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_.