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:

"Sec. 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.

"Sec. 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.

"Sec. 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.

"Sec. 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 Sec. 120

to Sec. 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.

"Sec. 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 Sec.Sec. 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 Sec. 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 (Sec. 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 Sec. 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: "(Sec. 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. Sec. 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 (Sec. 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: "Sec. 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 (Sec.

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."

Sec. 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_.

The Theory and Policy of Labour Protection · 第 3 / 9 章