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 (Sec. 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 Duesseldorf 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_).