The Theory and Policy of Labour Protection

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).

Purely hand-manufacturing wholesale business should also be counted as factory-labour; for the fact that workshop business carried on with the help of power machinery is declared to be on the same footing as factory-labour means only this: that it presupposes the same need of protection felt in factories where the business is carried on with the help of power machinery, as is the case in most factories; it does not mean that certain kinds of manufacturing wholesale business carried on without power machinery (of which there are very few) should not be counted as factories. We are therefore justified in dropping characteristic e of the theoretical conception of the Factory, as understood in Germany.

Let us now look at the Swiss Factory Regulations. The Confederate Factory Act of March 23, 1877, has given no legal definition of the word “Factory,” but only of “protected labour.” It extends protection to “any industrial institution in which a number of workmen are employed simultaneously and regularly in enclosed rooms outside their own dwellings.” According to the interpretation of the Bundesrath (Federal Council) “workers outside their dwellings” are those “whose work is carried on in special workrooms, and not in the dwelling rooms of the family itself, nor exclusively by members of one family.” Furthermore, all parts of the Factory in which preparatory work is carried on are subject to the Factory Act, as well as all kinds of printing establishments in which more than five workmen are employed. The Swiss Factory Act requires that a Factory shall possess all those characteristics assigned to it by German protective law, with the exception, however, of power machinery, and hence it doubtless covers all manufacturing business in which a number of workmen are employed.

According to Bütcher,[6] in the practical application of factory-protection in the Confederate States, any industrial establishment is treated as a factory which employs more than twenty-five workers or more than five power-engines, in which poisonous ingredients or dangerous tools are used, in which women and young persons (under eighteen years) are employed (with the exception of mills employing more than two workers not belonging to the family), and sewing business carried on with the help of three or four machines not exclusively worked by members of the family.

In Great Britain the Factory and Workshop Acts of March 27, 1878, cover all factory labour, and the bulk of workshop business, i.e. all workshops which employ such persons as are protected by the Act—children, young persons, and women.

This English Act again furnishes no legal definition of the term. “According to the meaning of the term, implied in this Act,” says von Bojanowski, “we must understand by a factory any place in which steam, water, or other mechanical power is used to effect an industrial process, or as an aid thereto; by ‘workshop,’ on the other hand, we must understand any place in which a like purpose is effected without the help of such power; in neither group is any distinction to be drawn between work in open and in enclosed places.”

Under this Act factories are divided into textile and non-textile factories. “Workshops are divided into workshops generally, i.e. those in which protected persons of all kinds are employed (children, young persons, and women), with the further subdivisions of specified and non-specified establishments; into workshops in which only women, but no children or young persons are employed; and lastly, domestic workrooms in which a dwelling-room serves as the place of work, in which no motive power is required, and in which members of the family exclusively are employed.”

Domestic work-rooms in which only women are employed do not come under the Act, nor yet factories, such as those for the breaking of flax, which employ only female labour. Bakeries are included among regulated workshops, i.e. workshops inspected under the Factory Acts, even when no women or young persons are employed. The Factory, as understood by the English law, is distinguished by most of the characteristics of the German acceptation of the term, without however admitting of the distinction of class d (business carried on in an enclosed space), whereby protection is also afforded to what we have termed quasi-factory labour (see p. 36); but on the other hand a special point is made of the distinction of class e, viz. use of power machinery. Thus the English idea in defining the factory is to insist, not upon the number of persons employed, but upon the proviso that they are persons within the scope of the protective laws.

Workshop Labour.

In the von Berlepsch Bill this is dealt with side by side with factory labour. It is sometimes placed on the same footing under the various categories of quasi-factory labour (classes 3 and 4), sometimes it lies outside the limits of factory protection, in cases where the Bundesrath does not exercise his privilege of granting extension of protection, and in cases where the workshop in question is worked entirely by members of one family.

It would be tautology to include in the definition of the workshop all the characteristics of the factory named in classes a to i. There may be cases in which the workshop practically includes most of the characteristics of the factory, but it is only necessary that it should include the following: business carried on outside the dwelling-rooms (b); preparation and manufacture of commodities (c); carried on in enclosed places (d). With the other classes it is not concerned. According to the English Factory Acts protected workshop labour is not necessarily carried on in enclosed places.

In treating of German workshop labour for the purposes of the von Berlepsch Bill, and for future legislation of the same kind, we have to classify it as follows:

Workshop labour carried on with the help of power-machinery, but not otherwise answering to the conditions of the factory.

Workshop labour carried on without power-machinery, by hand or by hand-worked machines.

Labour in workshops where all three kinds are required, i.e. power-machinery, hand-work, and hand-worked machines (e.g. modern costume-making in which power sewing-machines are employed.)

The old handicraft labour carried on in special workrooms, either within or outside the dwelling of the worker.

The characteristic peculiar to the three first divisions of workshops, and that which distinguishes them from the factory, although they in some respects resemble it, is that they give employment to but a very small number of workmen outside the limits of the family which maintains them.

The British Factory Acts include under the head of workshops those businesses in which no motive power is used, but in which protected persons (women, children, and young persons) are employed. Workshops of this kind are treated with varying degrees of stringency, according to whether they employ protected persons of all kinds, or only women (no children or young persons), and according to whether they are carried on in domestic workshops (dwelling-rooms) or otherwise.

Household (home) Industry and Family Industry.

Household industry, called also “home industry” in the Auer Motion is the industrial preparation and manufacture of commodities, not the production of material, nor trading, carrying, or service industry. It has therefore characteristic c (viz. that it excludes the production of raw material and the initial processes in connection therewith) in common with the factory and all workshops, as well as with that part of family industry which is not included in household industry properly so called; the very term Household Industry, in fact, indicates this.

The peculiarity of household industry (in the technical sense of the term) is that it is carried out merely at the orders and not under the supervision of the contractor. The Imperial Industrial Code, more especially the von Berlepsch Bill, in extending truck protection to household industry, understands this term to include all industrial workers engaged in the preparation of commodities under the direction of some firm or employer, but not working on the premises of their employers; and these workers may or may not be required to furnish the raw materials and accessories for their work. The home-workers carrying on this kind of preparation of commodities do so as a rule not in special work-rooms, but in their own dwelling-rooms or houses, or in little courtyards, sometimes in sheds and outhouses, sometimes even in the open air. For the rest, they may be either a few workers out of a family working on their own account, or a whole family working under the superintendence of one of its members. The most important characteristic of household industry is that it is work undertaken at the orders of a third party, therefore that it has no commercial independence, and takes no part in the sale of its products (characteristic i of factory labour); and therefore obviously we have no occasion to consider the other characteristics d, e, f, g, h, in defining household industry.

A distinction must be drawn between household industry carried on with or without the intervention of middlemen; for it takes a very different form, according to whether the arrangements between the industrial home-worker on the one side, and the giver of orders and provider of materials on the other, are made with or without the intervention of special agencies for ordering, supervising, collecting, and paying (commission agents, contractors, sweaters). The possible removal—or at least control and regulation—of the middleman forms one fundamental problem—hitherto unsolved—of labour protection in the sphere of household industry, and the protection of industrial home-workers against their parents and against each other forms another.

Family Industry.

Family industry to a great extent practically coincides with household industry, but not necessarily or entirely so; for family industry—meaning of course the work of preparing and manufacturing commodities—may be the preparation of goods for independent sale, not for sale by a third party in a shop or warehouse, and as a matter of fact this is very largely the case. Family industry sometimes even falls under the head of workshop labour (cf. § 154 of the von Berlepsch Bill). Its distinguishing characteristic is that it employs only workers belonging to the same family, hence the exact reverse of the Factory (see characteristic a). It includes all those industrial pursuits “in which the employer is served only by members of his own family” (Bill, § 154, par. 3).

II.—Personal Protection.

We come now to consider the meaning of the various headings under which personal protection falls.

Juvenile Workers. Juvenile workers of both sexes have long been subject to protection, and this kind of protection is gradually spreading all over Europe, and in more and more extended proportions. We must first ascertain what is the exact meaning of the term juvenile workers as used in the labour-protective laws.

In contrast to juvenile labour stands adult labour, or more accurately adult male labour, since adult women—not of course as adults but as women—are placed more or less on the same footing as juvenile workers in the matter of protective legislation.

The distinction between adult wage-labour and juvenile wage-labour, and the subdivision of the latter into infant-labour, child-labour, and the labour of “young persons,” is not of importance in all departments of labour protection, but it is of the utmost importance in protection of employment, especially in prohibition of employment on the one hand, and restriction of employment on the other. This prohibition and restriction of juvenile employment does not apply to all industries, but only to certain branches of industry and kinds of work, and to specially dangerous occupations.

In order to determine exactly what is meant by infant-labour, child-labour, and the labour of “young persons,” we must consider the inferior limit of age below which there is a partial prohibition of employment, and the superior limit of age beyond which labour is treated as adult labour as regards protection, receiving none, or only a very limited measure of it. The inferior limit does not as yet coincide with the beginning of school duties, nor does the superior limit coincide with the attainment of majority as recognised by common law.

“Juvenile labour”—permitted but restricted—stands midway between infant-labour, altogether prohibited in some branches of industry, and adult labour, permitted and unrestricted, or only slightly restricted; and within the inferior and superior limits of age it is divided into child-labour and labour of “young persons.”

The industrial laws of northern and southern countries differ in the inferior limit of age which they assign to prohibited infant-labour, as distinguished from child-labour permitted but restricted. In Italy this limit has hitherto been fixed at the completion of the ninth year; in England and France (in textile, paper, and glass industries), in Denmark, Spain, Russia, and in most of the industrial States of the North American Union, at the completion of the tenth year; in Germany hitherto, and in France (in general factory-labour, in workshops, smelting-houses, and building-yards), in Austria, Sweden, Holland and Belgium (Act of 1889), at the completion of the twelfth year; in Germany it is fixed for the future at the completion of the thirteenth year, as it soon will be in France also, in all probability—and in Switzerland at the completion of the fourteenth year.

The proposal of Switzerland at the Berlin Conference to fix the general inferior limit of age at 14 years was not carried. It has hitherto been prevented in Germany by the fact that in Saxony and elsewhere school duties are not exacted to the full extent as late as the age of 14.

The Berlin Conference voted for fixing the limit at the completion of the twelfth year, while agreeing that the limit of 10 years might be fixed in southern countries in view of the early attainment of maturity in hot climates. The limit is fixed higher with regard to protection in certain specified dangerous or injurious occupations: for boys engaged in coal mines the limit of 14 years was laid down by the resolutions of the Berlin Conference.[7]

The superior limit of age of juvenile labour in factories is fixed at 14 years in southern countries (in those represented at the Berlin Conference); at 16 years in Germany, Austria, and France (in connection with the fixing of the maximum duration of labour); and at 18 in Great Britain, Switzerland, and Denmark, and probably soon in France. With respect to night work and dangerous work, the superior limit (especially for women) is placed still higher (21 years), wherever such work is not entirely prohibited.

All wage-workers between the inferior and superior limits of age at which employment is permitted, are called, as already stated, “juvenile workers.” In many countries a further division of juvenile labour is made, into children and “young persons.” In Germany, Austria, Sweden, and Denmark—and in future probably in all those countries represented at the Berlin Conference—this division falls at the age of 14, and in southern countries at the age of 12 years. “Children,” in the meaning attached to the word by labour-protective legislation, are children of 12 to 14 years (in Germany in future 13 to 14, in Great Britain hitherto 10 to 14); “young persons” are juvenile workers from 14 to 16 years, in England of 14 to 18 years. In Switzerland juvenile workers are “young persons” of 14 to 18 years, as none under the age of 14 are employed at all.

Male labour and female labour. Women for the purposes of Labour Protection include all female workers enjoying special or extended protection, not only on account of youth, but also from considerations arising out of their sex and family duties. It is important that we should be clear on this point, in view of the demand now made for careful restriction of the employment of married women in factories,—either for the entire duration of married life or until the youngest child has reached the age of 14,—for the entire prohibition of night labour for women, and of the employment of women in certain trades during the periods of lying-in and of pregnancy.

Just as female labour for our purpose does not mean the labour of all female persons, so male labour does not include all labour of male persons, but only of such male persons as have protection on grounds other than that of youth. Hitherto, male labour has only had practically a negative meaning in protective law, it has been used in the sense of the unprotected labour of adult men. The demand for a maximum working day for all male labourers—at least in factories—and the concession of this demand have given a positive signification to the term male labour, as affected by protective legislation.

In considering the careful determination of the meaning of factory labour, workshop labour, household industry and family labour on the one hand, and child labour and female labour on the other hand, we cannot be too careful in guarding against undue limitations of the idea of Labour Protection. There are many who still take it to mean merely factory-protection, and indeed only factory-protection of “young persons.”

Labour Protection means something more than protection of industrial labour, in that it also deals with labour in mining and trading industry, and it must be extended still further to meet existing needs for protection.

Neither is industrial Labour Protection factory protection alone, nor even factory and quasi-factory protection alone, but beyond that it is also workshop protection, and, especially in its latest developments, protection of household industry, and perhaps even more or less of family industry; industrial home-work especially, from the Erz-Gebirge in Saxony, to the London sweating dens, admits of and actually suffers, from an amount of oppression which calls for special Labour Protection. We call attention to these facts in order to clear away certain still widespread misconceptions before we enter upon the classification of labour with respect to protective legislation. Particulars will be given in Chapters IV. to VIII.

CHAPTER III. SURVEY OF THE EXISTING CONDITIONS OF LABOUR PROTECTION.

In the first chapter we learnt to recognise the special character of Labour Protection in the strict sense of the term. We must further learn what is its actual aim and scope.

Labour Protection strictly so called, represents presumably the sum total of all those special measures of protection, which exist side by side with free self-help and mutual help, and with the ordinary state protection extended to all citizens, and to labourers among the rest. And such it really proves to be on examination of the present conditions and already observable tendencies of Labour Protection.

We shall only arrive at a clear and exhaustive theory and policy of Labour Protection both as a whole and in detail by examining separately and collectively all the phenomena of Labour Protection.

This will necessitate in the first place a comprehensive survey of the existing conditions of Labour Protection, and to this end a regular arrangement of the different forms which it takes.

In sketching such a survey we have to make a threefold division of the subject; first, the scope of Labour Protection, in the strict sense of the term; secondly, the various legislative methods of Labour Protection; and thirdly, the organisation of Labour Protection (as regards courts of administration, and their methods and course of procedure). In considering the scope of Labour Protection we have to examine the special measures adopted to meet the several dangers to which industrial wage-labour is exposed.

The following survey shows the actual field of labour protective legislation, as well as the wider extension which it is sought to give thereto.

I. Scope of Labour Protection.

A. Protection against material dangers.

1. Protection of employment; and this of two kinds, viz.:—

(i.) Restriction of employment;

(ii.) Prohibition of employment.

a. Protection of working-time with regard to the maximum duration of labour:

General maximum working-day.

Factory maximum working-day (unrestricted in the case of adults—restricted in the case of “juvenile workers” and women).

b. Protection of intervals of rest:

Protection of daily intervals—of night-work—of holidays—Sundays and festivals.

2. Protection during work:

Against dangers to life, health, and morals, and against neglect of teaching and instruction, incurred in course of work.

3. Protection in personal intercourse:—

In the personal and industrial relations existing between the dependent worker and the employer and his people (truck-protection).

B. Protection of the status of the workman (protection in the making and fulfilment of agreements) which may also be called:

Protection of agreement, or contract-protection.

1. Protection on entering into agreements of service, and throughout the duration of the contract:

Protection in terms of agreement and dismissal,

Protection against loss of character.

2. Regulation of admissible conditions of contract, and of legal extensions of contract.

3. Protection in the fulfilment of conditions after the completion of service agreements.

II. Various Legislative Methods of Labour Protection.

Compulsory legal protection—protection by the optional adoption of regulations.

Regulation under the code—regulation by special enactment.

III. Organisation of Labour Protection.

1. Courts by which it is administered:

A. Protection by the ordinary administrative bodies—

Police,
Magistrates,
Church and School authorities,
Military and Naval authorities.

B. Protection by specially constituted bodies,

1. Governmental:

a. Administrative:

Industrial Inspectorates (including mining experts),
“Labour-Boards,”
Special organs: local, district, provincial, and imperial;

b. Judicial:

Judicial Courts,
Courts of Arbitration.

2. Representative: (trade-organisations):

“Labour-Chambers,”
“Labour Councillors,”
Councils composed of the oldest representatives of the trade,
Labour-councils: local, district, provincial, and imperial.

II. Methods of Administration and Administrative Records.

a. Methods:

Hearing of Special Appeals,
Granting periods of exemption,
Fixing of times,
Regulating of fines,
Application of money collected in fines, etc.

b. Records:

Factory-regulations,
Certificates of health,
Factory-list of children employed,
Official overtime list,
Labour log-book,
Inspector’s report (with compulsory-publication and international exchange),
International collection of statistics and information relating to protective legislation and industrial regulations.

The foregoing survey may be held to contain all that is included under Labour Protection, actual or proposed. But of the measures included within these limits not all are as yet in operation; and the actual conditions are different in the various countries.

With regard to the scope of protection, those measures affecting married women, home-industrial work, work in trade and carrying industries, are still specially incomplete.

With regard to the organs of administration of Labour Protection, one kind, viz. the representative, has at present no existence except in the many proposals and suggestions made as to them; this however does not preclude the possibility that in the course of a generation or so a rich crop of such organs may spring up. It is not improbable that special representative bodies (“labour-councils”)—after the pattern of chambers of commerce and railway-boards, etc.—and “labour-boards” may develop and form a complete network over the country. Perhaps the separate representative and executive organs may be able to amalgamate the various branches of aids to labour, forming separate sections for Labour Protection, Labour Insurance, industrial hygiene and statistics, with equal representation of the administrative, judicial, technical and statistical elements; and thus the ordinary administration service may be freed from the burden of the special services which a constructive social policy demands.

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.

The general extension of the maximum working-day for women and juvenile workers to all industries, including family industries, has been demanded,[9] but is as yet nowhere enforced.

The specially short working-day for children necessitates alternating shifts, as child labour, as a rule, is inseparably connected with other work. English protective legislation directs in this case that children (from 10 to 14 years) may be employed in one and the same place only for half a day, either for the morning or the afternoon, or else on every alternate day, for the full day; and the order of working-days must be changed every week; in daily (half-day) employment, the actual working time (without intervals of rest) amounts to 6 hours daily, and 30 to 36 hours weekly, in other cases 10 hours daily and 30 hours weekly.