The Theory and Policy of 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 plural4 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.”

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).