The Theory and Policy of Labour Protection

This formulary may be considered specially successful and almost conclusive.

The insertion of the foregoing clauses in the general portion of chap. vii. of the Imp. Ind. Code Amendment Bill ensures such protection in occupation as is adequate to all necessities of life, to the whole body of industrial work included within the sphere of the Industrial Code.

One item of Labour Protection in occupation might be supposed to consist in guarding against over-exertion, by means of the abolition of piece-work and “efficiency wage.” But this claim, in so far as we find it prevailing in the Labour world, is made more on grounds of wage policy than as a necessary measure of protection. The economic advantages to the workers themselves of these methods of payment are so great that the abolition of “efficiency wage” is not, I think, required either on grounds of wage policy or of protective policy. We must, however, pass over the consideration of this question, whilst admitting that there is still a great deal to be done in this direction by means of free self-help and mutual help.

(B) Protection of intercourse in service, Truck Protection in particular

To protection in occupation must be added – as a last measure of the protection of labour against material dangers – protection of the wage-worker in his personal and social intercourse outside the limits of his business with the employer and his family, and with the managers and foremen. In default of a better term, we have called this protection of intercourse in service.

Outside the actual performance of his work, the wage-worker is threatened by special dangers which can only be averted by extraordinary intervention of the State. These dangers affect the person and domestic life of the wage-worker.

Apprentices especially, and all wage-earners living in the same house as the employer, are liable from their position as the weaker party, to intimidation, ill-treatment, and neglect. Provision is made against such dangers by the ruling of the Industrial Regulations on the relations of journeymen and apprentices to business managers and employers.

Special protection has long been afforded in the social relations between the servant on the one side, and the employer and his family on the other. This takes the form of protection against usury, against exploitation of dependents, especially if they are ignorant and inexperienced. This protection in social relations may also be called – involving as it does, in by far the largest proportion of cases, protection against undue advantage derived from payment in kind – “Truck Protection.”

The usury in question may take the form of a profit in the way of service, or exploitation of the workman, by forcing him to perform work outside the agreement as well as the work of the business, or instead of it; or again, it may be profit on payment, derived from payment of wages in coin or kind; or it may be profit on credit, loan, hire and sale, derived by compelling the workman to enter into disadvantageous transactions in borrowing, contracting, and hiring, and by requiring him to purchase the necessaries of life at certain places of sale where exorbitant prices are demanded for inferior goods.

To prevent the employer from gaining such unfair advantage over the “members of his family, his assistants, agents, managers, overseers, and foremen,” the German Industrial Code has long since interfered by ordering payment in coin of the realm, by prohibiting credit for goods, and by limiting to cost price the charges for necessaries of life, and of work supplied (including tools and materials). Any agreements for the appropriation of a part of the earnings of the wage-worker for any other purpose than the improvement of the condition of the worker or his family shall be declared null and void. The Auer Motion demands also that “compulsory contributions to so-called ‘benefit clubs’ (savings banks attached to the business) shall be prohibited.”

This form of protection, which I have called protection of intercourse, is extended to all kinds of industrial work, as is also the case with protection in occupation, though not with protection by limitations of employment. In Germany this extension is effected by incorporating in the general portion of chap. vii. of the Imp. Ind. Code Amendment Bill the rules for protection in occupation and protection against usury, and also by including non-manufacturing (§ 134) as well as manufacturing work in the rules of the Industrial Regulations against personal ill-treatment and neglect.

Hitherto no special courts have been appointed for the administration of protection of intercourse, which has been left generally to the ordinary administration and especially to the judicial courts. In other cases it is left to the industrial courts of arbitration of the first and second instance rather than to the industrial inspectors. But extraordinary protection is afforded by special rulings of common law on illegal agreements, on nullity of agreement, on escheat of contributions to savings banks made in defiance of prohibition, on failures to complete contracts of apprenticeship and service, etc., etc.

The Imp. Ind. Code provides protection of intercourse in the business of household industry also, in the ruling of the second clause of § 119. The usefulness of this ruling depends indeed on the improvement of the organisation of Labour Protection which is still imperfect and insufficient in its application to household industry. The compulsory and voluntary assistance of the employers and their commercial agents, with or without control by the industrial inspector, is the aim towards which attention must be directed for the further development of protection of intercourse in household industry. The above-mentioned central union of workers in the embroidery industry in East Switzerland, which is for the most part household industry, shows what may be done by voluntary unions in the way of protection within the sphere of household industry. One inspector says: “The computation of the amount of embroidery done, i. e. the basis for the calculation of wages, is determined; the relations between the “middleman,” the employer and the workers are regulated; and a place of sale is provided for all work rejected by the employer on account of alleged imperfections. The classification of patterns —i. e. the fair graduation of wages according to the ease and rapidity, the greater or less trouble and expense with which the pattern is executed – has for a long time been one of the main objects of the union.”

(C) Protection of the status of the workman (protection of agreement, protection of contract)

The term protection of contract must here be understood in a wider sense than in that of a mere guarantee of freedom of contract, and judicial protection of labour contracts; hence I have called it protection of the status of the workman.

This protection of the status of labour includes a multifarious collection of existing measures of protection, and impending claims for protection which we may regard as falling under three heads: protection of engagement and dismissal, protection against abuse of contract, and protection in fulfilment of contract.

1. Protection of engagement and dismissal

By protection of engagement we mean protection of the worker against hindrances placed in the way of admittance into service; it is protection in the making and carrying out of agreements, partly protecting the workman against unjust loss of character, and partly giving him the right to claim a character. Protection against loss of character might further be divided into protection against defamation by individuals – foremen or employers – and protection against defamation by combinations of employers.

The Labour world claims protection against loss of character in the demand for the abolition of the labour log, and in Germany where the general log is not used, in the demand for the abolition of the young workers’ log which, however, is still recommended by many from considerations that have no connection with depreciation of work.

Wherever the labour log is still used, protection, against loss of character has long been afforded by prohibition of entries and marks which would be prejudicial to success in obtaining fresh employment.

Protection is demanded, but as yet nowhere granted, against defamation by combination of employers, of workmen who have made themselves disliked, against black lists, circulars, etc. The penalties of such defamation by combination in the Auer Motion are directed against employers and employers only, although in point of fact there are not infrequent cases of combinations among workmen for the defamation of employers. The Motion runs thus: “(§ 153) Whoever shall unite with others against any worker because he has entered into agreements or has joined unions, and shall endeavour to prevent him from obtaining work, or shall refuse to employ him, or shall dismiss him from work, shall be punished by imprisonment for three months.”

Another fragment of protection of engagement has long existed in the penalties attached to certain infringements of the right of combination, with reciprocity of course for the employers (cf. § 153 Imp. Ind. Code.)

The guarantee of testimonials has long been afforded – and has met with no opposition – as a means of protection against defamation by individual employers.

Side by side with protection of engagement we have protection in quitting service.

Special protection in quitting service – beyond the ordinary administrative and judicial protection of labour contract against unjust dismissal – consists partly of: protection in dismissal from service, i. e. against expulsion by the employer, and partly, of protection in voluntarily quitting service, i. e. quitting service for special reasons. Both these measures are applied to the whole of industrial wage labour, and have hitherto generally been enforced by the regular courts of justice and administration, by application, however, of special rulings of industrial legislation on written agreements, on the right of special dismissal from service, and the right of quitting service, and on the length of notice required, etc. The further development of protection in quitting service will probably more and more require the extraordinary jurisdiction of the industrial courts of arbitration. Protection against compulsory dismissal into which one employer may be forced by another employer by intimidation, libel, and defamation, is afforded by special penal Acts, and, like protection against breach of contract, is more particularly protection of the employer and is only indirectly protection of the worker.

2. Protection of contract, in the strict sense; protection by limitation of the right of contract, by completion of contract, and by enforcing fulfilment of contract

Beyond the ordinary judicial protection afforded by the obligations attached to service contract, special guarantees of protection are in part already granted, in part demanded, against abuse of contract, incomplete fulfilment and non-fulfilment of service contract to the disadvantage, as a rule, but of course not in all cases, of wage-labour.

This protection is afforded partly by formal regulations, partly by judicial rulings on special cases. The latter form of protection in contract is closely allied to protection in intercourse (see above); the two overlap each other.

The protection afforded by contract regulations consists in the enforcement of certain formal requirements, and the granting of certain remissions, such as e. g. the requirement of written agreements and the remission of duty on written agreements, etc. First and foremost stands the obligation to post up the working rules. A parte potiori13 all protection of contract might be called protection of working rules.

The working rules serve in reality to give the workman himself the control over his own rights, but they also are to the interest of the employer.

The von Berlepsch Bill further extends this sort of method to factory and quasi-factory labour (§ 134a-134g), permitting the workmen in any business to exert a considerable influence upon the drawing up of the working rules. Sections 134b and 134c read thus: “§ 134b. Working rules shall contain directions: (1) as to the time of beginning and ending the daily work, and as to the intervals provided for adult workers; (2) as to the time and manner of settling accounts and paying wages; (3) as to the grounds on which dismissal from service or quitting service may be allowable without notice, wherever such are not determined by law; (4) as to the kind of severity of punishments, where such are permitted; as to the way in which punishments shall be imposed, and, if they take the form of fines, as to the manner of collecting them and the purpose to which they shall be devoted. No punishments offensive to self-respect and decency shall be admitted in the working rules. Fines shall not exceed twice the amount of the customary day’s wage (§ 8. Insurance against Sickness Act, June 15th, 1883), and they shall be devoted to the benefit of the workers in the factory. The right of the employer to demand compensation for damage is not affected by this rule. It is left in the hands of the owner of the factory to add to rules I to 4 further rules for the regulation of the business and the conduct of the workmen in the business. The conduct of young workers outside the business shall also be regulated. The working rules may direct that wages earned by minors shall be paid to the parents and guardians, and only by their written consent to the minors directly; also that a minor shall not give notice to quit without the expressed consent of his father or guardian.”

§ 134d reads as follows: “Before the issue of the working rules or of an addition to the rules, opportunity shall be given to the workers in the factory to express their opinion on the contents. In those factories in which there is a standing committee of the workmen it will be sufficient to receive the opinions of the committee on the contents of the working rules.”

It is further recommended that the factory rules shall include the publication of legal enactments regarding protection by limitations of employment, protection in occupation and in intercourse, the necessary conditions and limitations of these, the possibilities of appeal, and methods of payment of overtime wage, also of instructions for precaution against accidents, and lastly of the name and address of the club doctor and dispenser, of the company and their representatives, the name of the factory inspector and his office address and office hours.

But we have seen that contract protection is not only afforded by these formal regulations but also by judicial rulings on special cases. These latter have a threefold task: to prevent the drawing up of unfair contracts, to supply deficiencies in the contract, by adding subsidiary rulings suited to the nature of the industrial service relations, and lastly, to secure the fulfilment of service contract; i. e. they have to provide protection by limitation and completion of contract and to secure fulfilment of contract.

This kind of protection of contract is of special importance in dealing with contract fines, proportional output (“efficiency work”), the supply of tools and materials of work, and lastly with payment of wage.

Labour Protection seeks to guard against abuse of contract fines, by fixing the highest permissible amount of fines, and by handing over the proceeds of the fines to the workmen’s provident fund. This is a matter of the highest moment, and must find a place in the drawing up and in the enforcement of the working rules (see above). Hitherto it has only been extended to factory labour.

A second task of protection of contract lies in the protection of “efficiency work,” i. e. protection of the wage-worker against an undue deduction from his “efficiency wage” on account of the alleged inferior quality of the output, and against neglect to reckon in the full amount of the output in the calculation of wage. This measure of protection has been placed on the orders of the day of the present labour protective movement, by the adoption e. g. of the system of checking the weight of the output in mining.

In the third place we come to protection of the workman against loss sustained in buying his tools and materials of work from the employer. This measure of protection in purchase of materials is applied to the whole of industrial labour by means of its insertion in the general rules for truck protection contained in the Imp. Ind. Code.

A fourth point, very closely allied to protection of intercourse, but which has to be dealt with protectively by those judicial rulings on protection of contract, concerns the permanence of rate of wage, the day, place, and period of payment, and by whom, and to whom, payments are to be made. Protection of payment may be more completely secured by the inclusion in the working rules of directions on these points. It must be applied to the whole of industrial wage-labour according to circumstances. The prohibition of payment of wages in public-houses and on Saturdays, the fixing of the wage by the employer himself, not by a subordinate official; the obligation to make the agreement as to “efficiency wage” at the time of undertaking the work, in order that the bargain may not be broken off should it prove specially favourable for the workers; also payment of wage at least weekly or fortnightly; and lastly, the payment of minors’ wages into the hands of parents or guardians, which constitutes a measure of educational protection of the minors against themselves – such are the principal requirements of protection of payment of wages, requirements which are already more or less fulfilled.

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 designated14 “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.