The Theory and Policy of Labour Protection

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 (§ 139a, 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 106a, 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 § 120a.

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.