Читать книгу The Theory and Policy of Labour Protection - Germany. Laws statutes etc. - Страница 4

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.