, and to the
hearing or delivering of lectures and speeches. No attention whatever is
paid to the trifling consideration, that either there might be a
continual increase in the population and a growing difficulty in
obtaining raw material for the purposes of production; or on the other
hand that the population might remain stationary or decrease, and
therewith progress in technique and industrial skill might come to an
end.
While more and more the hopes of the people are being excited by
promises of great results from the progressive shortening of the maximum
working-day--through the increased productivity of labour--still we hear
nothing with reference to the normal working time, or the regulation by
it of values of products and labour. The party has not yet, to my
knowledge, committed itself at all on this point; it is probable
therefore that it has not arrived at possessing a clearly worked out
conception of this, the very foundation question of the socialistic,
non-communistic "Social State"; still less has it any programme approved
by the majority of the party.
To represent equal measures of working time of different individuals in
different trades by unequal lengths of normal time, or, in other words,
to assign unequal rewards to astronomically equal measures of working
time, is an idea that goes assuredly against the grain with the masses
of the democracy. It is found better to be silent on this point. Hitze,
who has taken part in all transactions of protective legislation in the
German Reichstag, states from his own experience that the parliamentary
wing of the Social Democrats has always had in view the _maximum_
working-day, and never the _normal_ working-day. He says: "None of those
who have moved labour resolutions in the German Reichstag (not even such
of them as were Social Democrats) have ever contemplated the
introduction of the normal working-day, either as intended by the
socialistic government of the future, or as conceived by Rodbertus--but
they have always had in their minds the maximum working-day only--the
fixing of an upward limit to the working time permissible daily, even
though they may frequently have made use of the rather ambiguous
expression 'a normal working-day.'"
It will, however, be impossible for the movement to continue to evade
this main point. In spite of all danger of division, in one way or
another the party must come to a decision, must formulate on its
programme some socialistic normal working-day as a common denominator
for the valuation of commodities, and the apportionment of remuneration
to all. The result of this would be to destroy all the present illusions
concerning the possibility of providing employment for the industrial
"reserve army," and securing a general rise of wage per hour by means
of the adoption of an eight hours day.
There are then only three courses open to them; either to develope the
normal working-day logically into a socialistic form, perhaps by making
use of the proposals of Rodbertus; or secondly, to treat the maximum
working-day as the normal working-day, _i.e._ to regard the hours of
astronomical working time of all workers as equal in value (without
attempting any reduction to a _socially normal_ time), and to make this
the basis of all valuation of goods and apportionment of remuneration;
or, thirdly, the communistic plan of dispensing with all normal
working-time on the principle that each shall work as little as he
chooses, and enjoy as much as he likes.
The first of these possible courses--the adoption of the views of
Rodbertus--is rendered unlikely by the democratic aversion to reckoning
equal astronomical times of work as unequal amounts of normal work, to
say nothing of the practical difficulties and deficiencies which I have
already pointed out in Rodbertus' formulary.
The second course is the one that would more probably be followed by the
Social Democrats; viz. the completion of their programme by identifying
the standard of normal working-time with the astronomical individual
working-time, _i.e._ by assigning a uniform value to all hours of
astronomical time. But in this event Social Democracy would alienate the
very pick of its present following; for this identification would
involve that the more industrious would have to work for the less
industrious, and the latter would gain the advantage. It can hardly in
any case come to a practical attempt to enforce this view; but even
theoretically the strongest optimism will not be able, I believe, to
explain away the probability, approaching to a certainty, that such an
attempt, implying the grossest injustice to the more diligent and
skilful workers, would literally kill the labour of the most capable,
and would therefore lead to an incalculable fall in the product of
national work, and consequently also in wages. But it would be extremely
difficult to convince the masses, among whom the Socialist agitation is
mostly carried on, of the truth of this contention. They would
undoubtedly demand in the name of equality that the astronomical hour
should be treated as the normal working-hour, and this has already shown
itself in the demand for a general minimum wage per hour.
It would be no great step from this to the third and most extreme
alternative. This would be that there is, forsooth, no need for any
normalisation, or for any normal working-day! It should no longer be:
"to each according to his work, through the intervention of the State!"
but rather, "to each one as much work as he can do, and as much
enjoyment as he pleases!" Even that craze for equality, which would make
a normal time-measure of the astronomical hour of the maximum
working-day, would be superseded, and the identification of the maximum
and normal working-days would be set aside by such a view as this.
Practically, we need not fear that matters will go to this extreme. But
it is interesting to note (and since the expiration of the German
Socialist Laws in 1890), it is no longer treading on forbidden ground
to point out that this cheap and easy agitation in the direction of pure
communism which went on for years even under the Socialist Laws and
before the very eyes of the police, has to-day already taken a very wide
hold by means of fugitive literature and pamphlets.
It is not my intention to assert that the present leaders of Social
Democracy are scheming to treat the astronomical working-hour as the
unit of normal time in the event of the introduction of a socialist
government. They are not guilty of such madness. As I have shown, the
present leaders of the Social Democrats are aiming at the eight hours
day only as a protective measure and a means of affecting wages, and
they aim at realising it purely on the present capitalist basis. They do
not give the slightest indication of desiring that the eight hours day
should give to all workers the same wage for every hour of normal or
astronomical working-time. Social Democracy still confines its activity
entirely within the limits of the capitalist order of society, however
much isolated individuals might wish to step forward at once, and
without disguise. But would the present leaders be able to hold their
own if the masses expressed a desire to have each astronomical
labour-hour in their maximum working-day (at present of eight hours, but
no doubt before long of six hours) recognised as the normal time-hour?
I trust that in the foregoing pages I have at least succeeded in making
this one point clear; that the Policy of Labour Protection has nothing
to do with any normal working-day. And for this reason: that it rejects
the _"universal" maximum working-day_; and rejects it not merely as a
measure of protective policy, but also as a measure affecting wages.
FOOTNOTES:
[8] This has so far not yet been done.
[9] Auer Motion, § 130.
[10] Cf. The Commentary on Dollfuss in Brassey's _Work and Wages_.
[11] Official records for 1885.
[12] The motion of Patterson runs thus: "That, in the opinion of this
Congress, it is of the utmost importance that an eight hours day should
be secured at once by such trades as may desire it, or for whom it may
be made to apply, without injury to the workmen employed in such trades;
further, it considers that to relegate this important question to the
Imperial Parliament, which is necessarily, from its position,
antagonistic to the rights of labour, will only indefinitely delay this
much-needed reform."
BOOK II.
CHAPTER V.
PROTECTION OF INTERVALS OF WORK: DAILY INTERVALS, NIGHT REST, AND
HOLIDAYS.
1. _Daily intervals of work._
The uninterrupted performance of the whole work of the day is not
possible without intervals for rest, recreation, and meals. Even in the
crush and hurry of modern industry, certain daily intervals have been
secured by force of habit and common humanity.
Yet the necessity for ensuring such intervals by protective legislation
is not to be disputed, at least in the case of young workers and women
workers in factory and quasi-factory business. From an economic point of
view there is nothing to be urged against it.
In addition to the protection of women and young workers with regard to
duration of daily work, England has also enjoined intervals of rest for
all protected persons. In textile industries the work must not continue
longer than 4½ hours at a time without an interval of at least half an
hour for meals; within the working day a total of not less than 2 hours
for meals must be allowed. In other than textile industries, women and
young persons have a total of 1½ hours, of which one hour at least must
be before 3 o'clock in the afternoon; the longest duration of
uninterrupted work amounts to 5 hours. In workshops where children or
young persons are also employed, the free time for women amounts to 1½
hours; in non-domestic workshops where women alone are employed (between
6 a.m. and 9 p.m.), 4½ hours is the total. The same time is allowed to
young persons. In domestic workshops no free time is legally enforced
for women; for young persons it amounts to the same time as that for
women alone in non-domestic workshops.
I do not wish to deal with the regulations of all countries; I am only
concerned to point out that, as compared with the labour protective
legislation of England, the foremost industrial nation, German
legislation on the protection of intervals appears to be rather
cautious, as even in the _von Berlepsch_ Bill it merely secures regular
intervals for children within the 6 hours work, and for young persons
(from 14 to 16 years) an interval of half an hour at mid-day, besides
half an hour in the forenoon and afternoon, and for women workers an
interval of an hour at midday (§ 135_f_).
The English law requires simultaneous intervals for meals for all
protected persons working together in the same place of business; and
such intervals may not be spent in the work-rooms where work is
afterwards to be resumed.
The _von Berlepsch_ Bill (§ 136, 2) requires only the young workers to
leave the work-rooms for meals, and even this with reservation: "During
the intervals the young workers shall only be permitted to remain in the
work-rooms on condition that work is entirely suspended throughout the
interval, in that part of the business in which the young workers are
employed, or where it is found impracticable for them to remain in the
open air, or where other rooms cannot be procured without
disproportionate difficulty."
The lengthening of the mid-day interval for married women or heads of
households, to enable them to fulfil their domestic duties, is
recommended by the German Reichstag and provided for in the _von
Berlepsch_ Bill, in the fourth paragraph of § 137, as follows: "Women
workers above the age of 16 years, having the care of a household, shall
be set free half an hour before the mid-day interval unless this
interval amounts to at least 1½ hours. Married women and widows with
children shall be accounted as persons having the care of a household,
unless the contrary is certified in writing by the local police
magistrate, such certificate to be granted free of stamp and duty." This
measure indicates a fragmentary attempt from the outside to protect the
woman in her family vocation, and as such belongs to the question of
protection of married women. The opponents of the measure--and they are
many--make the objection that the result will be that women with
families will be unable to obtain employment. Whatever may be said for
or against the measure, there is no doubt that an interval of an hour
and a half at mid-day ought to be granted to every workwoman, to place
and keep her in a position in which she can discharge the duties of
preparing the family meals and looking after her children. Therefore the
injunction of a mid-day interval of 1½ hours in all factory business in
which women over 16 years of age are employed would perhaps be a juster,
more effectual, and more expedient measure, and would not prejudice the
employment of women. But will it be possible to bring about the
international uniform extension of the present interval of two hours to
two hours and a half (inclusive of the forenoon and afternoon
intervals)? The problem is surrounded by undeniable practical
difficulties.
The Auer Motion (§ 106_a_, 2. cf. § 130) demands the extension of
protection of intervals of work to all industries. Hitherto it has only
been extended to women and young workers, and only to such as are
employed in factory and quasi-factory business. We need not here go into
the question whether it can be proved to be to some extent necessary in
the more irksome and laborious trades and in household industry.
2. _Protection of night rest ("Prohibition of night work.")_
Night rest has long been subjected by force of custom and necessity to
very comprehensive measures of protection. Nevertheless it has become
more or less of a necessity, even for men, to supplement such protection
by extraordinary intervention of the State in factory and quasi-factory
industrial trades, in some cases also in handicraft business (_e.g._ in
bakeries, in public-house business, and in traffic and transport
business). The self-help of the workmen and the moral influence of the
civil and religious conscience are no longer a sufficient power of
protection.
The entire general prohibition of all industrial night work would go
beyond the limits of practical necessity, and the State would have no
means of enforcing such a general prohibition.
Exceptions to the prohibition of night work are unavoidable, even in
factory and quasi-factory business (cf. Chap. VII.).
The number of women and children employed in night work is not great. It
might, however, become greater through the introduction of electric
lighting in Germany. Protection of night rest for women and children is,
therefore, as practically necessary as ever.
The actual condition of Labour Protection in regard to night work, and
the efforts and tendencies to be discerned in reference to it at the
present time, are as follows. The resolutions of the Berlin Conference
demand the cessation of night work (and Sunday work) for children under
14, also for young persons, of 14 to 16 years and for women workers
under 21 years of age.
The _von Berlepsch_ Bill (§ 137_i_) altogether excludes night work for
women in factory (§ 154) and quasi-factory business.
Of course exceptions may be permitted by order of the Bundesrath
(Federal Council). The power of the Bundesrath to grant exceptions is
very general and unrestricted (§ 139_a_, 2). "The employment of women
over 16 years of age in night work in certain branches of manufacturing
industry in which such employment has hitherto been customary, shall be
permitted subject to certain conditions demanded by health and
morality."
The Auer Motion demands the exclusion of all women and young persons
from "regular" night work.
3. _Protection of holidays._
Protection of daily intervals secures the necessary intermission of work
during the day. Protection of night rest guarantees the necessary and
natural chief interval within every astronomical day. Protection of
holidays makes provision for the no less needed ordinary and
extraordinary intermission of work during entire days, Sundays, and
festivals.
Strictly speaking, protection of holidays has long existed. The Church
exercised a powerful influence in this respect over legislation and
popular custom. Labour protection only seeks to restore this protection
in its entirety (and as far as possible in its former extent--hence not
merely in factory and quasi-factory business) in the State of to-day,
which is practically severed from the controlling influence of the
Church. Holidays are a general necessity; not merely a necessity for
young persons, not merely in factory and quasi-factory industries, but
in all industries.
But England, the greater number of the North American States, Denmark,
Holland, Belgium, France and hitherto Germany (with its highly
unpractical article § 105, 2, of the Imp. Ind. Code), grant protection
of Sunday rest only to their "protected persons," and only in factory
and quasi-factory business; but we must not here forget that there
exists also protection of opportunities for religious observances
extending over nearly the whole area of national industry, which is
enforced partly by law and partly by tradition.
Austria prohibits Sunday employment in _all_ industrial work.
An important extension and equalising of protection of holidays in
Europe is projected in the resolutions of the Berlin Conference. The
resolutions read as follows: "1. It is desirable, with provision for
certain necessary exceptions and delays in any State: (_a_) that one day
of rest weekly be ensured to protected persons; (_b_) that one day of
rest be ensured to all industrial workers; (_c_) that this day of rest
be fixed on the Sunday for all protected persons; (_d_) that this day of
rest be fixed on the Sunday for all industrial workers. 2. Exceptions
are permissible (_a_) in the case of any business which on technical
grounds requires that production shall be carried on without
intermission, or which supplies the public with such indispensable
necessaries of life as require to be produced daily; (_b_) in the case
of any business which from its nature can only be carried on at definite
seasons of the year, or which is dependent on the irregular activity of
elemental forces. It is desirable that even in such cases as are
enumerated in this category, every workman be granted one out of every
two Sundays free. 3. To the end that exceptions everywhere be dealt with
on the same general method, it is desirable that the determination of
such exceptions result from an understanding between the different
States."
The _von Berlepsch_ Bill ensures a very extensive measure of protection
of holidays by the following means: it extends the application of
provisions § 105_a_ to 105_h_ in paragraph 1 of Chapter VII. of the Imp.
Ind. Code to all workshop labour, it strictly limits Sunday work in
trade and defines the permissible exceptions: moreover, it allows of
unlimited extension of this kind of protection to all industry by means
of an imperial rescript (§ 105_g_), and finally it foreshadows further
protective action in the sphere of common law (105_h_).
The Auer Motion contains a general extension and simplification of
protection of holidays (§ 107, 1): "Industrial work shall be forbidden
on Sundays and festivals" (with certain specified and strictly defined
exceptions).
Protection of holidays serves to four great ends: religious instruction,
physical and mental recreation, family life and social intercourse.
Protection of holidays has to take special measures to meet these four
special ends.
In the first place holidays must be general, for the whole population,
in order to allow of instruction in common, and general social
intercourse. For this reason even the most "free-thinking" friend of
holiday rest will be willing to grant it in the form of Sunday rest and
festival days, and will allow it to be so called; in France and Belgium
only, as appears from the reports of the Berlin Conference, do
difficulties lie in the way of allowing protection of holidays to take
the form of protection of Sundays and festival days.
The second end subserved by protection of holidays will be to ensure
that only the absolutely necessary amount of work shall be performed on
Sundays in those industries in which there is only a conditional
possibility of devoting the Sunday to recreation, family life, and
social intercourse, especially in carrying trades, employment in places
of amusement and in public houses, in professional business, personal
service, and the like, also in all labours which are socially
indispensable. We shall return to this question in Chapter VII.
(exceptions to protective legislation). The question now arises whether
the religious protection of holidays does not already indirectly serve
all the purposes of the necessary weekly rest for labour. This question
must be answered in the negative. It is true that this does effect
something which Labour Protection as such cannot effect, in that it
extends beyond the workers and enforces rest on the employers also and
their families. But it does not ensure to the workers themselves the
complete protection necessary, and it does not fulfil all the purposes
of protection of holidays.
The actual condition of affairs in Germany is as follows, according to
the "systematic survey of existing legal and police regulations of
employment on Sundays and festivals" (Imperial Act of 1885-6). In one
part of Germany the police protection of the Sunday rest is in effect
only protection of religious worship. In another group of districts, the
suspension during the entire Sunday of all noisy work carried on in
public places is enforced, but within industrial establishments noisy
work is not forbidden. A third group of rules lays down the principle
that Sundays and festivals shall be devoted not only to religious
worship and sacred gatherings, but also to rest from labour and
business.
The rules contained in this group apply especially to factory labour,
but in many cases also to handicraft and various kinds of trading
business, without regard to the question whether the work carried on in
such business is noisy or disturbing to the public, exceptions being
granted in certain defined cases. This third group of rules is in force
in the provinces of Posen, Silesia, Saxony, the Rhine Provinces,
Westphalia, the former Duchy of Nassau, and in the governmental district
of Stettin, but in all these only with respect to factory work; also in
the former Electorate of Hesse, the Bishopric of Fulda, the province of
Hesse-Homburg, and in the town of Cassel; in Saxony, Wurtemburg,
Mecklenburg Schwerin, Mecklenburg Strelitz, Saxe-Altenburg,
Saxe-Coburg-Gotha, Anhalt, Schwartzburg-Rudolstadt, the old and the new
Duchy of Reuss and Alsace-Lorraine.
A supplementary statistical inquiry into the extent of Sunday work in
Prussia (not including districts whose official records could not be
consulted) shows that Sunday work is carried on:--
_In wholesale industries_: in 16 governmental districts, by 49.4%
of the works, and by 29.8% of the workers.
_In handicraft business_: in 15 governmental districts, by 47.1% of
the works, and by 41.8% of the workers.
_In trading and carrying industries_: in 29 governmental districts,
by 77.6% of the employers or companies, and by 57.8% of the
workers.
Hence there can be no doubt as to the necessity in Germany for
extraordinary State protection of the Sunday holiday, by means of
protective legislation, applying also to handicraft business and to a
part of trading and carrying industry.
About two-thirds of the employers and three-fourths of the workmen have
declared themselves for the practicability of the prohibition of Sunday
work, nearly all with the proviso that exceptions shall be permitted.
The duration of holiday rest practically can in most cases be fixed from
Saturday evening till early on Monday morning.
The _von Berlepsch_ Bill proposes to enforce legally only 24 hours; the
Auer Motion demands 36 hours, and when Sundays and festivals fall on
consecutive days, 60 hours.
The shortening of work hours on Saturday evening in factory industries
and in industries carried on in workshops of a like nature to factories
is a very necessary addition to Sunday rest; provision must also be made
to prevent the work from beginning too early on Monday morning if Sunday
protection is to attain its object. The shortening of work hours on
Saturday evening is especially necessary to women workers to enable them
to fulfil their household duties, and it is necessary to all workers to
enable them to make their purchases. England and Switzerland grant
protection of the Saturday evening holiday.
Legislation will not have completed its work of extending protection of
holidays, even when the limits have been widened to admit trading
business. Further special regulations must be made for the business of
transport and traffic. Switzerland has already set to work in this
direction. In Germany, in consequence of the nationalisation of all
important means of traffic, much can be done if the authorities are
willing, merely by way of administration.
We cannot lay too much stress on this question of the regulation and
preservation of holiday time by means both of legislative and
administrative action. For its actual enforcement it is true the
co-operation of the local police magistrates is necessary, but the
regulation of this protection ought not to be left in their hands. It
must be carried on in a uniform system and with the sanction of the
higher administrative bodies. We shall return to this question also in
Chapter VII.
CHAPTER VI.
ENACTMENTS PROHIBITING CERTAIN KINDS OF WORK.
Besides the mere protective limitations of working time and of the
intervals of work, we have also the actual prohibition of certain kinds
of work. Freedom in the pursuit of work being the right of all, and work
being a moral and social necessity to the whole population, prohibition
of work must evidently be restricted to certain extreme cases.
Such prohibition is however indispensable, for there are certain ways of
employing labour which involve actual injury to the whole working force
of the nation, and actual neglect of the cares necessary to the rearing
and bringing up of its citizens, and there are certain kinds of
necessary social tasks, other than industrial, the performance of which,
in the special circumstances of industrial employment, require to be
watched over and ensured by special means in a manner which would be
wholly unnecessary among other sections of the community. And thus we
find a series of prohibitions of work, partly in force already, and
partly in course of development.
1. _Prohibition of child-labour._
This is prohibition of the employment of children under 12 years of age
(13 in the south), of children under 10 years of age, in factory work
(see Book I.). Prohibition of child-labour must not be confused with
restriction of child-labour (see Book I.), viz. restriction of the
labour of children of 12 to 14 years of age, in the south of 10 to 12
years of age. It does not involve prohibition of _all_ employment of
children under 12 years of age, such as help in the household or in the
fields.
The prohibition of child-labour within certain limits is necessary in
the interests of the whole nation, for the physical and intellectual
preservation of the rising generation, hence it is to the interest also
of the employers of industrial labour themselves.
Special Labour Protection with regard to child-labour is indeed
necessary. Ordinary administrative and judicial protection evidently are
insufficient to ensure complete security to childhood. Equally
insufficient are any of the existing not governmental agencies, such as
family protection; the child of half-civilised factory hands and
impoverished workers in household industries needs protection against
his own parents, whose moral sense is often completely blunted.
Prohibition of child-labour in factory and quasi-factory industries
rests on very good grounds. It is not impossible, not even very
improbable, that prohibition of child-labour may sooner or later be
extended to household industry; the abuse of child-labour is even more
possible here than in factory work; the possibility is by no means
excluded by enforcement of school attendance. But all family industry is
not counted as household industry. The extension of Labour Protection
in general, and of prohibition of child-labour in particular, to
household industry, raises difficulties of a very serious kind when it
comes to a question of how it is to be enforced.
In the main, prohibition of child-labour will have to be made binding by
legislation. In its eventual extension to household industry, the
Government will however have to be allowed facilities for gradually
extending its methods of administration.
The task of superintending the enforcement of prohibition will in the
main be assigned to the Industrial Inspectorate. The oldest hands in any
business, the "Labour Chambers," and voluntary labour-unions, will
moreover be able to lend effectual assistance to the industrial
inspector or to a general labour-board. The factory list of young
workers may be used as an instrument of administration.
In Germany childhood is protected until the age of 12 years. The
extension of prohibition of child-labour to the age of 14 years in
factory and quasi-factory business, is, however, in Germany probably
only a question of time. The Auer Motion in regard to this represents
the views of many others besides the Social Democrats. Switzerland, as I
have shown, has already conceded this demand, claimed on grounds of
national health. The impending Imp. Ind. Code Amendment Bill places the
limit at 13.
An internationally uniform advance towards this end by the equalisation
of laws affecting the age of compulsory school attendance, would
certainly be desirable.
The widest measure of protection of children is contained in the
Austrian legislation, which decrees in the Act of 1885, that until the
age of 12 years children shall be excluded from all regular industrial
work, and until the age of 14 years, from factory work: "Before the
completion of the 14th year, no children shall be employed for regular
industrial work in industrial undertakings of the nature of factory
business; young wage-workers between the completion of the 14th and the
completion of the 16th year shall only be employed in light work, such
as shall not be injurious to the health of such workers, and shall not
prevent their physical development."
The resolutions of the Berlin Conference recommended the prohibition of
employment in factories of children below the age of compulsory school
attendance.
Resolution III. 4 requires: "That children shall previously have
satisfied the requirements of the regulations on elementary education."
Exclusion of child-labour extends beyond the general inferior limit of
age, in individual cases where the employment of children is made
conditional on evidence of their health, as in England. And here the
medical certificate of health comes in as a special instrument of
administration in Labour Protection.
In certain kinds of business, prohibition of child-labour extends beyond
the general inferior limit of age. England has led the way in such
prohibition, excluding by law the employment of children below the age
of 11 years in the workrooms of certain branches of industry, _e.g._
wherever the polishing of metal is carried on; of children below the
age of 14 years, in places where dipping of matches and dry polishing of
metal is carried on; of girls below the age of 16 years, in brick and
tile-kilns, and salt works (salt-pits, etc.); of children below the age
of 14 years, and girls below the age of 18 years, in the melting and
cooling rooms in glass factories; of persons below the age of 18 years
in places where mirrors are coated with quicksilver, or where white-lead
is used.
2. _Prohibition of employment in occupations dangerous to health and
morality._
Such prohibition seems necessary in all industrial trades. It is however
difficult to enforce it so generally, and hitherto this has not been
accomplished.
The Imperial Industrial Code in the _von Berlepsch_ Bill (cf.
resolutions of the Berlin Conference, Chap. IV. 4, and V. 4) admits an
absolute prohibition of all female and juvenile labour, under sanction
of the local authorities (§ 139_a_ 1.): "The _Bundesrath_ shall be
empowered to entirely prohibit or to allow only under certain
conditions, the employment of women and young workers in certain
branches of factory work, in which special dangers to health and to
morality are involved." The same Bill (§ 154, 2, 3, 4) extends such
prohibition over the greater part of the sphere of quasi-factory
business.
The last aim of protection of health--the exclusion of such injurious
methods of working as may be replaced by non-injurious methods in all
industrial work, and for male workers as well as for women and
children--must be attained by progressive extension of that
administrative protection to which the _von Berlepsch_ Bill opens the
way for quasi-factory labour (§ 154). It would be difficult to carry out
in any other way the Auer Motion, for the "prohibition of all injurious
methods of working, wherever non-injurious methods are possible."
The general principle of prohibition might be laid down by law, and the
enforcement of such prohibition, by order of a Supreme Central Bureau of
Labour Protection, might be left to the control of popular
representative bodies and to public opinion. Special legal prohibition,
with regard to certain defined industries and methods of work injurious
to health, would not be superfluous in addition to general prohibition;
such special prohibition is already in force to a greater or less
degree.
The success of the prohibition in question depends on the good
organisation of Labour Protection in matters of technique and health; on
the efficiency of local government organs, as well as of the Imperial
Central Bureau, and on the impulse given by the more important
representative organs of the labouring classes. All these organs need
perfecting. Special prohibition needs the assistance of police
trade-regulations in regard to instruments and materials dangerous to
health.
The work that has already been done in the way of protection of morality
by prohibition is not to be under-valued, although much still remains to
be done. No sufficient steps have as yet been taken to meet that very
hateful and insidious evil so deeply harmful to the preservation of
national morality, viz. the public sale and advertisement of
preventives in sexual intercourse, such as unfortunately so frequently
appear in the advertising columns of newspapers, and in shop windows.
This is not merely a question of protecting the morality of those
engaged in the production and sale of such articles, but also of
protecting the morality of the whole nation, maintaining its virile
strength, and to some degree also preserving it from the dangers to the
growth of population, incidental to an advanced civilisation. The powers
at present vested in the police and magistrates to deal with offences
against morals would probably be sufficient to stamp out this moral
canker that is eating its way even into Labour Protection, without the
scandal of legislation. But it is not by ignoring it that this can be
accomplished.
The intervention of the State as regards Labour Protection in such
factory and quasi-factory work as is dangerous to health and decency, is
doubtless justified in its extension to household industry and trading
industry of the same kind; for neither is the moral character of the
generality of employers and heads of commercial undertakings
sufficiently perfect, nor are the discretion and self-protection of the
workers sufficiently strong and widespread to render State protection
unnecessary and voluntary protection sufficient.
3. _Prohibition of factory work for married women, or at least mothers
of families._
This is a specially useful measure of protection. Modern industrial work
has done a great injury to the family vocation of the woman, and thereby
to family life; non-governmental agencies of Labour Protection, in its
widest sense, have not been able to prevent this evil.
But the exclusion of wives and mothers from all industrial work, or from
earning money in any kind of domestic occupation, would be far too
extreme a measure. Certain industrial work has always fallen to the
share of the female sex, and the absolute prohibition of female
employment in any kind of industrial work would render large numbers of
persons destitute, especially in the towns, and would thereby expose
them to moral dangers and temptation.
The organs and instruments of administration for the protection of
married women in factory and quasi-factory work, would be the same as
for all other branches of protection of employment of women and young
workers.
Prohibition of factory work for married women is advocated in the most
decisive manner by _Jules Simon_, _von Ketteler_, and _Hitze_. Even the
chief objection to such protection--the danger of the diminution of
worker's earnings, tempting them to seek immoral means of livelihood--is
combated in the most remarkable and convincing manner by Hitze. This
worthy Catholic writer meets the consideration of the loss of the
factory earnings of women, with the counter-considerations of the
depression of wage caused by the competition of female labour, and of
the waste of money at public houses and on luxuries that takes place in
such families as are left without a housewife or mother. We must be
ready to make great sacrifices in the attainment of so great an object,
for no less important a matter is at stake than the restoration of the
family life of the whole body of factory labourers.
Only we must be under no delusion as to the difficulties of the
immediate and complete enforcement of the prohibition. The adaptation of
motor-machinery to use in the house, enabling the wage-earner to remain
at home, might perhaps render it practically possible to carry out the
prohibition in question.
It would also be necessary that the measures taken should be
internationally uniform, so that separate national branches of industry
might not suffer. A practical solution of the problem can only be
arrived at after a careful collection of international statistics as to
the married women and mothers employed in factory and quasi-factory
work. Here especially, if in any department of Labour Protection, does
the State require the support of the influence of the Churches, and of
the organised, simultaneous, international agitation of the Churches in
furtherance of this object. Whoever reads the above-mentioned
writings--_Hitze's_ pamphlet gives extracts from the powerful writings
of Jules Simon and von Ketteler--will derive therefrom some hope of the
final success of Labour Protection in one of its most important future
tasks. In the present situation of affairs I know of nothing which can
shake the validity of _Hitze's_ conclusions.
In the meantime, restriction of employment of all female factory labour
to 10 hours, as proposed by the commission appointed by the German
Reichstag (see below), must be welcomed as an important step in
advance. _Hitze_ remarks: "The first condition of all social reform is
the establishment of family life on a sound and secure basis. But how is
this possible, so long as thousands of married women are working daily
in factories for 11 and 12 hours, and are absent from their homes for
still longer? Can domestic happiness and contentment flourish under such
circumstances? And is the danger any less because concentrated in
defined districts? For example, in the inspectoral district of Bautzen,
in 1884, nearly 5,000 women were drawn away from their family life by
factory work. No extended mid-day interval is granted to married women,
so far as information on this point is to be obtained. Is it merely
accidental that wherever employment of children is customary, there also
the work of the mothers is more frequent? And must not the man's
earnings be lessened if the wife and child are allowed to compete with
him? And is it merely accidental that Saxony, which is precisely the
place where female and child labour is most largely employed, should
also be the special haunt and stronghold of Social Democracy? Have we
any right to reproach the Social Democrats with causing the destruction
of family life, if we show ourselves indifferent to the actual loosening
of family ties through the regular and excessive work in factories of
housewives and mothers? Ought we to delay any longer in appealing to
legislation, when the dangers are so pressing? What will become of the
youth and future of our people if such conditions become normal? And in
fact, unless legislation interferes, the number of factory women and of
factory children will increase, not decrease. What a prospect!"
Separation of the sexes in the workrooms wherever possible, special
rooms for meals and dressing, and provision for education in
housewifery, are measures which are all the more urgent, if we grant the
impossibility of altogether excluding women from factory work. This
further protection is above all necessary for girls.
4. _Prohibition of the employment of women during the period immediately
succeeding child-birth._
Whilst prohibition of factory work for wives and mothers is of the first
importance for the protection of family life, exemption from work during
the period immediately succeeding child-birth of all women engaged in
factory and quasi-factory employments, is a measure that is necessary
for the health of the mother and the nurture of the newly-born.
The exclusion of pregnant women from certain occupations is another
important question; the Confederate Factory Act leaves this in the power
of the _Bundesrath_.
Prohibition of the employment of nursing mothers in factories is a
measure that has long received recognition in some countries, and lately
it has become general.
The resolutions of the Berlin Conference demand that the protection
should cover a period of 4 weeks; Switzerland already grants protection
for 8 weeks, a period which is recommended in Germany by the Auer
Motion; the _von Berlepsch_ Bill proposes 4 weeks (instead of 3 weeks as
hitherto appointed by the Imp. Ind. Code); the Reichstag Commission
proposed 6 weeks, and this will probably be the period adopted.
If it were necessary to enforce exemption from work after childbirth for
_all_ women engaged in industrial wage-labour, even this would scarcely
be found to be attended with insuperable difficulties.
The Auer Motion on this point receives no notice in the _von Berlepsch_
Bill.
It would be preferable in itself for such exemption to become general
even for factory women, without special protective intervention from the
State. But under the existing moral and social conditions legal
prohibition of employment can hardly be dispensed with.
The measure may be carried out by the help of the official birth-list,
or of a special factory list of nursing mothers. The industrial
inspector will not be able to do without the help of the workers
themselves.
The economic difficulties of the question are partly met in Germany by
the existing agency of Insurance against sickness for all factory
workers, which grants assistance during the period of lying-in, as
during sickness. The means of help provided by the family and the club
have to supply the additional assistance necessary for the nursing
period.
The granting of state assistance to women during the lying-in period,
without which exemption from work would be a questionable benefit, is
vigorously opposed by some on grounds of morality as likely to promote
the increase of illegitimate births, and by others from the point of
view of the population question.
The question was brought before the German Reichstag, on the
representation of Saxony, in 1886. Petitions from twenty-one district
sick clubs in the chief district of Zwickau demanded the withdrawal of
the legal three weeks assistance of unmarried women after childbirth, on
the ground that this was calculated to promote an increase in the number
of illegitimate births. The petitions were accompanied by statistics of
each club showing that the funds were actually called in to assist more
unmarried than married women. No information however was given as to the
proportion between married and unmarried women members of the club, an
omission which rendered the statistics worthless. Moreover the
conditions existing in Zwickau are hardly typical of German industry as
a whole.
A general collection and examination of statistics of sick funds must be
made, and possibly the necessary information may be obtained by
comparison of the numbers of births during the periods before and since
the introduction of Insurance against sickness, and especially in such
districts as had no free clubs, before the introduction of Insurance,
for the assistance of women after child-birth.
Probably it will be found that the increase in the number of
illegitimate births is not due to the assistance granted after
child-birth by the official sick fund, if we take into consideration
that in the district mentioned the assistance granted during the three
weeks only amounted to from 7 to 12 marks, generally to less than 10
marks. "If," says _Hitze_, "the meagre sum of the assistance granted
could lead to an increase of illegitimate births, this fact would be
more shocking than the number itself." I take it that the root of the
evil lies, not in the lying-in-fund, but in the destruction of family
life and sexual morality by the employment of women in factories.
5. _Prohibition of employment of women and children in work
underground._
This prohibition is claimed in the interests of family life, of
morality, and of the care of the weaker portion of the working class.
The enforcement of this prohibition comes within the province of the
police in the mining districts, and of the industrial inspectorate.
But it is probably best that it should be legally formulated.
The extension of the prohibition to all women is recommended generally
in the resolutions of the Berlin Conference, and the work has already
been commenced in the _von Berlepsch_ Bill.
The enforcement of the measure will meet with some difficulties in the
mines of Upper Silesia, but it will also remedy serious evils.
The force of public opinion is insufficient to prevent the employment of
women in work underground. The very necessary demand for prohibition of
employment of women in work on high buildings, follows on the
prohibition of their employment underground. Such employment is almost
completely excluded by custom.
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 (§ 139_a_, 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:
"§ 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 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.
"§ 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 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.
"§ 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 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.
"§ 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, 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 potiori_[13] 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 (§ 134_a_-134_g_), permitting the workmen in
any business to exert a considerable influence upon the drawing up of
the working rules. Sections 134_b_ and 134_c_ read thus: "§ 134_b_.
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."
§ 134_d_ 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.
FOOTNOTE:
[13] That is, _after the largest portion of it_.
CHAPTER IX.
THE RELATIONS OF THE VARIOUS BRANCHES OF LABOUR PROTECTION TO EACH
OTHER.
If the various chief branches of Labour Protection are compared with
each other after they have all been examined separately, they appear to
be indispensable and inseparable members of one system, for no one
branch can be spared. But they are very different in nature, and by no
means equal in importance.
Protection of truck and contract have long ago reached their full
development. Both are almost universal in their extension, and are
exercised by the regular administrative courts and petty courts of
justice. They are characterised on the whole by legal precision, which
affords little room for interpretation and extension at the will of the
administration. Protection of contract and protection of intercourse are
required less in the immediate interest of the whole State than in that
of individuals.
But when we come to protection in occupation, it is altogether another
matter.
_Protection by limitations of employment_, which forms the central point
of the latest protective movement, is in all its aims more or less in
contrast to protection of contract and intercourse. It is not a matter
of universal application. It requires special administrative organs,
special methods of procedure with many technical differences of detail
adapted to the peculiarities of different trades. Its full development
requires general legal enactments, a central authority, and a uniform
exercise of administration; it has to deal with the entire working
class, nay more, with the whole body of citizens, and with the spiritual
as well as the material life of the workers and of the nation, because
it constantly affects and influences the lives of larger masses of
labourers.
It must not be supposed that any one branch of protection by limitation
of employment is more important in itself than all the rest. It is not
protection of holidays alone, nor the maximum working-day alone that
will restore the workman to himself, to his place in the human family,
to civic life, to his family, to the performances of his spiritual
duties; but all measures of protection by prohibiting and limiting
employment must work together to effect this. Protection by limitation
of employment, as a whole, seeks to ensure those moral benefits so
finely emphasised in the preamble of the Confederate Factory Act: "The
benefits which may accrue to the country from the factory system depend
almost entirely upon its being ensured that the worker shall not be
deprived of time or inclination to be the educator of his children, and
the head and prop of his family." The maximum working-day effects this
by securing the evening free to all--to fathers, mothers, children, and
young people. Protection of holidays works towards the same end by
securing to everyone the seventh day free for his own life, the life of
his family, and intercourse with his fellow citizens, and for the
performance of his spiritual duties. Prohibition of night work also
contributes its quota towards the same result. Without all this
protection by limitation of employment, the father of the family would
lose his family, the child would lose its training and care, the mother
and wife would lose her children and husband; and all of them would lose
their joint life as citizens, as members of society, and of a religious
community.
It is from these considerations that we must justify the immense
importance which it is the growing tendency of Labour Protection in the
present day to attach to the whole question of protection by limitation
of employment.
CHAPTER X.
TRANSACTIONS OF THE BERLIN LABOUR CONFERENCE, DEALING WITH MATTERS
BEYOND THE RANGE OF LABOUR PROTECTION; DALE'S DEPOSITIONS ON COURTS OF
ARBITRATION, AND THE SLIDING SCALE OF WAGES IN MINING.
The demand for a legal minimum wage, for wage tariffs, and the sliding
scale of wages, form no part of Labour Protection. The State cannot, as
we have seen, regulate wages directly, but only indirectly, by favouring
an adjustment of wages that shall be fair to each side. But even in
measures of that kind it does not interfere for the purpose of
protecting the persons of the wage earners in their _relations of
dependence_ on the employer. Politico-social proposals for indirectly
influencing the movement of wages, do not for this very reason, belong
to Labour Protection, in the sense which I have assigned to the term in
this book. Therefore, I shall content myself, on the one hand, with
clearing up a misunderstanding concerning the minimum wage and the wage
tariff; and on the other hand, with supplementing my former contribution
to the subject (_Jahrg., 1889, Die Zeitschrift für die gesammte
Staatswissenschaft_) from the reports of the Berlin Conference, having
special reference to the regulation of wage in the English mining
industries.
These proposals, dealing with minimum wage and the wage tariff, which I
shall now introduce into my treatise on Labour Protection, do not aim at
enforcing a minimum rate of wage from above, regardless of the
individual value of the labour, they merely aim at providing as far as
possible a stable adjustment and classification of efforts and rewards
between the whole body of employers and the whole body of workers in any
branch of industry or industrial district, _i.e._ at substituting
_general_ for _individual_ control, for the protection not of the worker
alone, but also of the employer, _i.e._ against exploiting competitors.
In Germany the printers have led the way; the number of their followers
in other industries is increasing. But this is a matter that must be
settled by the two classes, not by the State.
Questions of wage policy, however, even when unconnected with protective
policy, are often drawn into discussions on protective policy; and even
the Berlin Conference, which was officially designated[14] "an
international conference on the regulation of labour in industrial
establishments, and in mining industries," frequently overstepped the
limits of questions of purely protective policy. I feel myself fully
justified, therefore, in touching upon a few of the further questions
dealt with by the Conference.
In an earlier treatise, written before the proclamation of the Imperial
Decree of February 4th, 1890, I pointed out the need for the special
cultivation of Labour Protection in mining industry, particularly in
coal mining, and I expressed an opinion as to the advisability of
establishing government mines as a kind of politico-social model to the
rest; while, on the other hand, I declared against the necessity for the
nationalisation of coal mines.
Pamphlets of an opposing tendency, which circulated freely in the wake
of the great coal strike of 1889, have, it is true, brought to light
more and more reliable evidence; but hitherto I have found in them
nothing to shake my confidence in the correctness of my fundamental
contention: as far as I am concerned, I await without anxiety the issue
of the latest Coal Trust.
As I pointed out in the same treatise, the special danger of the strike
agitation, attacking as it does the very centres of activity and
channels of healthy movement in the social body, has unfortunately been
only too fully exemplified. The coal strike, and the railway and dock
strikes, have become samples, and are triumphantly quoted as typical
instances of the success of the method.
In the same treatise I raised the question whether the branches of
industry under consideration should be constituted a department of the
public service, involving special obligations and special safeguards
against breach of contract, but also ensuring special security of work
and a good standard of pay. This question has also risen to a high level
of importance since that time; it does not, however, belong to the
sphere of Labour Protection, and in this treatise I must therefore leave
it on one side.
But I consider myself bound to supplement the information given as to
the means of avoiding strikes in the mining industry by bringing forward
the communications made by the best informed English expert, who sat in
the Berlin Conference (session of March 4). The reports read as follows:
"Mr. Dale reminded the Conference that about twenty-five years ago
numerous and protracted strikes took place in the north of England (in
mining). In consequence of this, the employers met together to discuss
means of regulating the wage question. At first they refused to treat
with the workmen _in corpore_, but they finally decided on the advice of
a few of their number more far-seeing than the rest, to recognise the
union of miners belonging to one and the same mining district. This
principle once admitted formed the groundwork of the prevailing system
of the day for the settlement of all disputes. This method has obtained
for twenty years. At first the representatives of the employers and
workmen were only summoned to negotiate on special questions. The
principle of settlement by arbitration was admitted in all questions,
and was applied in the following manner: each party nominates an equal
number of arbitrators, usually two, and these elect an umpire; this last
office is willingly accepted by persons of the highest standing. Since
the questions laid before the board of arbitration mostly concern the
relation of wages to the market price of coal, this relation has to be
first ascertained from examination of the employers' books by a legally
qualified auditor, before a decision can be given. The most important
experimental method, which has so far been adopted for regulating the
relations between the rate of wage and the market price, has been the
sliding scale. The sliding scale aims at the establishment of a
numerical ratio between the rate of wage and the price of coal. At first
this was sometimes determined by the following method: five consecutive
years are taken, in the course of which considerable fluctuations have
taken place in the market prices and the price of coal (the latter
brought about by strikes, agreements, and arbitration). These five years
are divided into twenty quarters; the average price of coal and the
average rate of wage for each quarter is ascertained, and by this means
the numerical ratio of the two amounts to each other is determined. The
average of these numerical ratios is taken to express the normal
relation which must exist between the rate of wage and and the market
price of coal. Upon the scale thus determined the average market price
for all coal produced in the district for the last preceding quarter is
reckoned. The required numerical normal proportion between prices and
wages is now computed on this basis, and the rate of wage for the
current quarter thus determined. This calculation takes place for every
ensuing quarter. These calculations are made by two qualified auditors,
who are appointed by the labourers' union and the employers' union. The
books of all the works are submitted to these experts, who are bound to
the strictest secrecy as to the information thus obtained. They confine
themselves to the task of attesting: (1) that during the latest
preceding quarter, the average price of coal in the district is such and
such; (2) that such and such a rate of wage results therefrom. In this
way the workmen obtain, without the necessity of negotiation, of
strikes, or arbitration, the same wages which they could not otherwise
have obtained except by repeated efforts. The numerical ratio between
wages and market prices is generally fixed for two years. After that
time each party may give a half year's notice; but during six years, the
first sliding scale introduced has only been subjected to very slight
alterations. Notice will shortly be given by the employers in
Northumberland and the miners in Durham. Mr. Dale believes that this
double notice does not aim at the abolition of the system, but only at
revision of the existing scale. In the districts where for the moment
the sliding scale has been abolished, an attempt is being made to take
the nearest conjectural price of the current quarter as the basis,
instead of the price of the previous quarter. In this way the workmen
would receive official information as to the market prices, which would
be a great advantage, for strikes are most frequently caused by the
ignorance of the workmen as to the real position of the coal trade. As
to local questions which do not affect the whole district, they are
settled by so-called 'joint committees,' or mixed commissions formed by
an equal number of workmen and employers; either the President of the
county court, or some other person of high position, is chosen as
chairman. These commissions meet generally once a fortnight; their
decisions operate from the date of the complaint. Mr. Dale asserts that
the heads of the labour unions are, for the most part, intelligent men,
and when this is the case, the relations between workmen and employers
are easily arranged; in Durham, _e.g._, the miners union has four
secretaries, who devote their whole time to the affairs of the
association. In this district more than 500 disputes yearly are settled
by the joint committee."
At the request of the President, Mr. Dale gave some information as to
the strike of the past year; it did not affect the northern district
where good relations existed, although notice had previously been given
on the sliding scale. He further pointed out that former strikes had
often been caused by the fault of the foremen, who treated the workmen
with undue harshness. "The introduction of joint committees, on which
the workmen are equally represented, has had the effect of establishing
better relations between the foremen and the miners. Mr. Dale considers
this the best system for the avoidance of crises. The decisions
pronounced by the board of arbitration, and by the joint committees, are
generally accepted; thus the principle of decision by arbitration takes
the place of that of decision by strikes."
FOOTNOTE:
[14] Concluding speech of the Prussian Minister of Commerce.
CHAPTER XI.
THE "LABOUR BOARDS" AND "LABOUR CHAMBERS" OF SOCIAL DEMOCRACY.
Of all the problems with which the science of government is confronted
in the present and the near future, there are few in the domain of
Social Policy of greater importance, or more fraught with serious
possibilities in their results, than the establishment on a democratic
basis, both in constitution and in administration, of the organs of
Labour Protection.
This tendency appears already in the demand for equal representation of
both classes in the organisation of Labour Protection. The establishment
by local governing authorities of industrial courts of arbitration has
been a step in this direction, a step which has not entirely been
retraced by recent legislation in Germany, dealing with such courts.
The form which Social Democracy has given to this idea by the proposal
of "Labour Boards" and "Labour Chambers," brought forward in the Auer
Motion, is a matter of the highest interest. So far as I know, this form
has received very little, or at any rate insufficient, attention in the
Reichstag or the Press. This is the more surprising for two reasons,
viz., the justice of its attempt at a better protective organisation,
and the serious import of its evident tendency to evolve out of the
Capitalist System a Social Democratic order of society.
I think, therefore, that just because of this extreme step in
organisation which the Auer Motion takes in proposing Labour Boards and
Labour Chambers, as instruments of Labour Protection, it behoves me not
to pass it by with indifference, but on the contrary to dwell upon it at
some length.
In the first place let us construct in our own minds a picture of the
new form of organisation proposed in the Auer Motion.
In the place of Art. IX. in the existing Imp. Ind. Code, a new Chap. IX.
would have to be inserted, dealing with "an Imperial Labour Board,
District Labour Boards, Labour Chambers, and Labour Courts of
Administration" (§§ 131-143).
1. _The Imperial Labour Board and the Imperial Labour Parliament._
_The Imperial Labour Board._ Its organisation would be determined by
special Imperial legislation. Probably equal representation of classes
is intended in this Central Bureau, which would act together with the
hitherto essentially bureaucratic Imperial Insurance Board. Its duties
would consist: first, in supervising so far as possible, the whole
system of Labour Protection as demanded in the Auer Bill (§§ 105-125);
further, in affording protection against the competition of penal
labour; finally, "in enforcing such measures and conducting such
enquiries as may be necessary to the well-being of the whole body of
wage-earners, including apprentices, in any kind of industry." Its
duties would therefore extend far beyond the limits of Labour Protection
in the strict sense, and it would be a general Central Bureau of aids to
Labour, in which the Imperial Insurance Board would soon become
incorporated.
_The Labour Parliament_ (Diet of Labour Chambers). I take leave thus to
designate the representative central organ proposed (although of course
it is not brought forward in these terms in the heading of the new Chap.
IX. of the Auer Bill) since it is clear that the Imperial Labour Board
is practically only intended to be the executive organ of this
democratic industrial Council of the nation. Sections 140-142 of the
Auer Motion require that: § 140 "It shall be the duty of the Imperial
Labour Board to summon once a year representatives from the collective
Labour Chambers to a general deliberation on industrial interests. To
this General Council each Labour Chamber shall send one delegate to
represent the employers, and one the body of wage-earners. The choice of
the representatives shall be made by each class separately. The chair
shall be taken at the Council by a member of the Imperial Labour Board,
but he and his colleagues shall have no right to vote. The Council shall
determine its own standing orders and the orders of the day; the
sittings to be public. § 141. The members of the Labour Chambers shall
receive daily pay and defrayment of travelling expenses. § 142. The
Imperial Government shall pay the costs of the arrangements enumerated
in §§ 131-140; they shall be entered yearly in the imperial accounts."
Thus we should have a national Labour Parliament--formed from the
district Labour Chambers--with equal representation of both classes,
receiving grants from the Imperial exchequer, undertaking the general
supervision of industrial interests and acting as a check on the
Imperial Labour Board. By the simple process of throwing overboard the
nominees of the employers, this Labour Parliament might at any time
become a pure parliament of labourers, or "People's Parliament," and the
Imperial Labour Board might resolve itself into the central ministry of
a purely "People's State."
Such a state of things would obviously be the realisation of the extreme
Social Democratic order of State.
It must be admitted that no secret is made of this fact, nor yet of the
_basis_ on which the whole edifice is raised.
(2) _Labour Boards and Labour Courts of Arbitration, Labour Chambers._
The basis of the edifice is formed by Labour Boards and Courts of
Arbitration, on the one hand (_i.e._ for executive purposes), and Labour
Chambers on the other (_i.e._, for purposes of regulation). We shall, as
far as possible, give the explanation of the matter in the words of the
motion.
_Labour Boards._ On this head the Auer Motion reads as follows: "§
132_a_. Below the Imperial Labour Board come the Labour Boards which
shall be appointed throughout the German Empire, in districts of not
less than 200,000, nor more than 400,000 inhabitants, at the latest by
Oct. 1, 1891. § 133. The Labour Board shall consist of a Labour
Councillor and at least two paid officers; it must pass its rulings and
decisions in full sitting. The Imperial Labour Board shall select the
labour councillor from two candidates nominated by the Labour Chamber.
The permanent paid officers, whose duty it is to assist the labour
councillor in his task of supervision, shall be elected by the Labour
Chamber, half from the employers, and half from the employed. In
districts in which there are a considerable number of works employing
chiefly female labour, some of the officials appointed shall be women.
The same rules with regard to invalid and superannuation pensions shall
apply to the officers of the Labour Boards, as apply to all other
imperial officials. § 133_a_. The officers of the Imperial Labour Board,
and the labour councillors or their paid assistants, shall have the
right at any time to inspect all places of business (whether of State,
municipal, or private enterprise) and to make such regulations as may
appear necessary for the life and health of the workers employed. In the
exercise of such supervision they shall be empowered with all the
official authority of the local police magistrates. In so far as the
rules laid down are within the official authority of the supervising
officers, the employers and their staff shall be bound to render
unhesitating obedience. The employer or his representatives shall have a
right of appeal to the District Labour Board, to be lodged within a
week, against the orders and rulings of individual officials, and a
right of appeal against the District Labour Board's decision, also
within a week, to the Imperial Labour Board. The Labour Board shall be
bound to inspect all the works within a district at least once a year.
The employers shall permit the official inspection to take place at any
time when the work is being carried on, especially also at night. The
inspecting officers shall be bound, except in cases of infringement of
the law, to observe secrecy as to all information on the concerns of a
business obtained by them in pursuit of their official duties. § 133_b_.
The local police magistrates shall uphold the Labour Board in the
exercise of its authority, and shall enforce obedience to its
directions. § 133_c_. The Labour Board shall organize all free labour
intelligence within its district, and serve in fact as a central bureau
for this purpose. It shall also be empowered to appoint branch bureaux
with this object, in such places as may seem suitable, and if there is
no industrial union to undertake the duties the local police magistrates
shall undertake them. § 133_d_. Every Labour Board shall publish a
yearly report of its proceedings, copies of which shall be distributed
gratuitously to the members of the Labour Chambers by the Imperial
Labour Board and the Central District Courts. The report shall be
submitted to the approval of the Labour Chamber before publication. The
Imperial Labour Board shall draw up yearly, from the annual reports of
the Labour Boards, a general report to be submitted to the _Bundesrath_
and the Reichstag. The reports of the District Labour Boards and the
Imperial Labour Board shall be accessible to the public at cost price."
The Labour Board of a district of from 200,000 to 400,000 inhabitants
would be in the first place a modern kind of industrial inspectorate
with offices filled from both classes--employers and employed--with a
democratic system of election, and to which women would also be
eligible. Even the presidency of this inspectorate would not be freely
appointed by the government, which would have only the power of electing
one out of two nominees of the Labour Chambers. The primary task of the
board would take the form of Labour Protection, of centralization of
labour intelligence, and of drawing up reports on matters concerning
labour. The Labour Board is intended as the executive organ of the
Labour Chambers, the parliamentary administration would therefore be
general; even in reporting on industry the Labour Board would be subject
to the approval of the Labour Chamber. It is evident that this
Democratic organisation of courts, which would be powerless to act so
long as both classes obstructed each other, might easily at one stroke,
by turning out the nominees of the employers, be changed and developed
into purely democratic district courts for the general protection of
labour and the control of production.
_Courts of Arbitration._ The Court of Arbitration as proposed by the
Auer Motion, is, so to speak, the judicial twin brother of the Labour
Board. According to § 137-137_e_, the Court of Arbitration would be a
court of the first instance, for the settlement of disputes between
employers and workmen. It would be formed by each Labour Chamber out of
its numbers, and would consist of equal numbers of employers and of
workmen. The chair would be taken by the labour councillor or one of his
paid assistants. Equal representation of both classes would be required
when pronouncing decisions. None but relations, employés, and partners
in the business, would be permitted to be present during the
deliberations in support of the disagreeing parties. There would be
right of appeal to the Labour Chamber. The members of this Court of
Arbitration would (like those of the Labour Chamber) (§ 130_a_) receive
daily pay and defrayment of travelling expenses. Such would evidently be
the working out of this system of combined class representation, of
which, indeed, we already have an instance in the industrial courts of
arbitration.
_Labour Chambers._ These would form the foundation stone of the edifice,
and they deserve the special attention of all who wish to know how
Social Democracy means to attain her ends. I give verbatim the clauses
dealing with this: "§ 134. For the representation of the interests of
employers and their workmen, as well as for the support of the Labour
Boards in the exercise of their authority, there shall be appointed from
Oct. 1, 1891, in every Labour Board district, a Labour Chamber, to
consist of not less than 24, and not more than 36 members, according to
the number of different firms established in the district. The number of
members for the separate districts shall be determined by the Imperial
Labour Board. The members of the Labour Chambers shall be elected, the
one half by employers of full age from amongst their numbers, the other
half by workers of full age from amongst their numbers. The election
shall be made on the principle of direct, individual, ballot voting by
both sexes, a simple majority only to decide. Each class shall elect its
own representatives. The mandate of the members of the Labour Chamber
shall last for two years, opening and closing in each case with the
calendar year. Simultaneously with the election of the members of the
Labour Chamber proxies to the number of one-half shall be appointed. The
proxies shall be those candidates who receive the greatest number of
votes next after the elected members. In the case of equal votes lots
shall be drawn. The selection of the polling day, which must be either a
Sunday or festival, shall rest with the Imperial Labour Board, which
shall also lay down the rules of procedure for the election. Employers
and workmen shall be equally represented on the election committees. The
time appointed for taking the votes shall be fixed in such a manner that
both day and night shifts may be able to go to the poll. § 135. Besides
fulfilling the functions assigned to them in §§ 106_a_, 110 and 121, the
Labour Chambers shall support the Labour Boards by advice and active
help in all questions touching the industrial life of their district. It
shall be their special duty to make enquiry into the carrying out of
commercial and shipping contracts; into customs, taxes, duties, and into
the rate of wage, price of provisions, rent, competitive relations,
educational and industrial establishments, collections of models and
patterns, condition of dwellings, and into the health and mortality of
the working population. They shall bring before the courts all
complaints as to the conditions of industrial life, and they shall give
opinion on all measures and legal proposals affecting industrial life in
their district. Finally, they shall be courts of appeal against the
decisions of the Courts of Arbitration. § 136. The president of the
Labour Chamber shall be the labour councillor, or failing him, one of
his paid officials. The president shall have no vote, except in cases in
which the Labour Chamber is giving decision as a court of appeal against
the decision of the Court of Arbitration. Equality of voting shall be
counted as a negative. The president shall be bound to summon the Labour
Chamber at least once a month, and also when required on the motion of
at least one-third of the members of the Chamber. The Labour Chambers
shall lay down their own working rules; their sittings shall be public."
According to § 139 of the motion, the members of the Labour Chambers
shall also be entitled to claim daily pay and defrayment of travelling
expenses.
Such are the Labour Chambers according to the proposals of the Social
Democrats in 1885 and 1890.
It is not without some astonishment that I note the tactical ingenuity
displayed by the party even here. Everything that has anywhere appeared
in literature, in popular representation, in judicial and administrative
organisation, in the way of proposals for the centralisation and
extension of labour intelligence, or of proposals for the representation
of labour in Labour Protection, and in all agencies for the care of
labour,--every scheme that has ever been put forward under different
forms, either purely theoretic or practical, as, _e.g._, "Popular
Industrial Councils," and "Industrial Courts of Arbitration"--is here
used to make a part of a broad bridge, leading across to a "People's
State." Nothing is lacking but the lowest planks, which could not,
however, be dispensed with, a Local Labour Board and a Local Labour
Chamber, as the sub-structure of the District Labour Boards and District
Labour Chambers.
The leaders of Social Democracy in the German Reichstag maintain that
they are willing to join hands with the representatives of the existing
order in their schemes of organisation. We have, therefore, no right to
treat their scheme as consciously revolutionary. But this hardly affects
the question. The question is whether--setting aside altogether the
originators of the plan--such an organisation as that described above
might not in fact readily lend itself as a battering-ram to overthrow
the existing order and realise the aim of Socialism, whether, in fact,
it would not of necessity be so used. This question may well be answered
in the affirmative without casting the slightest reproach at the present
leaders of the party.
The regulating representative organs would have full and comprehensive
authority in all questions of industry, social policy, and health, and
in inspection of dwellings; and the executive organs, even up to the
Imperial Labour Board, might be empowered by the mere alteration of a
few sections of the Bill to exercise the same authority, subject to the
consent of the majority in the National and District Chambers, and
eventually in the Local Chambers.
If these representative and administrative bodies ever came into
existence, they would slowly but surely oust, not only the whole
existing organisation of Chambers of Commerce and Industrial Councils,
but also the Reichstag itself, and the Imperial Government, as well as
the local corporate bodies; they would tear down every part of the
existing social edifice. By the combined action of the Social Democrats
in the Reichstag with the increasingly democratic tendencies of the
local bodies, all this might come to pass in a very short space of time.
I do not forget that the organisation is to be based in the first
instance on equal representation of classes. On the first two, and
eventually on the third, step of the judicial and representative
edifice, as many representatives are given to capital as to labour. In
so far the organisation is a hybrid of Capitalism and Social Democracy.
For the moment, and in the present stage, it is, for this very reason,
of special value to the Social Democrats, as it supplies a method of
completely crippling the forces opposed to them in the existing order.
For it will be sufficient in the day of fulfilment, _i.e._ when all is
ripe for the intended change, to give one shake, so to speak, in order
to burst open the half capitalistic chrysalis, and let the butterfly of
a Social Democratic "People's State" fly out.
The half capitalistic organisation would, I repeat, be of the greatest
value at present, in the early preparatory work of the Social Democrats.
First, because the working class would become practically and thoroughly
accustomed to co-operation instead of to subordination as hitherto;
this is the transition step which cannot be avoided, to the supremacy of
the working class over the employers' class. Then, too, the proposed
organisation would offer an excellent opportunity for passing through
the transition step by step, by the continued weakening of the
capitalist order of society in all its joints. The struggle with capital
would have the sanction and the organised force of legislation. It would
receive legal organisation, and would even be legally enjoined. This
legalised battle would proceed over the whole circuit of industrial
activity, including trade and transport, and including also the state
regulated portion of it.
In addition to this the organisation would be peculiarly fitted to
cripple even the least objectionable bulwarks of capital, even the
altogether unbiassed and nonpartisan operation of the local and
district, and probably even ultimately of the imperial courts.
The apparently equal coupling of the influence of both classes would
lead to the result that the class which had the more energetic
representatives and the slighter interest in the maintenance of the
"working rules" would be able at any moment and at any point in the
national industrial life, to bring everything to a deadlock. The labour
councillor would be dependent on the Labour Chambers, and they in turn
would be entirely dependent on the leaders of labour. By the provision
that the president shall have no vote, and a tie in voting shall
therefore count as a defeat, the workmen's electorate hold in their
hands the power to obstruct at will any resolution, and especially to
obstruct the issue of the working rules in any business, since the
rules must be submitted to the approval of the Labour Chambers.
The function of "supporting the Labour Boards by advice and active help
in all questions touching the industrial life of their district," might
very easily, by virtue of the above provision, be so abused by the
Labour Chambers as to deprive individual industrial inspectors of all
possibility of just and independent action, and hence by degrees to
entirely cripple and destroy the value of the inspectorate as a whole;
there can, I think be no doubt that before very long these powers would
intentionally be used for this purpose.
The action of a positive Social policy would be hopelessly crippled by
an equally balanced class representation, while at the same time the
existing order of industrial life would be disturbed and shaken down to
the very last and smallest branches of industry.
Nor would this be all, for such an organisation would secure fixed
salaries for the staff of agitators in the Labour party, since the
representatives would receive daily pay and defrayment of travelling
expenses from the Imperial exchequer. Debates and discussions might be
carried on without intermission, the pay continuing all the time, for
each Labour Chamber would be convened, not only once a month, but also
at any time at the request of one-third of the members of the Labour
Chamber, therefore of two-thirds of the labour representatives in the
chamber. By virtue of the provision which gives them unlimited right of
intervention, pretexts for convening frequent meetings would never be
wanting.
Hence it is evident that no more effectual machinery could be devised
for the legal preparation for leading up the existing social order
directly to the threshold of the "People's State." The attempt to
convert the hybrid Capitalist-Socialist state to a pure Socialist state
would be a perfectly simple matter, both in the Empire, the provinces,
and the local districts, as soon as we had allowed Social Democracy one
or two decades in which to turn the two-fold class representation to
their own ends. By a single successful revolutionary "_coup_" in the
chief city of the Empire, or in the chief cities of several countries
simultaneously, representation of capital in the Labour Courts might be
thrown overboard, and the "People's State" would be ready; the
parliament of a purely popular government would hold the field, and the
present representation of the nation which includes all classes and
watches over the spiritual and material interests of the whole nation,
might without difficulty be swept away from Empire, province, district
and municipality.
The construction of a complete system of "collective" production would
be easy, for it would find the framework ready to its hand, complete
from base to summit, fully mapped out on the plan.
Perhaps the leaders themselves are not fully conscious of the lengths to
which their proposed organisation may carry them. One can quite
understand how from their standpoint they fail to see the end. They have
pursued the path that seemed the most likely to lead to their goal of a
radical change of the existing social order. The whole responsibility
will rest with the parties in power, if they do more than hold out their
little finger, which they have already done, to help Social Democracy
along this path of organisation.
CHAPTER XII.
FURTHER DEVELOPMENT OF PROTECTIVE ORGANISATION.
In spite of all that can be urged against them, however, we may gather
much, not merely negative, but also positive, knowledge from the
proposals of Social Democracy. An organisation which shall be equipped
with full authority, which shall be independent, complete in all its
parts, which shall prevail uniformly and equally over the whole nation;
an organisation which shall avoid the disintegration of collective aids
to labour, which shall encourage industrial representation and prevent
the division of authority amongst many different courts: such is the
root idea of the proposal, and this idea is just, however unacceptable
may appear to us the form in which it is clothed in the Auer Motion.
Nothing is omitted in the Auer Motion except the assignment of their
various duties to the various branches of the territorial representative
bodies, and the working out of an elementary local organisation. I shall
therefore try to work out the idea into a legitimate and possible form
of development. In order to do this I must distinguish between the
organisation required for executive and for representative bodies.
As regards the executive organs, neither in Germany nor elsewhere is
the industrial inspectorate at present furnished with a sufficient
number of paid head-inspectors and sub-inspectors. Scarcely any of the
sub-inspectors are drawn from the labouring class except in the case of
England. Industrial inspection in Germany has not yet attained uniform
extension over the whole Empire. The inspectors of the different
provinces, and the chief provincial inspectors of the whole Empire
require to be brought into regular communication with each other and
with a Central Bureau adapted for all forms of aid to labour, including
Labour Protection--an organ which of course must not interfere with the
imperial, constitutional, and administrative independence of the States
of the _Bund_. If the individual inspectors were everywhere carefully
chosen, the assembling of all inspectors for deliberation with the
Provincial and Imperial Central Bureaux of Labour Protection would in
nowise retard, but on the contrary would serve to promote the complete
and equitable administration of Labour Protection and all forms of aid
to labour. This is the really fruitful germ contained in the idea of an
"Imperial Labour Board."
A Provincial Labour Board might effect much in the same direction. We
are not without the beginnings of a uniform constitution of this kind:
England has an Inspector-General, Austria a Central Inspector; in
Switzerland the inspectors hold regular conferences; in France a
comprehensive scheme of inspectoral combination is projected.
The choice of persons as head and sub-inspectors, which is a matter of
such great importance, might be subject to nomination by the united
provincial inspectorate, coupled with instructions to direct particular
attention to the selection of persons of practical experience, without
social bias, well versed in knowledge of technical and hygienic matters,
and suited to the special needs of the several posts.
But the mere development of the inspectorate would not be the only step
in the progress of the organisation of Labour Protection. We must go
much further than this. The combined interests of economy, simplicity,
efficiency, and permanence of service, point to the necessity of
relieving as far as possible the regular governmental courts of the
Empire, of the province, and of the municipality, of the extra burden of
judicial and police administration involved in special branches of
Labour Protection, and in all other special forms of aid to labour. The
same considerations involve the necessity of gradually developing a
better organisation of associated labour boards, an imperial board, and
provincial, district, and municipal boards. We should thus get rid of
the present confusion of divided authority without entirely depriving
Labour Protection, both individual and general, of the assistance of the
ordinary administrative courts. This is the task that I have repeatedly
insisted upon as imperatively requiring to be taken in hand in connexion
with Labour Insurance. The Auer Motion attempts to meet this necessity.
Much also that is very just and very practical is contained in the idea
of extending the sphere of operations of the Imperial Labour Board and
of the District Boards so as to embrace not only Labour Protection but
every form of aid to labour. Complaint is made that the organisation of
Labour Insurance, in spite of all caution, has frequently proved a
unpractical and costly piece of patchwork administration. Would it not
then be more to the point, and would it not more easily fulfil the
object of Labour Insurance and Labour Protection, and later on also of
dwelling reform, inspection of work, etc., to create municipal district
and provincial boards, with a great Imperial Central Bureau at the head?
In order that each special branch of protection might receive proper
attention, care would have to be taken in appointing to the offices of
the collective organ, to insure the inclusion of the technical,
juristic, police, hygienic, and statistic elements, and it would be
necessary to group these elements into sections without destroying the
unity of the service. There would be no lack of material, and it would
not be difficult to secure a good, efficient, and economical working
staff.
No less reasonable is the idea of a "guild" of the eldest in the trade,
or of a factory committee for the several large works with
representation of both classes to appoint the district, provincial, and
imperial labour councils. So far from being extreme in this respect, the
Auer Motion is rather to be reproached with incompleteness, and a lack
of provision for local Labour Councils and Labour Chambers, a point
which we have already mentioned. But the representative bodies would
have a significance extending far beyond the limits of Labour
Protection--following the example of Switzerland the _von Berlepsch_
Bill admits factory labour-committees for dealing with matters
concerning the factory working rules--they would be agencies for the
care of labour, for the insurance of social peace, the protection of
morality, the settlement of disputes and the maintenance of order in the
factory, for the instruction and discipline of apprentices, for the
control of the administration of protective legislation, for dealing
with the wage question, in a word for softening the severe autocracy of
the employers and their managers by the co-operation and advice of the
workers. And in this case I have nothing further to add to what I have
already said on the matter in a former article.
But the supporter of even the most comprehensive scheme of labour
representation does not stand committed to any such system of
parliamentary management of industry by democratic majority as is
proposed in the Auer Motion. The appointment and the working of the
Labour Councils and Labour Chambers seems to me to introduce quite
another element into the scheme.
The regular, not merely the accidental and occasional, meeting of the
inspectors with the body of employers and workers is a recognised
practical necessity; a less bureaucratic system of industrial management
is demanded on all sides. Regularly appointed ordinary and special
meetings with the Labour Chambers would no doubt accomplish much. The
inspector ought to be accessible to the expression of all wishes,
advice, and complaints; but, on the other hand, he should not yield
blind obedience to the rulings and representations of such organs. The
industrial inspector must be, and must remain, an officer of the State,
capable of acting independently of either class, appointed by
government; only under these circumstances can he perform the duties of
his office with firmness and impartial justice; in his appointment, in
his salary, and in the exercise of his official duties he should be
furnished with every guarantee to insure the independence of his
judgment. It is nowise incompatible with this that he should be open to
receive representations, whether in the way of advice, information, or
complaint. The more he lays himself open to such in the natural course
of work, the more important will his duties and position become, both on
his circuits and in his office. The right of appeal to higher courts can
always be secured to the Labour Chambers in cases of complaint. But how
should representative bodies of this kind be formed?
In answering this question care must be taken above all not to confound
such public Labour Chambers as are suggested in the Auer proposals with
voluntary joint committees of both classes. Each of these representative
organs requires its own special constitution.
The voluntary unions appoint committees for the security of class
interests, and especially for the purpose of making agreements as to
conditions of work. The election of these representative bodies ought to
be made by both classes with unrestricted equal eligibility of all,
including the female, members of any union, and without predominance of
one class over the other, or of any section of one class.
I have already in a former article (see also above, Chap. V.) laid
great stress upon the development of this voluntary or conciliatory
representation of both classes as a means of union which can never be
replaced by the other or legal form of representation.
The need for a representative system in the organs of the different
forms of state-aid to labour is quite another matter.
Their tasks require special, public, legalised representation, with
essentially only the right of deliberation; but they may also decide by
a majority of votes questions which lie within the sphere of their
competence.
As regards this public representation, it seems to me that joint
appointment by direct choice of all the individuals in both classes, and
out of either class, tends to the preservation of class enmity rather
than to the mutual conciliation of the two classes and to the promotion
of their wholesome joint influence on the boards. This kind of
appointment might be dispensed with by limiting direct election as far
as possible to the appointment of the elementary organs of
representation; but for the rest by drawing the already existing
authorities of a corporate kind into the formation of the system of
general representation. Herein I refer to such already existing organs
as those of labour insurance, Chambers of Commerce and Industrial
guilds, railway boards, local and parliamentary representatives; and
other elementary forms of corporate action might also be pressed into
the service. A thoroughly serviceable, fully accredited _personnel_
would thus be secured for all Labour Boards.
This system might even be applied to the election or appointment by lot
of the Industrial Court of Arbitration. If the Labour Chambers were
corporate bodies really representative of the trade, then the Industrial
Courts of Arbitration, both provincial and local, might be constituted
as thoroughly trustworthy public organs--without great expense, free
from judicial interference, competent as courts of the first and second
instance, and not in any way dependent on the communal
authorities--either freely elected by the managers of the workmen's
clubs and the employers' boards or companies, or chosen by lot from the
_personnel_ of the already existing corporate institutions above
referred to. The system of direct election by the votes of all the
individual workers and employers would thus be avoided, and, more
important still, this method would meet the difficulty which proved the
crux of the whole question when the organisation of Industrial Courts of
Arbitration was discussed in the last Reichstag: the distinction between
young persons and adults would not enter into consideration, either in
the case of Labour Chambers or of the Courts of Arbitration proceeding
therefrom.
There would be no need, under this system, that electors of either class
should be required to limit their choice of representatives to members
of their own class. Each body of electors would be free to fix their
choice on the men who possessed their confidence, wherever such might be
found. This would further help to stamp out the antagonisms which are
excited by the separate corporate representation of both classes. Men
would be appointed who would need no special protection against
dismissal. But the representatives of the workers when chosen out of the
midst of the working electorate might still receive daily pay and
defrayment of travelling expenses. If this were entered to the account
of the unions which direct the election through members of the managing
committee, and if charged _pro rata_ of the electors appointed, a
sufficient safeguard would be provided against the temptation to
protract the sessions or to bribe professional electors.
The foregoing sketch of the executive and representative development of
the organisation of Labour Protection in the direction of united,
simple, uniform, specialized organisation of the whole aggregate of aids
to labour, ought at least to deserve some attention.
Provided that the upward progress of our civilisation continues
generally, this quite modern, hitherto unheard of, development of boards
and representative bodies, even if only brought about piecemeal, will
eventually be brought to completion, and will effect appreciable results
in the State and in society. Some of the best forms of special boards,
_i.e._ special representative bodies are already making their
appearance, _e.g._ the "Labour Secrétariats" in Switzerland, the
American "Boards of Labour," and the Russian "Factory Courts" under the
governments of St. Petersburg, Moscow, and Vladimir (Act of June 23,
1868).
CHAPTER XIII.
INTERNATIONAL LABOUR PROTECTION.
Years and years elapsed before the first supporters of international
protection received any recognition. Then immediately before the
assembling of the Berlin Conference, the idea began to take an enormous
hold on the public mind. Switzerland demanded a conference on the
subject. Prince Bismark refused it. The Emperor William II. made an
attempt towards it by summoning an international convention to discuss
questions of Labour Protection.
The inner springs of the movement for international Labour Protection
are not, and have not been, the same everywhere.
With some it is motived by the desire to secure for wage labour in all
"Christian" States conditions compatible with human dignity and
self-respect. This was the basis of the Pope's negotiations with the
labour parties and with certain of the more high-minded sovereigns and
princes. Others demand it in the combined interests of international
equilibrium of competition and of Labour Protection, believing that
these two may be brought into harmony by the international process,
since if industry were equally weighted everywhere, and the costs of
production, therefore, approximately the same everywhere, protected
nations would not suffer in the world's markets. The first, the more
"idealist" motive prevails most strongly among Catholics, and contains
no doubt a deeper motive--namely, the preservation of the social
influence of the Church. At the International Catholic Economic Congress
at Suttich, in September, 1890, this view prevailed, with the support of
the English and Germans, against the opposition of the Belgians and
French.
The light in which international Labour Protection is viewed depends
upon whether the one or the other motive prevails, or whether both are
working together.
Two results are possible. Either limits will be set to the right of
restricting protection of employment and protection in occupation by
means of universal international legislation, or the interchange of
moral influence between the various governments will be brought about by
means of periodical Labour Protection Conferences and through the Press,
which on the one hand would promote this interchange of influence, and
on the other hand would, uniformly for all nations, demand and encourage
the popular support of all protective efforts outside the limits of the
State.
Before the Berlin Conference it was by no means clear what was expected
of international Labour Protection. Since the Conference it has been
perfectly clear, and this alone is an important result.
The international settlement which Prince Bismark had opposed ten years
before did not meet with even timid support at the Berlin Conference.
England and France were the strongest opponents of the idea of the
control of international protective legislation. This can be proved from
the reports of the Berlin Conference.
The representative of Switzerland, H. Blumer, in the session of March
26, 1890, made a proposal, which was drawn up as follows:--
"Measures should be taken in view of carrying out the provisions adopted
by the Conference.
"It may be foreseen on this point that the States which have arrived at
an agreement on certain measures, will conclude an obligatory
arrangement; that the carrying out of such arrangement will take place
by national legislation, and that if this legislation is not sufficient
it will have to receive the necessary additions.
"It is also safe to predict the creation of a special organ for
centralizing the information furnished, for the regular publication of
statistical returns, and the execution of preparatory measures for the
conferences anticipated in paragraph 2 of the programme.
"Periodical conferences of delegates of the different governments may be
anticipated. The principal task of these conferences will be to develop
the arrangements agreed on and to solve the questions giving rise to
difficulty or opposition."
Immediately upon the opening of the discussion on this motion, the
delegates from Great Britain moved the rejection of the proposal of
Switzerland, "since, in their opinion, an International Convention on
this matter could not supply the place of special legislation in any one
country. The United Kingdom had only consented to take part in the
Conference on the understanding that no such idea should be entertained.
Even if English statesmen had the wish to contract international
obligations with respect to the regulation of factory labour, they would
have no power to do so. It is not within their competence to make the
industrial laws of their country in any way dependent on a foreign
power." The Austrian delegate suggested that it be made quite clear
"that the superintendence of the carrying out of the measures taken to
realise the proposals of the Conference is exclusively reserved to the
Governments of the States, and that no interference of a foreign power
is permitted." The Belgian delegate "considers it advisable, in order
that the deliberations of the Conference may keep their true character,
not to employ the word 'proposals,' but to substitute for it 'wishes,'
or 'labours.'" M. Jules Simon, the French delegate, states that he and
his colleagues have received instructions which "forbid them to endorse
any resolution which either directly or indirectly would appear to give
immediate executive force to the other resolutions formulated by the
Conference." And M. Tolain adds that "it is true that the French
Government had always considered the meeting of the Conference
exclusively as a means of enquiring into the condition of labour in the
States concerned, and into the state of opinion in respect to it, but
that they by no means intended to make it, at any rate for the present,
the point of departure for international engagements."
The idea of an international code of Labour Protection could not have
been more flatly rejected. Hence the opposition to the idea manifested
by Prince Bismark was fully borne out by the Conference. This opposition
has everything in its favour, for it is clear that a uniform
international code of Labour Protection would supply boundless
opportunities for friction and for stirring up international commercial
quarrels. If it were desired to establish Labour Protection guaranteed
by international agreement, it would be found that there would be as
many disturbances of international peace as there are different kinds of
industry, nay, I will even say, as there are workmen. The countries
whose administration was best and most complete would be the very ones
that would be most handicapped: seeing that they could expect only a
very minimum of real reciprocity from those other contracting powers
whose administration was faulty, and where a strong national sentiment
was lacking in the workers, owing to their miserable and penurious
condition in the absence of effective protection for labour. Accurately
to supervise the observance of such an international agreement we should
require an amount of organisation which it is quite beyond our power to
supply. But even on paper, international labour legislation has no
significance beyond that of creating international discontent and
agitation, and of supplying political animosity with inexhaustible
materials for arousing international jealousy. The Berlin Conference has
negatively produced a favourable effect by the protest of England and
France, if one reflects how fiercely the scepticism of Bismark's policy
was attacked before the meeting of the Conference. Repeated readings of
the reports of the Conference have confirmed me in the impression that
Prince Bismark was fully upheld by the Conference in his opposition to
the establishment of Labour Protection by international agreement. But I
have felt it necessary to clearly establish the grounds on which the
opposition to this form of protection is based.
The moral influence of the international Conference, however, has been
on the other hand something more than "vain beating the air." This is
already shown in the increased impetus given to the improvement of
national labour-protective legislation.
The conclusions arrived at by the Conference as to the international
furtherance of Labour Protection are, it is true, of the nature of
recommendations merely, and are in nowise binding on the governmental
codes of each country. But even as recommendations they are practically
of the greatest value. None of the nations represented will venture, I
think, to disregard the force of their moral influence. All the means
recommended by the Conference have promise of more or less success. Some
of the proposals, for instance, are: the repetition of international
Labour Protection Conferences, the appointment of a general, adequate,
and fully qualified industrial inspectorate, the international
interchange of inspectors reports, the uniform preparation of statistics
on all matters of protection, the international interchange of such
statistics, and of all protective enactments issued either legislatively
or administratively.[15]
But what of the proposal for the appointment of an international
commission for the collection and compilation of statistics and
legislative materials, for the publication of these materials, and for
summoning Labour Protection Conferences, and the like? And what would
this proposal involve?
None of the objections which can be urged against the enforcement of an
international code of Labour Protection would apply to this. The
commission would be well fitted to help forward the international
development, on _uniform lines_, of labour protective legislation,
without in any way fettering national independence. Its moral influence
would be of great international value.
What it would involve is also easy to determine. Such a commission would
be an international administrative organ for the spread and development
of Labour Protection on uniform lines in all countries; a provision by
International Law for the enforcement of the international moral
obligations arising out of protective right.
That is really what the Labour Protection Conferences would be if they
met periodically as suggested At the Berlin Conference this at least was
felt when it was said that the Conference was indeed less than a
treaty-making Congress, but more than a scientific Congress.
"International Conferences may be divided into two categories. In the
first the Plenipotentiaries of different States have to conclude
Treaties, either political or economic, the execution of which is
guaranteed by the principles of international law; to the second
category belong those Conferences whose members have no actual powers,
and give their attention to the scientific study of the questions
submitted to them, rather than to their practical and immediate
solution. Our Conference, from the nature of its programme, and the
attitude of some of the States good enough to take part in it, has a
character of its own, for it cannot pass Resolutions binding on the
Governments, nor may it restrict itself to studying the scientific sides
of the problems submitted to its examination. It could not aspire to the
first of these parts; it could not rest content with the second. The
considerations which have been admitted in the Commissions relative to
all the questions contained in the programme have been inspired by the
desire of showing the working population that their lot occupies a high
place in the attention of the different Governments; but these
considerations have had necessarily to bend to others which we cannot
put aside. In the first place, there was the wish to unite all the
States represented at the Conference in the same sentiment of devotion
to the most numerous and the most interesting portion of society. It
would have been grievous not to arrive at the promulgation of general
principles, by means of which the solution of the most important half of
the social problem should be attempted. It was evidently not possible to
arrive at once at an agreement on all its details. But it was necessary
to show the world that all the States taking part in the Conference
were met in the same motives of humanity."
The proposal of a commission for summoning repeated conferences,
international, uniform gatherings of representatives of all
non-governmental agencies of Labour Protection, for the purpose of
dealing uniformly with the requirements of a progressive policy in
national labour-protective legislation, was a summing up of the demands
urged by the Conference for a strong, international, administrative
organisation for the furtherance of Labour Protection by the
international exchange of moral persuasion, but without the enforcement
of a code of international application.
From a scientific point of view it is of the highest interest to observe
how international right, and even to some extent an international
administrative right, is here breaking out in an entirely new direction.
Treaties between two or more, or all, civilized States have hitherto
mainly been treaties for combined action in certain eventualities
(treaties of alliance), or territorial treaties for defining spheres of
influence. Or else they have been treaties for the reciprocal treatment
of persons or of goods passing between or remaining in the territories
of the respective contracting States: migration treaties, commercial
treaties, treaties concerning pauper aliens, tariff treaties and other
treaties. Or they have been treaties for the prevention of the spread of
infectious diseases. The exercise of international activity in the
creation, development, and regulation of an international uniform Social
Policy would be quite a new departure. Probably the idea of Switzerland
has not been thrown out altogether in vain.
FOOTNOTE:
[15] Proposals VI., I_a-d_, and II. I_c_ is as follows: "All the
respective States, following certain rules, for which an understanding
will have to be arrived at, will proceed periodically to publish
statistical reports with respect to the questions included in the
proposals of the Conference."
CHAPTER XIV.
THE AIM AND JUSTIFICATION OF LABOUR PROTECTION.
The aim and justification of Labour Protection have I think become
sufficiently clear in the course of our inquiry. It is now only
necessary to recapitulate.
Labour Protection, especially protection by limitation of employment,
and protection in occupation, is first and foremost the social care of
the present and of all future generations, security against neglect of
their spiritual, physical, and family life through the unscrupulous
exploitation of wage-labour. Hence Labour Protection is indirectly
protection also of the capitalist classes of the future, and therefore
far from being unjust, it even acts in the highest interests of that
part of the nation which by virtue of the fact of property or ownership
is not in need of any special Labour Protection.
In fulfilling its purpose, Labour Protection even goes beyond the work
of upholding and strengthening national labour, when it takes the form
of internationally uniform Labour Protection such as was lately
projected at the Berlin Conference, and such as is becoming more and
more the goal of our efforts.
This international Labour Protection is a universal demand of humanity,
morality and religion, especially from the standpoint of the Church,
like that of international protection of all nations against slavery,
but it is also no doubt demanded in the interests of international
equilibrium of competition.
The aim of Labour Protection for the worker individually lies far beyond
mere industrial protection. Protection of labour extends to the person
of individual labourers and their freedom as regards religious
education, instruction, learning, and teaching, social intercourse,
morality and health, and especially does it afford to every man security
of family life.
In this social and individual aim lies its justification, subject to
certain conditions. These conditions we have already examined.
The first condition is, that special protection shall only be used to
guard against distinct dangers arising out of employment in service.
Next, Labour Protection is only justified in dealing with such dangers
as cannot or can no longer be adequately guarded against by any or all
of the old forms of protection, viz., self-help, family protection,
private agencies and non-governmental corporate agencies, or the
protection of the regular administrative and judicial authorities, and
even with such dangers only so far as is absolutely necessary. And
lastly, the extraordinary State protection contained in the several
labour-protective enactments must be adapted to the suppression of such
dangers altogether.
Bearing in mind these conditions, it will be found on examination of the
several measures of Labour Protection, as they appear in the resolutions
of the Berlin Conference and in the _von Berlepsch_ Bill, that not one
of them oversteps these limits. The labour protective code as already
existing, and as projected by government, nowhere stretches its
authority beyond the specified point, either in its scope, extension or
organisation; at present it rather errs on the side of caution, and in
many respects it does not go nearly so far as it might. This also I
claim to have shown in the foregoing pages. This fact alone fully
justifies the policy of Labour Protection as at present projected by the
German government.
It is in nowise intended (as shown in Chaps. IV. to X.) by this
protective policy to supplant and replace free self-protection and
mutual protection, or the ordinary State protection of common law.
No addition to Labour Protection will be permitted except where special
need exists.
In no case shall a larger measure of protection be afforded than
necessary. There is no question of treating all and everywhere alike the
various classes of industrial wage-labour needing protection. But rather
that complete elasticity of treatment is accorded, which is required in
view of the variety of needs for protection and of the different degrees
of difficulty of applying it; it is this variety which necessitates
extraordinary State intervention, extraordinary alike in scope, basis
and organisation.
Labour Protection has not, it is true, by any means reached its full
development either in aim and scope or in organisation. None of those
further demands, however, from various quarters, which I have treated in
this book as within the range of discussion overstep in any essential
degree the limits imposed on Labour Protection, regarded as special and
supplementary intervention of the State.
Even the Auer Motion when carefully examined--if we set aside the
general eight hours day and certain special features of organisation, in
particular its claim to include in its scope the whole of industry--is
not really as extravagant as it appears at first sight; for although
indeed it demands complete Labour Protection for all kinds of industrial
work, it requires only the application of the same special measures as
are also demanded in other quarters, and as I have shown to be
justified, except in a few special cases where it calls for more drastic
measures.
We have seen also that the policy of Labour Protection does not involve
a kind of State intervention hitherto unknown. The State has long
afforded regular administrative and judicial protection to the work of
industrial wage-service, and has even interfered in a special manner in
the case of children, young men, young women and adult women; and for
still longer in the case of adult men, by affording protection in the
way of limitation of employment, truck protection and protection in
occupation, and by affording protection of contract through the
Industrial Regulations, applied to non-factory as well as to factory
labour. The application of protection by limitation of employment is
thus far from being the first exercise of State interference with the
hitherto unrestricted freedom of contract. Nothing will be found in the
developments of protection here dealt with, that has not long ago been
demanded and granted elsewhere, chiefly in England, Austria and
Switzerland.
The economic burden imposed upon the nation by Labour Protection, when
compared with that of Labour Insurance, which we have already, will be
found to be comparatively small. Those measures which call for the
greater sacrifices--protection of married women, and regulation of the
factory ten hours working-day--are recommended on all sides by way of
international uniform regulations.
Freedom of contract will not be impaired, since such adults as are
included under Labour Protection stand in special need of protection,
and are as incapable of self-defence as minors in common law; we have
discussed and proved this contention point by point. This will certainly
soon be recognised generally, even by England and Belgium, whose
representatives at the Berlin Conference laid such stress on freedom of
contract for adults.
An international and internationally administered code for the whole of
Labour Protection is strictly to be avoided.
The wider measures of Labour Protection demanded by the Berlin
Conference, and the _von Berlepsch_ Bill,[16] I conclude therefore to be
nothing more than a fully justifiable and harmless corollary and
supplement to the Social Policy of the Emperor William II. and of Prince
Bismark.
By following in the paths already trodden without ill results by
separate countries, long ago by some, only lately by others, in paths
therefore which have to a certain degree been explored, this policy will
need to be subjected to fewer alterations than that great and noble
policy of Labour Insurance which has struck out in entirely new paths,
and too often worked in consequence by somewhat unpractical methods.
FOOTNOTE:
[16] See Appendix.
APPENDIX.
INDUSTRIAL CODE AMENDMENT BILL (GERMANY).
[_June 1st, 1891_].
We, William, by the grace of God Emperor of Germany, etc., decree
in the name of the Empire, by and with the consent of the Federal
Council and Reichstag, as follows:--
_Article I._
After § 41 of the Industrial Code shall be inserted:
§ 41_a_.
Where, in accordance with the provisions of §§ 105_b_ to 105_h_,
employment of assistants, apprentices and workmen is prohibited in any
trading industry on Sundays and holidays, no industrial business shall
be carried on on those days in public sale-rooms.
This provision shall not preclude further restrictions by common law of
industrial business on Sundays and holidays.
_Article II._
After § 55 of the Industrial Code shall be inserted.
§ 55_a_.
On Sundays and holidays (§ 105_a_, 2) all itinerant industrial business,
so far as it is included in § 55 (1) 1-3, shall be prohibited, as well
as the industrial business of the persons specified in § 42_b_.
Exceptions may be allowed by the lower administrative authorities. The
Federal Council is empowered to issue directions as to the terms and
conditions on which exceptions may be allowed.
_Article III._
Chapter VII. of the Industrial Code shall be amended as follows:--
CHAPTER VII.
Industrial workers (journeymen, assistants, apprentices, managers,
foremen, mechanics, factory workers).
I. GENERAL RELATIONS.
§ 105.
The settlement of relations between independent industrial employers and
workers shall be left to voluntary agreement, subject to the
restrictions laid down by imperial legislation.
§ 105_a_.
Employers cannot oblige their work people to work on Sundays or
holidays.
This, however, does not apply to certain kinds of work mentioned further
on. Holidays are determined by the State Governments in accordance with
local customs and religious belief.
§ 105_b_.
There shall be no work on Sundays and holidays in mines, salines,
smelting works, quarries, foundries, factories, workshops, carpenters'
yards, masons' and shipbuilders' yards, brick-fields, and buildings of
any kind.
For every Sunday and holiday the workpeople of such establishments must
be allowed a rest of at least 24 hours, for two consecutive holdings of
36 hours; and for Christmas, Easter and Whitsuntide of 48 hours. The
period of rest must be counted from midnight, and in the case of two
consecutive holidays must last till 6 p.m. of the second day. In
establishments where regular day and night gangs are employed, the
period of rest may commence at any time between 6 p.m. of the preceding
week-day and 6 a.m. of the Sunday or holiday, provided that the work is
completely suspended for 24 hours from such commencement.
The assistants, apprentices and workpeople in small trades and
handicrafts must not be employed on Christmas Day, Easter Sunday and
Whit Sunday; on other Sundays and holidays they must not be employed for
more than five hours.
By statutory regulation of the parish or municipal authorities, such
Sunday work can be further restricted or entirely prohibited for
particular branches of trade. For the last four weeks before Christmas,
and for particular Sundays and holidays, which, owing to local
conditions call for greater activity in trades, the police authorities
may order an extension of the hours of work up to ten. The hours of work
must be so fixed as to admit of attendance at Divine worship. The hours
may be variously fixed for the different branches of trading industry.
§ 105_c_.
The provisions of 105_b_ do not apply:
1. To work which must be carried on without delay in cases of
necessity and in the public interest;
2. To the work of keeping the legally prescribed register of Sunday
labour;
3. To the work of watching, cleaning and repairing the workshops,
required for the regular continuance of the main business or of
some other business, nor to any work on which depends the
resumption of the full daily working of the business, wherever such
work cannot be carried on during working days;
4. To such work as may be necessary in order to protect from damage
raw materials or the produce of work, wherever such cannot be
carried on during working days;
5. To the supervision of such work as is carried on on Sundays and
holidays, in accordance with the provisions of clauses 1 to 4.
Employers must keep an accurate register of the workmen so employed on
each Sunday and holiday, stating their number, and the hours and nature
of the work. The register must be produced for examination at any time
at the request of the local police authorities or of the official
specified in § 139_b_.
If the Sunday employment exceeds three hours, or prevents the workpeople
from attending Divine worship, a rest of 36 hours must be given to such
workpeople every third Sunday, or they must be free every second Sunday
from 6 a.m. to 6 p.m.
Exceptions to the above may be allowed by the lower administrative
authorities, provided that the workpeople are not prevented from
attending Divine worship on Sundays, and that a rest of 24 hours is
granted to then on a week-day in lieu of Sunday.
§ 105_d_.
The Federal Council may make further exceptions to the provisions of §
105_b_, 1 in certain defined industries, especially in the case of
operations which do not admit of delay or interruption, or which are
limited by natural causes to certain times and seasons, or the nature of
which necessitates increased activity at certain times of the year. The
regulation of the work permitted in such business on Sundays and
holidays, and the regulation of the conditions on which such work shall
be permitted, shall be uniform for all business of the same kind, and
shall be in accordance with the provision of § 105_c_, 3.
The regulations laid down by the Federal Council shall be published in
the _Imperial Law Gazette_, and shall be laid before the Reichstag at
the next session.
§ 105_e_.
Exceptions to the restrictions of work on Sundays and holidays may also
be made by the higher administrative authorities in trades which supply
the daily necessaries of life to the public, and in those that require
increased activity on those days; also in establishments the working of
which depends upon the wind or upon the irregular action of water power.
The regulation of these exceptions shall be subject to the provision of
§ 105_c_, 3.
The procedure on application for permission of exceptions in the case of
establishments employing machinery worked wholly or mainly by wind or by
the irregular action of water power, shall be subject to the enactments
of §§ 20 and 21.
§ 105_f_.
In order to prevent a disproportionate loss or to meet an unforeseen
necessity, the lower administrative authorities may also allow
exceptions for a specified time to the provision of § 105_b_, 1.
The orders of the lower administrative authorities shall be issued in
writing, and must be produced by the employer for examination in the
office of the business at the request of the official appointed for the
revision. A copy of the orders shall be hung up inside the place of
business in some spot easily accessible to the workers.
The lower administrative authorities shall draw up a register of the
exceptions granted by them, in which shall be entered the name of the
firm, the kind of work permitted, the number of workers employed in the
business, and the number required for such Sunday or holiday labour,
also the duration of such employment and the grounds on which it is
permitted.
§ 105_g_.
The prohibition of Sunday work may be extended by Imperial Ordinance,
with consent of the Federal Council, to other trades besides those
mentioned in the Act. These ordinances shall be laid before the
Reichstag at the next session. The provisions of §§ 105_c_ to 105_f_
shall apply to the exceptions to be permitted to such prohibition.
§ 105_h_.
The provisions of §§ 135_a_ to 105_g_ do not preclude further
restrictions by common law of work on Sundays and holidays.
The Central Provincial Court shall be empowered to permit departures
from the provisions of § 105_b_, 1, for special holidays which do not
fall upon a Sunday. The provision does not apply to Christmas, Easter,
Ascension Day or Whitsuntide.
§ 105_i_.
The provisions of §§ 105_a_, 1, 105_b_ to 105_g_ do not apply to public
houses and beerhouses, concerts, spectacles, theatrical
representations, or any kind of entertainment, nor to carrying
industries.
Industrial employers may only exact from their workpeople on Sundays and
holidays such work as admits of no delay or interruption.
§ 106.
Industrial employers who have been deprived of civil rights shall not,
so long as they remain deprived of these rights, undertake the
instruction of workers below 18 years of age.
The police authorities may enforce the dismissal of workers employed in
contravention of the foregoing prohibitions.
§ 107.
Unless special exceptions are made by Imperial Ordinance, persons under
age shall only be employed as workers on condition that they are
furnished with a work register. At the time of engaging such workers,
the employer shall call for the work register. He shall be bound to keep
the same, produce it upon official demand, and return it at the legal
expiration of service relations. It shall be returned to the father or
guardian if demanded by them, or if the worker has not yet completed his
sixteenth year, in other cases it shall be returned to the worker
himself.
With consent of the local authorities of the district specified in §
108, the work register may also be handed over to the mother or other
relation, or directly to the worker himself.
The forgoing provisions do not apply to children who are under
compulsion to attend the national schools.
§ 108.
The work register shall be supplied to the worker by the police
authorities of that district in which he has last made a protracted
stay; but if this was not within the limits of the German Empire, then
it shall be free of costs and stamp duty in any German district chosen
by him. It shall be supplied at the request or with the consent of the
father or guardian; and if the opinion of the father cannot be obtained,
or if the father refuses consent on insufficient grounds, and to the
disadvantage of the worker, the local authorities shall themselves grant
consent.
Before the register is supplied it must be certified that the worker is
no longer under compulsion to attend school, and an affadavit must be
made that no work register has previously been supplied to him.
§ 109.
If the work register is completely filled up, or can no longer be used,
or if it has been lost or destroyed, another work register shall be
supplied in its place by the local authorities of the district in which
the holder of the register has last made a protracted stay. The register
which has been filled up, or which can no longer be used, shall be
closed by an official mark. If the new register is issued in the place
of one which can no longer be used, or which has been lost or destroyed,
the same shall be notified therein. In such case a fee of fifty pfennig
may be charged.
§ 110.
The work register (§ 108) must contain the name of the worker, the
place, year and day of his birth, the name and last residence of his
father or guardian, and the signature of the worker. The register shall
be supplied under seal and signature of the magistrate. The latter shall
draw up a schedule of the work registers supplied by him.
The kind of work registers to be used shall be determined by the
Imperial Chancellor.
§ 111.
On admission of the worker into service relation, the employer shall
enter, in the place provided for that purpose in the register, the date
of admission, and the nature of the employment, and at the end of the
term of service, the date of leaving, and if any change has been made in
the employment, the nature of the last employment.
The entries shall be made in ink, and shall be signed by the employer or
by the business manager authorised thereto by him.
The entries shall contain no mark intended to attribute a favourable or
unfavourable character to the holder of the register.
The entry of a judgment upon the conduct or manner of work of the
worker, and other entries or marks in or on the register for which no
provision is made in this Act, shall not be permitted.
§ 112.
If the work register has been rendered unfit for use by the employer, or
has been lost or destroyed by him, or if signs, entries, and marks have
been made in or on the register, or if the employer refuses without
legal grounds to deliver up the register, the issue of a new register
may be demanded at the cost of the employer.
Any employer who in defiance of his legal obligation has not delivered
up the register in due time, or who has neglected to make the requisite
entries, or who has made illegal signs, entries or marks, may be forced
to compensate the worker. The claim for compensation expires if no
complaint nor remonstrance is made within four weeks.
§ 113.
On quitting service workers may demand a testimonial setting forth the
nature and duration of their employment.
This testimonial may, at request of the workers, bear evidence as to
their conduct and manner of working.
Employers are forbidden to add irrelevant remarks concerning the workmen
other than those required for the purpose of the testimonial.
If the worker is under age, the testimonial may be demanded by the
parent or guardian. They may demand that the testimonial shall be handed
to them and not to the worker. With consent of the local authorities of
the district, specified in § 108, the testimonial may be handed directly
to the worker himself, even against the will of the father or guardian.
§ 114.
At the request of the worker the local police magistrate shall confirm
the entries in the register and in the testimonial handed to the worker,
free of costs and stamp duty.
§ 115.
Industrial employers shall be bound to reckon and pay the wages of the
worker in coin of the realm.
They shall not credit the workers with goods. But they may be permitted
to supply the workers under their care with provisions at cost price,
with dwellings and land at the customary local rate of rent and hire,
with firing, lighting, board, medicines and medical assistance, also
with tools and materials for work, at the average cost price, and to
charge such to their account in payment of wage.
Materials and tools may be supplied for contract work at a higher price,
provided the agreement be made beforehand, and the price do not exceed
the customary local prices.
§ 115_a_.
Wage payment and payments on account shall not be made in public-houses
or beer-houses or sale-rooms, without the consent of the lower
administrative authorities; they shall not be made to a third party on
pretext of legal claims thereto, or on production of documents showing
legal claims, such being legally void under § 2 of the Appropriation of
Work Wage or Service Wage Act of June 21st, 1869 (_Federal Law Gazette_,
p. 242).
§ 116.
Workers whose claims have been dealt with in a manner contrary to § 115
may at any time demand payment in accordance with § 115, and no
objection shall be urged against such claim on the ground that they have
already received something in lieu of payment. The first payment, if it
still remains in the hands of the recipient, or if he is still deriving
advantage therefrom, shall be handed over to the workers' provident
fund, or, in default of such, to such other fund existing in the
locality for the benefit of the workers, as shall be determined by the
local authorities, or, in default of such, to the local poor fund.
§ 117.
Agreements made in contravention of § 115 shall be void.
The same shall apply also to agreements between industrial employers and
their workpeople as to the supply of goods to the latter from certain
shops, and to agreements as to the appropriation of the earnings of the
latter to any other purpose than to contributing to schemes for the
improvement of the condition of the workers or their families.
§ 118.
Claims for goods supplied on credit in contravention of § 115, can
neither be sued for by the creditor, nor charged to account, nor
otherwise made good, whether the transaction was made directly between
the parties, or indirectly. Such claims shall be appropriated to the
funds specified in § 116.
§ 119.
The expression "industrial employers," as used in §§ 115 to 118,
includes members of their families, their assistants, agents, managers,
overseers and foremen, and other directors of industry in whose business
any one of the persons here mentioned directly or indirectly takes part.
§ 119_a_.
Retentions of wage reserved by the employer of industry as security for
compensation for loss arising from illegal dissolution of service
relations, or as a stipulated fine imposed in such a case, shall not
exceed a quarter of the usual wage in single wage payments, and the nett
amount shall not exceed the amount of the average weekly wage.
By statutory provision of a parish or any larger corporate union it may
be determined for all industrial trades, or for certain kinds of the
same:
1. That wage payments and payments on account shall be made at
certain fixed intervals, which shall not be longer than one month,
and not shorter than one week;
2. That the wage earned by workers under age shall be paid to the
parents or guardians, and only with their written consent or
voucher for the receipt of the last wage payment directly to the
young workers themselves;
3. That industrial employers shall give information within certain
fixed periods, to the parents or guardians as to the amount of wage
paid to workers under age.
§ 119_b_.
The workers specified in §§ 115 to 119_a_ include also such persons as
are employed by certain specified industrial employers, outside the work
places of the latter, in the preparation of industrial products, even if
the raw materials and accessories are furnished by the workers
themselves.
§ 120.
Employers of industry shall be bound in the case of workers under
eighteen years of age who attend a place of instruction recognised by
the local authorities or by the State, to grant them for such purpose
the requisite time, to be fixed by the appointed authority. Instruction
shall only take place on Sundays, provided that the hours of instruction
are so fixed that the scholars may not be prevented from attending
Divine Service or any special services appointed by the spiritual
authorities of their respective denominations. Exceptions to this
provision may be granted by the Central Court until October 1, 1894, in
the case of existing educational schools, attendance at which is not
compulsory.
Educational schools, as understood by this provision, include
establishments in which instruction is given in female handiwork and
domestic work.
By statutory provision of a parish or any larger corporate union (§ 142)
obligation may be imposed on male workers under eighteen years of age to
attend an educational school, where such obligation is not imposed by
common law. In the same way necessary provisions may be made for the
enforcement of such obligation. In particular, statutory provisions may
be made to ensure the regular attendance at school of such children as
are under the age of compulsion, and to determine the obligations of the
parents, guardians and employers in this respect, and directions shall
be issued for the insurance of order in the school and of the proper
behaviour of the scholars. Such persons as attend a guild school or
other educational or technical school, shall be released from obligation
imposed by statutory provisions to attend an educational school, where
such guild or other educational or technical schools are recognised by
the higher administrative authorities as fitting substitutes for the
instruction of the general educational schools.
§ 120_a_.
Employers of industry shall be bound so to arrange and maintain their
workrooms, business plant, machines and tools, and so to regulate their
business, that the workers may be protected against dangers to life and
health, so far as the nature of the business may allow.
In particular, attention shall be paid to the supply of sufficient
light, a sufficient cubic space of air and ventilation, to the removal
of all dust and dirt arising from the work, and of all smoke and gases
developed thereby, as well as to any risks inherent in it.
Also such arrangements shall be made as are necessary to protect the
workers against dangerous contact with the machines or parts of the
machinery, or against other dangers proceeding from the nature of the
place of business or of the business itself, especially against danger
arising from fire in the factory.
Lastly, such orders shall be issued for the regulation of business and
the conduct of the workers, as may be necessary to ensure freedom from
danger in work.
§ 120_b_.
Employers of industry shall be bound to make such arrangements and to
issue such orders for the conduct of the workers as may be necessary to
ensure the maintenance of decency and good morals.
In particular, separation of the sexes in their work shall be enforced
so far as the nature of the business may permit, where the maintenance
of good morals and decency cannot be otherwise ensured in the
arrangement of the business.
In establishments where the nature of the business renders it necessary
for the workers to change their clothes and wash themselves after their
work, sufficient separate rooms for dressing and washing shall be
provided for each sex.
Sufficient lavatories shall be provided for the number of the workers,
and they shall be so arranged as to meet all requirements of health, and
to allow of their being used without offence to decency and morality.
§ 120_c_.
Employers of industry employing workers under eighteen years of age
shall be bound in the arrangement of their places of business, and in
the regulation of their business, to take such precautions for the
security of health and morals as may be required by the age of the
workers.
§ 120_d_.
The appointed police authorities shall be empowered to issue orders for
separate establishments for the carrying out of such measures as may
seem necessary for the maintenance of the principles laid down in §§
120_a_ to 120_c_, and such as may seem practicable according to the
nature of the establishment. They may order that suitable rooms, heated
during the cold season, be placed free of charge at the disposal of the
workers, in which the meal times may be spent outside the workrooms.
A sufficient delay must be granted for the carrying out of the measures
ordered, unless they be directed to the removal of some pressing danger,
threatening life or health.
In the case of establishments already existing at the time of the
proclamation of this Act (not including extensions and outbuildings
since added), only such requirements shall be demanded as may seem
necessary for the removal of grave evils endangering the life, health or
morals of the workers, and only such as may seem practicable without
disproportionate expense.
The employer shall have right of appeal within two weeks to the higher
administrative authorities against the order of the police magistrate;
and within four weeks to the Central Court against the decision of the
higher administrative authorities. The decision of the Central Court
shall be final. If the order is contrary to the directions issued by the
authorised trade guild for precautions against accidents, the president
of the trade guild shall be empowered to use the afore-named remedies
within the period granted to the employer.
§ 120_e_.
By decision of the Federal Council, directions may be issued, showing
what requirements shall be sufficient in certain kinds of establishments
for the maintenance of the principles laid down in §§ 120_a_ to 120_c_.
Where such directions are not issued by decision of the Federal Council,
they may be issued by order of the Central Provincial Court or by police
regulations of such courts as are empowered to issue the same. Before
the issue of such orders and police regulations, opportunity shall be
given to the presidents of trade guilds or of sections of trade guilds,
to express their opinion thereon. The provisions of § 79, I. of the
Insurance against Accidents Act of July 6, 1884, do not apply to this.
In the case of those industries in which the health of the workers would
be endangered by the excessive duration of daily work, orders may be
issued by decision of the Federal Council as to the duration, beginning
and ending of the time permitted for daily work, and as to the intervals
to be granted; and the necessary orders may be issued for the
enforcement of these directions.
Directions issued by decision of the Federal Council shall be published
in the _Imperial Law Gazette_, and shall be laid before the Reichstag
for discussion at the next session.
II. RELATIONS OF JOURNEYMEN AND ASSISTANTS.
§ 121.
Journeymen and assistants shall be bound to obey the orders of the
employer with respect to the work entrusted to them, and to comply with
domestic arrangements; they shall not be obliged to perform domestic
work.
§ 122.
Working relations between journeymen or assistants and their employers
may be dissolved by notice given fourteen days previously by either
party, unless agreement to the contrary has been made. If other periods
of notice have been agreed on, they must be equal for both parties.
Agreements made in contravention of this provision shall be void.
§ 123.
Journeymen and assistants may be dismissed before the expiration of the
contract time, and without notice:
1. If, in concluding the contract of work they have deceived the
employer by producing a false or falsified work register or
testimonial, or if they have deceived him as to the existence of
some other working relation in which they already stand;
2. If they are guilty of theft, appropriation, embezzlement, deceit
or immoral living;
3. If they have quitted work without permission, or have otherwise
persistently refused to fulfil the obligations imposed upon them by
the contract;
4. If, in spite of warnings, they carelessly carry about fire and
light;
5. If they are guilty of violence or abuse towards the employer or
his representatives or towards the relatives of the employer or of
his representatives;
6. If they are guilty of wilful and illegal damage to the injury of
the employer or of a fellow-worker;
7. If they lead or seek to lead relatives of the employer or of his
representatives or of their fellow-workers into illegal or immoral
courses, or if they unite with relatives of the employer or of his
representatives in committing illegal or immoral acts;
8. If they are incapable of continuing work or are afflicted with
serious illness.
In the cases mentioned under Nos. 1 to 7, dismissal shall no longer be
permissible if the grounds thereof have been known to the employer for
longer than one week.
In the case mentioned under No. 8, it shall be determined in accordance
with the contract and with general legal enactments, how far claims for
compensation may be preferred by the party dismissed.
§ 124.
Journeymen and assistants may quit work without notice before the
expiration of the contract time:
1. If they become incapable of continuing work;
2. If the employer or his representatives are guilty of violence
or abuse towards the workers or their relatives;
3. If the employer or his representatives or their relatives lead
or seek to lead the workers or their relatives into illegal or
immoral courses, or if they unite with relatives of the workers in
committing illegal or immoral acts;
4. If the employer does not pay the wage due to the workers in the
manner prescribed, if, under the piece-work system, he does not
provide them with sufficient employment, or if he is guilty of
illegally over-reaching them;
5. If, by continuing the work, the life or health of the workers
would be exposed to a demonstrable risk which was not apparent at
the time of entering into the contract.
In the cases mentioned under No. 2, quitting service without notice is
no longer permissible if the grounds thereof have been known to the
workers for longer than one week.
§ 124_a_.
Besides the cases specified in §§ 123 and 124, each party may, in cases
where urgent reasons exist, demand to be released from working relations
before the expiration of the contract time and without observing the due
period of notice, if the contract is for longer than four weeks, or if a
longer period of notice than fourteen days has been agreed upon.
§ 124_b_.
If a journeyman or assistant has quitted work illegally, the employer
may claim compensation for the day of the breach of contract and for
each following day of the contract time or legal working time, during
one week at most, to the amount of the local customary daily wage (§ 8
of the Insurance against Sickness Act of June 15, 1883; _Imperial Law
Gazette_, p. 73). This claim need not rest upon proof of loss. When thus
made good, claim for fulfilment of contract and further compensation for
loss is precluded. The journeyman or assistant shall enjoy the same
right against the employer, if he has been dismissed before the legal
ending of the working relations.
§ 125.
Any employer inducing a journeyman or assistant to quit work before the
legal ending of working relations, shall himself be liable to the former
employer for loss arising, or for the legal compensation claim under §
124_b_. In the same manner an employer shall be answerable if he takes
into his employ a journeyman or assistant who to his knowledge is still
contracted to any employer.
Any employer shall also be liable under the foregoing sub-section if he
employs a journeyman or assistant, who to his knowledge is still
contracted to another employer, throughout the duration of such term;
the claim expires after fourteen days from the date of the illegal
dissolution of working relations.
The persons specified in § 119_b_ shall be accounted as journeymen and
assistants as understood by the foregoing provisions.
III. APPRENTICE RELATIONS.
§ 126.
The master shall be bound to instruct the apprentice in all branches of
the work of the trade forming part of his business, in due succession
and to the extent necessary for the complete mastery of the trade or
handicraft. He must conduct the instruction of the apprentice himself or
through a fit representative expressly appointed thereto. He shall not
deprive the apprentice of the necessary time and opportunity on Sundays
and holidays for his education and for attendance at Divine Service, by
employing him in other kinds of service. He shall train his apprentice
in habits of diligence and in good morals, and shall keep him from evil
courses.
§ 127.
The apprentice shall be placed under the parental discipline of the
master. He shall be bound to render obedience to the one who conducts
his instruction in the place of the master.
§ 128.
Apprentice relations may be dissolved by the withdrawal of one party
during the first four weeks after the beginning of the apprenticeship,
unless a longer time has been agreed upon.
Any agreement to fix this time of probation at longer than three months
shall be void.
After the expiration of the time of probation the apprentice may be
dismissed before the ending of the apprenticeship agreed upon, if any
one of the cases provided for in § 123 applies to him.
On the part of the apprentice, relations may be dissolved at the
expiration of the time of probation:
1. If any one of the cases provided for in § 124 under nos. 1, 3 to
5 occurs;
2. If the master neglects his legal obligations towards the
apprentice in a manner endangering the health, morals or education
of the apprentice, or if he abuses his right of parental
discipline, or becomes incapable of fulfilling the obligations
imposed upon him by the contract.
The contract of apprenticeship shall be dissolved by the death of the
apprentice. The contract of apprenticeship shall be dissolved by the
death of the master if the claim is made within four weeks.
Written contracts of apprenticeship shall be free of stamp duty.
§ 129.
At the termination of apprentice relations, the master shall deliver to
the apprentice a testimonial stating the trade in which the apprentice
has been instructed, the duration of the apprenticeship, the knowledge
and skill acquired during that time, and also the conduct of the
apprentice. This testimonial shall be certified by the borough
magistrate free of costs and stamp duty.
In cases where there are guilds or other industrial representative
bodies, letters or certificates from these may supply the place of such
testimonials.
§ 130.
If the apprentice quits his instruction under circumstances not provided
for in this Act, without consent of his master, the latter can only make
good his claim for the return of the apprentice, if the contract of
apprenticeship has been drawn up in writing. In such case the police
magistrate may, on application of the master, oblige the apprentice to
remain under instruction so long as apprentice relations are declared by
judicial ruling to be still undissolved.
Application is only admissible if made within one week after the
departure of the apprentice. In case of refusal, the police magistrate
may cause the apprentice to be taken back by force, or he may compel him
to return under pain of a fine, to the amount of fifty marks, or
detention for five days.
§ 131.
If the parent or guardian acting for the apprentice, or if the
apprentice himself, being of age, shall deliver a written declaration
to the master, that the apprentice wishes to enter into some other
industry or some other calling, apprentice relations shall cease after
the expiration of four weeks, if the apprentice is not allowed to leave
earlier. The grounds of the dissolution must be notified in the work
register by the master.
The apprentice shall not be employed in the same trade by another
employer, without consent of the former master, within nine months after
such dissolution of apprentice relations.
§ 132.
If apprentice relations are severed by either party, before the
appointed time, the other party can claim compensation only if the
contract has been made in writing. In the cases referred to in § 128, 1,
4, the claim will only hold if the kind and degree of compensation has
been specified beforehand, in the contract.
The claim is void unless made within four weeks of the dissolution of
apprentice relations.
§ 133.
If apprentice relations are dissolved by the master, because the
apprentice has quitted his work without permission, the compensation
claimed by the master shall, unless some other agreement have been made
in the contract, be fixed at a sum amounting for every day succeeding
the day of breach of contract, up to a limit of six months, to the half
of the customary local wage paid to journeymen and assistants in the
trade of the master.
The father of the apprentice shall be liable for the payment of
compensation, also any employer who has induced the apprentice to quit
his apprenticeship, or who has received him into his employ, although
knowing him to be still under obligation to continue in apprentice
relations to another employer. If the one who is entitled to
compensation has not received information till after the dissolution of
apprentice relations, as to the employer who has induced the apprentice
to quit his work, or who has taken him into his employ, claim for
compensation against the latter shall expire if not preferred within
four weeks after such information has been received.
IIIA. RELATIONS OF BUSINESS MANAGERS, FOREMEN, SKILLED TECHNICAL
WORKERS.
§ 133_a_.
The service relations of such persons, as are employed by directors of
industry for certain defined purposes, and are charged, not merely
temporarily, with the conduct and supervision of the business, or of a
department of the business (business managers, foremen, etc.), or are
entrusted with the higher kinds of technical service work (experts in
machinery, mechanical engineers, chemists, draughtsmen, and the like),
may, if not otherwise agreed, be broken off by either party at the
expiration of any quarter of the calendar year, after notice has been
given six weeks previously.
§ 133_b_.
Either party may, before the expiration of the contract time, demand
dissolution of service relations without observing the due period of
notice, provided sufficiently important reasons exist to justify the
dissolution under the circumstances.
§ 133_c_.
Dissolution of service relations may be demanded, in particular, of the
persons specified in § 133_a_.
1. If at the time of concluding the contract, they have deceived
the employer by presenting false or falsified testimonials, or if
they have deceived him as to the existence of another service
relation, to which they were simultaneously bound;
2. If they are unfaithful in service or if they abuse confidence;
3. If they quit service without permission, or persistently refuse
to fulfil the obligations imposed upon them by the service
contract;
4. If they are hindered in the performance of service by protracted
illness, or by long detention or absence;
5. If they are guilty of violence or insult towards the employer or
his representatives;
6. If they pursue an immoral course of life.
In the case of No. 4, the worker's claim for the fulfilment of contract,
by the employer, shall remain in force for six weeks, if the performance
of service has been hindered by some unavoidable misfortune; but in such
cases the claim shall be limited to the amount that is legally due to
the claimant as insurance against sickness or accident.
§ 133_d_.
The persons specified in § 133_a_ may demand dissolution of service
relations, in particular:
1. If the employer or his representatives are guilty of violence or
insult towards them;
2. If the employer does not provide the work agreed upon in the
contract;
3. If, by the continuance of service relations, their life or
health would be exposed to demonstrable danger, which was not
apparent at the time of entering into service-relations.
§ 133_e_.
The provisions of §§ 124_b_ and 125 shall apply to the persons specified
in § 133_a_, but not the provisions of § 119_a_.
IV. RELATIONS OF FACTORY WORKERS.
§ 134.
The provisions of §§ 121 to 125 shall apply to factory workers; if the
factory workers are apprentices, the provisions of §§ 126 to 133 shall
apply to them.
Owners of factories in which, as a rule, at least twenty workers are
employed, shall be prohibited, in the case of illegal dissolution of
working relations by the worker, from exacting forfeiture or withholding
wage beyond the amount of the average weekly wage. The provisions of §
124_b_ shall not apply to employers and workers in such factories.
§ 134_a_.
In every factory in which, as a rule, at least twenty workers are
employed, _working rules_ shall be issued within four weeks after this
Act comes into force, or after the opening of the business. Special
working rules may be issued for separate departments of the business, or
separate groups of workers. The rules must be posted up (§ 134_e_ [2]).
In the working rules must be set forth the time at which they are to
come into operation and the date of issue. They must bear the signature
of the person by whom they are issued.
Alterations in the contents can only be made by the issue of
supplements, or by the issue of new working rules in the place of the
existing rules.
Working rules, and supplement to the same, shall come into operation at
the earliest, two weeks after issue.
§ 134_b_.
Working rules shall contain directions:
1. As to the beginning and end of the time of daily work, also as
to the intervals provided for adult workers;
2. As to the time and manner of computing and paying wage;
3. Where legal provisions are insufficient, as to the period of
notice due, also as to the grounds on which dismissal from work and
quitting work is permissible without notice;
4. Where fines are enforced, as to the kind and amount thereof, the
method of determining them, and, if they consist in money, as to
the manner of collecting them, and the purpose to which they shall
be appropriated.
5. Where forfeiture of wage is exacted in accordance with the
provisions of § 134 (2), by the working rules or by the working
contract, as to the appropriation of the proceeds.
Punishments destructive of self-respect, or dangerous to morals, shall
not be admitted in the working rules. Money fines shall not exceed the
half of the average daily wage, except in cases of violence towards
fellow-workers, grave offences against morality, and contempt of
directions issued for the maintenance of order in the business, for
security against dangers incidental to it, or for carrying out the
provisions of the Industrial Code, where money fines to the full amount
of the average daily wage may be imposed. All fines shall be devoted to
the benefit of the workers in the factory. The right of the employer to
claim compensation for damage is not affected by this provision.
It shall be left to the owner of the factory to insert in the working
rules, together with the provisions of sub-section (1) from 1 to 5,
further provisions for the regulation of the business and the conduct of
the workers employed in it. With the consent of the standing committee
of workers, directions may be inserted in the working rules, as to the
conduct of the workers in the use of arrangements, provided for their
benefit in the factory, also directions as to the conduct of workers
under age, outside the factory.
§ 134_c_.
The contents of the working rules shall be, unless contrary to law,
legally binding on employers and workers.
No grounds shall be agreed upon in the contract of work, for dismissal
from work, other than those laid down in the working rules or in §§ 123
or 124.
No fines shall be imposed on the workers other than those laid down in
the working rules. Fines must be fixed without delay, and information
thereof must be given to the worker.
The money fines imposed shall be entered in a register which shall set
forth the name of the offender, the day of imposition, the grounds, and
the amount of the fine, and this register shall be produced for
inspection at any time, at the request of the officer specified in §
139_b_.
§ 134_d_.
Before the issue of working rules, or of supplements to the same,
opportunity shall be given to the workers of full age, employed in the
factory or in the departments of the business, to which the rules in
question apply, to express their opinion on the contents of the same.
In factories in which there is a standing committee of workers the
requirements of this provision shall be satisfied by granting a hearing
to the committee, on the contents of the working rules.
§ 134_e_.
The working rules and any supplement to the same shall, on communication
of opinions expressed by the workers, provided such expression be given
in writing or in the form of protocols, be laid before the lower court
of administration in duplicate, within three days after the issue,
accompanied by a declaration showing that, and in what manner the
requirements of the enactment of § 134_d_ have been satisfied.
The working rules shall be posted up in a specially appointed place,
accessible to all the workers to whom they apply. The placard must
always be kept in a legible condition. A copy of the working rules shall
be handed to every worker upon his entrance into employment.
§ 134_f_.
Working rules or supplements to the same, which are not issued in
accordance with these enactments, or the contents of which are contrary
to legal provisions, shall be replaced by legal working rules, or shall
be altered in accordance with legal enactment, by order of the lower
court of administration.
Appeal against this order may be lodged within two weeks, with the
higher court of administration.
§ 134_g_.
Working rules issued before this Act comes into force, shall be subject
to the provisions of §§ 134_a_ to 134_c_, 134_e_ (2), 134_f_, and shall
be laid before the lower court of administration in duplicate, within
four weeks.
Sections 134_d_ and 134_e_ (1) shall not apply to later alterations of
such working rules, or to working rules issued for the first time, since
January 1st, 1891.
§ 134_h_.
The expression "standing committees of workers," as understood by §§
134_b_ (3), and 134_d_, includes only:
1. The managing committee of the sick-clubs of the business
(factory), or of other clubs existing in the factory, for the
benefit of the workers, the majority of the members of which are
elected by the workers out of their midst--where such exist as
standing committees of workers;
2. The eldest journeymen of such journeymen's unions as include the
business of any employers not subject to the provisions of the
Mining Acts--where such exist as standing committees of workers;
3. Standing committees of workers, formed before Jan. 1st, 1891,
the majority of the members of which are elected by the workers out
of their midst;
4. Representative bodies, the majority of the members of which are
elected out of their midst by direct ballot voting of the workers
of full age in the factory, or in the departments of the business
concerned. The choice of representatives may be made according to
classes of workers or special departments of the business.
§ 135.
Children under 13 years of age cannot be employed in factories. Children
above 13 years of age can only be employed in factories if they are no
longer required to attend the elementary schools.
The employment of children under 14 years of age must not exceed 6 hours
a day.
Young persons between 14 and 16 years of age must not be employed in
factories for more than 10 hours a day.
§ 136.
Young workers (§ 135) shall not begin work before 5.30 in the morning,
or end it later than 8.30 in the evening.
On every working day regular intervals must be granted, between the
hours of work. For children who are only employed for six hours daily,
the interval must amount to half an hour at least. An interval of at
least half an hour at mid-day, and half an hour in the forenoon and
afternoon must be given to other young workers.
During the intervals, employment of young workers in the business of the
factory shall be entirely prohibited, and their retention in the work
rooms shall only be permitted, if the part of the business in which the
young workers are employed is completely suspended in the work rooms
during the time of the interval, or if their stay in the open air is not
practicable, and if other special rooms cannot be procured without
disproportionate difficulties.
Young workers shall not be employed on Sundays and festivals, nor during
the hours appointed for regular spiritual duties, instruction in the
catechism, preparation for confession and communion, by the authorized
priest or pastor of the community.
§ 137.
Girls and women cannot be employed in factories during the night,
between the hours of 8.30 p.m. and 5.30 a.m., and must be free on
Saturdays and on the eves of festivals by 5.30 p.m. The employment of
women workers over 16 years of age must not exceed 11 hours a day, and
on Saturdays and the eve of festivals must not exceed 10 hours.
An interval between the hours of work of at least one hour at mid-day
must be allowed to women workers.
Women workers over 16 years of age, who manage a household, shall at
their request be set free half an hour before the mid-day interval,
except in cases where this amounts to at least one and a half hours.
Women after childbirth can in no case be admitted to work until fully
four weeks after delivery, and in the following two weeks only if they
are declared to be fit for work by a duly authorized physician.
§ 138.
The owners of factories, in which it is intended to employ women or
young persons, must make a written announcement of the fact to the local
police authorities before such employment commences.
The notice shall set forth the name of the factory, the days of the week
on which employment is to take place, the beginning and end of the time
of work, and the intervals granted, also the kind of employment.
No alteration can be made except such delays as are temporarily
necessitated by the replacement of absent workers in separate shifts of
work, before notice thereof has been given to the magistrate. In every
factory the employer shall, in the workrooms in which young workers are
employed, provide a register of young workers to be posted up in some
conspicuous place; the same shall contain information as to days of
work, beginning and end of time of work, and intervals allowed.
He shall likewise provide in such workrooms a notice board, on which
shall be posted up, in plain writing, an extract, to be determined by
the Central Court, from the provisions for the employment of women and
young workers.
§ 138_a_.
In case of unusual pressure of work, the lower court of administration
shall be empowered, on application of the employer, to permit for a
fortnight at a time, the employment of women workers over 16 years of
age up to 10 o'clock in the evening (except on Saturdays), provided that
their daily working time does not exceed 13 hours.
Such extension cannot be allowed to the employer during more than 40
days in any one year.
Further extension beyond the two weeks, or for more than forty days in
the year, can only be granted by the higher court of administration,
and by it, only on condition that in the business or in the department
of business in question, the total average number of hours per day,
calculated over the whole year does not exceed the legal limit.
Application shall be made in writing, and must set forth the grounds on
which such extension is requested, the number of women workers affected,
the amount of employment, and the length of time required.
The decision of the lower court of administration on the application
shall be given in writing within three days. Appeal against refusal of
permission may be lodged with the superior court.
In cases where the extension is granted the lower court of
administration shall draw up a schedule, in which shall be entered the
name of the employer, and a copy of the statements contained in the
written application.
The lower court of administration may permit the employment of such
women workers being over 16 years of age, as have not the care of a
household, and do not attend an educational school, in the kinds of work
specified in § 105 (1), 2 and 3, on Saturdays and the eve of festivals,
after 5.30 p.m., but not after 8.30 p.m.
The permit shall be in writing, and shall be kept by the employer.
§ 139.
If natural causes or accidents shall have interrupted the business of a
factory, exceptions to the restrictions laid down in §§ 135 (2), (3),
136, 137 (1) to (3), may be granted by the higher court of
administration, for a period of four weeks, and for a longer time by the
Imperial Chancellor. In urgent cases of such a kind, and also where
necessary, in order to guard against accidents, exceptions may be
granted by the lower court of administration, but only for a period of
fourteen days.
If the nature of the business, or special considerations attaching to
workers in particular factories, seem to render it desirable that the
working time of women and young workers should be regulated otherwise
than as laid down by §§ 136 and 137 (1), (3), special regulations may be
permitted on application, by the higher court of administration, in the
matter of intervals, in other matters by the Imperial Chancellor. But in
such cases young workers shall not be employed for longer than six
hours, unless intervals are granted between the hours of work, of an
aggregate duration of at least one hour.
Orders issued in accordance with the foregoing provisions shall be in
writing.
§ 139_a_.
The Bundesrath (Federal Council) shall be empowered:
1. To entirely prohibit or to attach certain conditions to the
employment of women and of young workers in certain branches of
manufacture which involve special dangers to health or morality;
2. To grant exceptions to the provisions of §§ 135 (2) and (3),
136, 137 (1) to (3), in the case of factories requiring
uninterrupted use of fire, or in which for other reasons, the
nature of the business necessitates regular day and night work,
also in the case of factories, a part of the business of which does
not admit of regular shifts of equal duration, or is from its
nature restricted to certain seasons;
3. To prevent the shortening or the omission of the intervals
prescribed for young workers, in certain branches of manufacture,
where the nature of the business, or consideration for the workers
may seem to render it desirable;
4. To grant exceptions to the provisions of § 134 (1) and (2), in
certain branches of manufacture in which pressure of business
occurs regularly at certain times of the year, on condition that
the daily working time does not exceed 13 hours, and on Saturday 10
hours.
In the cases under No. 2, the duration of weekly working time shall not
exceed 36 hours for children, 60 hours for young persons, 65 hours for
women workers, and 70 hours for young persons and women in brick and
tile kilns.
Night work shall not exceed in duration 10 hours in 24, and in every
shift one or more intervals, of an aggregate duration of at least one
hour, shall be granted.
In the cases under No. 4, permission for overtime work for more than 40
days in the year may only be granted, on condition that the working time
is so regulated that the average daily duration of working days does not
exceed the regular legal working time.
The provisions laid down by decision of the Bundesrath (Federal Council)
shall be limited as to time, and shall also be issued for certain
specified districts. They shall be published in the _Imperial Law
Gazette_, and shall be laid before the Reichstag at its next session.
V. SUPERVISION.
§ 139_b_.
The supervision and enforcement of the provisions of §§ 105_b_ (1),
105_c_ to 105_h_, 120_a_ to 120_e_, 134 to 139_a_, shall be entrusted
exclusively to the ordinary police magistrates, or, together with them,
to officials specially appointed thereto by the provincial governments.
In the exercise of such supervision the local police magistrates shall
be empowered with all official authority, especially with the right of
inspection of establishments at any time. They shall be bound to observe
secrecy (except in exposing illegalities) as to their official knowledge
of the business affairs of the establishments submitted to their
inspection.
The settlement of relations of competence between these officials and
the ordinary police magistrates, shall be subject to the constitutional
regulation of the separate States of the Bund.
The officials mentioned shall publish annual reports of their official
acts. These annual reports or extracts from the same, shall be laid
before the Bundesrath and the Reichstag.
Employers must at any time during the hours of business, especially at
night, permit official inspection to be carried out in accordance with
the provisions of §§ 105_a_ to 105_h_, 120_a_ to 120_e_, 134 to 139_a_.
Employers shall further be bound to impart to the officials appointed or
to the police magistrate, such statistical information as to the
relations of their workers, as may be prescribed by the Bundesrath or
the Central Provincial Court, with due observance of the terms and forms
prescribed.
_Article IV._
Chapter IX. of the Industrial Code shall contain the following clauses:
CHAPTER IX.
STATUTORY PROVISIONS.
§ 142.
Statutory provisions of a borough or wider communal union shall be
binding in regard to all those industrial matters with which the law
empowers them to deal. After they have been considered by the directors
of industry and the workers concerned, the statutory provisions must
receive the assent of the higher court of administration, and shall
then be published in some form prescribed by the parish or wider
communal union, or in the usual form.
The Central Court shall be empowered to annul statutory provisions which
are contrary to law or to the statutory provisions of a wider communal
union.
_Article V._
Sub-section 2 of § 93_a_ (2_b_) shall contain the following clause:
_b._ The supervision by the union of the observation of the
provisions laid down in §§ 41_a_, 105_a_ to 105_g_, 120 to 120_e_,
126, 127.
_Article VI._
The penal provisions of Chapter X. of the Industrial Code shall be
altered as follows:
1. Section 146, (1) 1, 2, and 3, shall contain the following clauses:
1. Directors of industry, acting in contravention of § 115;
2. Directors of industry, acting in contravention of §§ 135, 136,
137, or of orders issued on the grounds of §§ 139 to 139_a_;
3. Directors of industry, acting in contravention of §§ 111 (3) and
113 (3);
2. The following sub-section shall be added to § 146:
Section 75 of the Constitution of Justice Act shall apply here.
3. After § 146 shall be inserted:
§ 146_a_.
Any person who gives employment to workers on Sundays and festivals, in
contravention of §§ 105_b_ to 105_g_, or of the orders issued on the
grounds thereof, or any person who acts in contravention of §§ 41_a_
and 55_a_, or of the statutory provisions laid down on the grounds of §
105 (2) shall be punished with a money fine to the amount of 600 marks,
or in default of the same, with imprisonment.
4. Section 147 (1) 4 shall contain the following clause:
4. Any person who acts in contravention of the final orders issued
on the grounds of § 120_d_, or of enactments issued on the grounds
of § 120_e_;
5. After § 147 (1) 4, shall be inserted:
5. Any person who conducts a factory, in which there are no working
rules, or who neglects to obey the final order of the court as to
the substitution or alteration of the working rules.
6. Section 147 shall contain at the close the following new sub-section.
In the case of No. 4, the police magistrate may, pending the
settlement of affairs by order or enactment, order suspension of
the business, in case the continuance of the same would be likely
to entail serious disadvantages or dangers.
7. Section 148 shall contain the following extensions:
11. Any person who, contrary to the provision of § 134_c_ (2),
imposes such fines on the workers as are not prescribed in the
working rules, or such as exceed the legally permissible amount, or
any person who appropriates the proceeds of fines or the sums
specified in § 134_b_ 5, in a manner not prescribed in the working
rules;
12. Any person who neglects to fulfil the obligations imposed upon
him by §§ 134_e_ (1), and 134_g_;
13. Any person who acts in contravention of § 115_a_, or of the
statutory provisions laid down on the grounds of § 119_a_.
8. Section 149 (1) 7 shall contain the following clause:
7. Any person who neglects to fulfil the obligations imposed upon
him by §§ 105_c_ (2), 134_e_ (2), 138, 138_a_ (5), 139_b_;
9. Section 150(2) shall contain the following clause:
2. Any person who, except in the case prescribed in § 146 (3), acts
in contravention of the provisions of this Act with respect to the
work register;
10. Section 150 shall contain the following extensions:
4. Any person who acts in contravention of the provisions of § 120
(1), or of the statutory provisions laid down in accordance with §
120 (3);
5. Any person who neglects to fulfil the obligations imposed upon
him by § 134_c_ (3).
Common law enactments against neglect of school duties, on which a
higher fine is imposed, shall not be affected by the provision of No. 4.
11. Section 151 (1) shall contain the following clause:
If in the exercise of a trade, police orders are infringed by
persons appointed by the director of the industrial enterprise, to
conduct the business or a department of the same, or to superintend
the same, the fine shall be imposed upon the latter. The director
of the industrial enterprise shall likewise be liable to a fine if
the infringement has taken place with his knowledge, or if he has
neglected to take the necessary care in providing for suitable
inspection of the business, or in choosing and supervising the
manager or overseers.
_Article VII._
The following provisions shall be substituted for § 154 of the
Industrial Code:
§ 154.
The provisions of §§ 105 to 133_c_ shall not apply to assistants and
apprentices in the business of apothecaries; the provisions of §§ 105,
106 to 119_b_, 120_a_ to 133_e_, shall not apply to assistants and
apprentices in trading business.
--The provisions of §§ 105 to 133_e_ shall apply to employers and
workers in smelting-houses, timber-yards, and other building yards, in
dockyards, and in such brick and tile kilns, and such mines and quarries
worked above ground, as are not merely temporary, or on a small scale.
The final decision as to whether the establishment is to be accounted as
temporary, or on a small scale, shall rest with the higher court of
administration.
--The provisions of §§ 135 to 139_b_ shall apply to employers and
workers in workshops, in which power machinery (worked by steam, wind,
water, gas, air, electricity, etc.), is employed, not merely
temporarily, with the provision that in certain kinds of businesses the
Bundesrath may remit exceptions to the provisions laid down in §§ 135
(2), (3), 136, 137 (1) to (3), and 138.
--The provisions of §§ 135 to 139_b_ may be extended by Imperial decree,
with consent of the Bundesrath, to other workshops and building work.
Workshops in which the employers are exclusively members of the family
of the employer, do not come under these provisions.
Imperial decrees and provisions for exceptions issued by the Bundesrath,
may be issued for certain specified districts. They shall be published
in the _Imperial Law Gazette_, and laid before the Reichstag at the next
ensuing session.
§ 154_a_.
The provisions of §§ 115 to 119_a_, 135 to 139_b_, 152 and 153 shall
apply to owners and workers in mines, salt pits, the preparatory work of
mining, and underground mines and quarries.
--Women workers shall not be employed underground in establishments of
the aforementioned kind. Infringements of this enactment shall be dealt
with under the penal provisions of § 146.
_Article VIII._
Section 155 of the Industrial Code shall contain the following clauses.
--Where reference is made in this Act to common law, constitutional or
legislative enactments are to be understood.
The Central Court of the State of the Bund shall make known what courts
in each State of the Bund are to be understood by the expressions:
higher court of administration, lower court of administration, borough
court, local court, lower court, police court, local police court, and
what unions are to be understood by the expression, wider communal
unions.
--For such businesses as are subject to Imperial and State
administration, the powers and obligations conferred upon the police
courts, and higher and lower courts of administration, by §§ 105_b_ (2),
105_c_ (2), 105_e_, 105_f_, 115_a_, 120_d_, 134_e_, 134_f_, 134_g_, 138
(1), 138_a_, 139, 139_b_, may be transferred to special courts appointed
for the administration of such businesses.
_Article IX._
The date on which the provisions of §§ 41_a_, 55_a_, 105_a_ to 105_f_,
105_h_, 105_i_ and 154 (3) shall come into force, shall be determined by
Imperial decree with consent of the Bundesrath. Until such time the
legal provisions hitherto obtaining shall remain in force.
The provisions of §§ 120 and 150, 4 shall come into force on Oct. 1,
1891.
--The rest of this Act shall come into force on April 1, 1892.
--The legal provisions hitherto obtaining shall remain in force until
April 1, 1894, in the case of such children from 12 to 14 years of age,
and young persons between 14 and 16 years of age, as were employed,
previous to the proclamation of this Act, in factories or in the
Industrial establishments specified in §§ 154 (2) to (4), and 154_a_.
--In the case of businesses in which, previous to the proclamation of
this Act, women workers over 16 years of age, were employed in night
work, the Central Provincial Court may empower the further employment in
night work of such women workers, in the same numbers as hitherto, until
April 1, 1894, at the latest, if in consequence of suspension of night
work, the continuation of the business to its former extent would
involve an alteration which could not be made sooner without
disproportionate expense. Night work shall not exceed in duration 10
hours in the 24, and in every shift intervals must be granted of an
aggregate duration of at least one hour. Day and night shifts must
alternate weekly.
Delivered under our Imperial hand and seal.
Given at Kiel, on board my yacht _Meteor_, June 1, 1891.
WILLIAM.
VON CAPRIVI.
Butler & Tanner, The Selwood Printing Works, Frome, and London.
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