The Theory and Policy of Labour Protection
The idea of an international code of Labour Protection could not have been more flatly rejected. Hence the opposition to the idea manifested by Prince Bismark was fully borne out by the Conference. This opposition has everything in its favour, for it is clear that a uniform international code of Labour Protection would supply boundless opportunities for friction and for stirring up international commercial quarrels. If it were desired to establish Labour Protection guaranteed by international agreement, it would be found that there would be as many disturbances of international peace as there are different kinds of industry, nay, I will even say, as there are workmen. The countries whose administration was best and most complete would be the very ones that would be most handicapped: seeing that they could expect only a very minimum of real reciprocity from those other contracting powers whose administration was faulty, and where a strong national sentiment was lacking in the workers, owing to their miserable and penurious condition in the absence of effective protection for labour. Accurately to supervise the observance of such an international agreement we should require an amount of organisation which it is quite beyond our power to supply. But even on paper, international labour legislation has no significance beyond that of creating international discontent and agitation, and of supplying political animosity with inexhaustible materials for arousing international jealousy. The Berlin Conference has negatively produced a favourable effect by the protest of England and France, if one reflects how fiercely the scepticism of Bismark’s policy was attacked before the meeting of the Conference. Repeated readings of the reports of the Conference have confirmed me in the impression that Prince Bismark was fully upheld by the Conference in his opposition to the establishment of Labour Protection by international agreement. But I have felt it necessary to clearly establish the grounds on which the opposition to this form of protection is based.
The moral influence of the international Conference, however, has been on the other hand something more than “vain beating the air.” This is already shown in the increased impetus given to the improvement of national labour-protective legislation.
The conclusions arrived at by the Conference as to the international furtherance of Labour Protection are, it is true, of the nature of recommendations merely, and are in nowise binding on the governmental codes of each country. But even as recommendations they are practically of the greatest value. None of the nations represented will venture, I think, to disregard the force of their moral influence. All the means recommended by the Conference have promise of more or less success. Some of the proposals, for instance, are: the repetition of international Labour Protection Conferences, the appointment of a general, adequate, and fully qualified industrial inspectorate, the international interchange of inspectors reports, the uniform preparation of statistics on all matters of protection, the international interchange of such statistics, and of all protective enactments issued either legislatively or administratively.15
But what of the proposal for the appointment of an international commission for the collection and compilation of statistics and legislative materials, for the publication of these materials, and for summoning Labour Protection Conferences, and the like? And what would this proposal involve?
None of the objections which can be urged against the enforcement of an international code of Labour Protection would apply to this. The commission would be well fitted to help forward the international development, on uniform lines, of labour protective legislation, without in any way fettering national independence. Its moral influence would be of great international value.
What it would involve is also easy to determine. Such a commission would be an international administrative organ for the spread and development of Labour Protection on uniform lines in all countries; a provision by International Law for the enforcement of the international moral obligations arising out of protective right.
That is really what the Labour Protection Conferences would be if they met periodically as suggested At the Berlin Conference this at least was felt when it was said that the Conference was indeed less than a treaty-making Congress, but more than a scientific Congress. “International Conferences may be divided into two categories. In the first the Plenipotentiaries of different States have to conclude Treaties, either political or economic, the execution of which is guaranteed by the principles of international law; to the second category belong those Conferences whose members have no actual powers, and give their attention to the scientific study of the questions submitted to them, rather than to their practical and immediate solution. Our Conference, from the nature of its programme, and the attitude of some of the States good enough to take part in it, has a character of its own, for it cannot pass Resolutions binding on the Governments, nor may it restrict itself to studying the scientific sides of the problems submitted to its examination. It could not aspire to the first of these parts; it could not rest content with the second. The considerations which have been admitted in the Commissions relative to all the questions contained in the programme have been inspired by the desire of showing the working population that their lot occupies a high place in the attention of the different Governments; but these considerations have had necessarily to bend to others which we cannot put aside. In the first place, there was the wish to unite all the States represented at the Conference in the same sentiment of devotion to the most numerous and the most interesting portion of society. It would have been grievous not to arrive at the promulgation of general principles, by means of which the solution of the most important half of the social problem should be attempted. It was evidently not possible to arrive at once at an agreement on all its details. But it was necessary to show the world that all the States taking part in the Conference were met in the same motives of humanity.”
The proposal of a commission for summoning repeated conferences, international, uniform gatherings of representatives of all non-governmental agencies of Labour Protection, for the purpose of dealing uniformly with the requirements of a progressive policy in national labour-protective legislation, was a summing up of the demands urged by the Conference for a strong, international, administrative organisation for the furtherance of Labour Protection by the international exchange of moral persuasion, but without the enforcement of a code of international application.
From a scientific point of view it is of the highest interest to observe how international right, and even to some extent an international administrative right, is here breaking out in an entirely new direction. Treaties between two or more, or all, civilized States have hitherto mainly been treaties for combined action in certain eventualities (treaties of alliance), or territorial treaties for defining spheres of influence. Or else they have been treaties for the reciprocal treatment of persons or of goods passing between or remaining in the territories of the respective contracting States: migration treaties, commercial treaties, treaties concerning pauper aliens, tariff treaties and other treaties. Or they have been treaties for the prevention of the spread of infectious diseases. The exercise of international activity in the creation, development, and regulation of an international uniform Social Policy would be quite a new departure. Probably the idea of Switzerland has not been thrown out altogether in vain.
FOOTNOTE:CHAPTER XIV.
THE AIM AND JUSTIFICATION OF LABOUR PROTECTION
The aim and justification of Labour Protection have I think become sufficiently clear in the course of our inquiry. It is now only necessary to recapitulate.
Labour Protection, especially protection by limitation of employment, and protection in occupation, is first and foremost the social care of the present and of all future generations, security against neglect of their spiritual, physical, and family life through the unscrupulous exploitation of wage-labour. Hence Labour Protection is indirectly protection also of the capitalist classes of the future, and therefore far from being unjust, it even acts in the highest interests of that part of the nation which by virtue of the fact of property or ownership is not in need of any special Labour Protection.
In fulfilling its purpose, Labour Protection even goes beyond the work of upholding and strengthening national labour, when it takes the form of internationally uniform Labour Protection such as was lately projected at the Berlin Conference, and such as is becoming more and more the goal of our efforts.
This international Labour Protection is a universal demand of humanity, morality and religion, especially from the standpoint of the Church, like that of international protection of all nations against slavery, but it is also no doubt demanded in the interests of international equilibrium of competition.
The aim of Labour Protection for the worker individually lies far beyond mere industrial protection. Protection of labour extends to the person of individual labourers and their freedom as regards religious education, instruction, learning, and teaching, social intercourse, morality and health, and especially does it afford to every man security of family life.
In this social and individual aim lies its justification, subject to certain conditions. These conditions we have already examined.
The first condition is, that special protection shall only be used to guard against distinct dangers arising out of employment in service. Next, Labour Protection is only justified in dealing with such dangers as cannot or can no longer be adequately guarded against by any or all of the old forms of protection, viz., self-help, family protection, private agencies and non-governmental corporate agencies, or the protection of the regular administrative and judicial authorities, and even with such dangers only so far as is absolutely necessary. And lastly, the extraordinary State protection contained in the several labour-protective enactments must be adapted to the suppression of such dangers altogether.
Bearing in mind these conditions, it will be found on examination of the several measures of Labour Protection, as they appear in the resolutions of the Berlin Conference and in the von Berlepsch Bill, that not one of them oversteps these limits. The labour protective code as already existing, and as projected by government, nowhere stretches its authority beyond the specified point, either in its scope, extension or organisation; at present it rather errs on the side of caution, and in many respects it does not go nearly so far as it might. This also I claim to have shown in the foregoing pages. This fact alone fully justifies the policy of Labour Protection as at present projected by the German government.
It is in nowise intended (as shown in Chaps. IV. to X.) by this protective policy to supplant and replace free self-protection and mutual protection, or the ordinary State protection of common law.
No addition to Labour Protection will be permitted except where special need exists.
In no case shall a larger measure of protection be afforded than necessary. There is no question of treating all and everywhere alike the various classes of industrial wage-labour needing protection. But rather that complete elasticity of treatment is accorded, which is required in view of the variety of needs for protection and of the different degrees of difficulty of applying it; it is this variety which necessitates extraordinary State intervention, extraordinary alike in scope, basis and organisation.
Labour Protection has not, it is true, by any means reached its full development either in aim and scope or in organisation. None of those further demands, however, from various quarters, which I have treated in this book as within the range of discussion overstep in any essential degree the limits imposed on Labour Protection, regarded as special and supplementary intervention of the State.
Even the Auer Motion when carefully examined – if we set aside the general eight hours day and certain special features of organisation, in particular its claim to include in its scope the whole of industry – is not really as extravagant as it appears at first sight; for although indeed it demands complete Labour Protection for all kinds of industrial work, it requires only the application of the same special measures as are also demanded in other quarters, and as I have shown to be justified, except in a few special cases where it calls for more drastic measures.
We have seen also that the policy of Labour Protection does not involve a kind of State intervention hitherto unknown. The State has long afforded regular administrative and judicial protection to the work of industrial wage-service, and has even interfered in a special manner in the case of children, young men, young women and adult women; and for still longer in the case of adult men, by affording protection in the way of limitation of employment, truck protection and protection in occupation, and by affording protection of contract through the Industrial Regulations, applied to non-factory as well as to factory labour. The application of protection by limitation of employment is thus far from being the first exercise of State interference with the hitherto unrestricted freedom of contract. Nothing will be found in the developments of protection here dealt with, that has not long ago been demanded and granted elsewhere, chiefly in England, Austria and Switzerland.
The economic burden imposed upon the nation by Labour Protection, when compared with that of Labour Insurance, which we have already, will be found to be comparatively small. Those measures which call for the greater sacrifices – protection of married women, and regulation of the factory ten hours working-day – are recommended on all sides by way of international uniform regulations.
Freedom of contract will not be impaired, since such adults as are included under Labour Protection stand in special need of protection, and are as incapable of self-defence as minors in common law; we have discussed and proved this contention point by point. This will certainly soon be recognised generally, even by England and Belgium, whose representatives at the Berlin Conference laid such stress on freedom of contract for adults.
An international and internationally administered code for the whole of Labour Protection is strictly to be avoided.
The wider measures of Labour Protection demanded by the Berlin Conference, and the von Berlepsch Bill,16 I conclude therefore to be nothing more than a fully justifiable and harmless corollary and supplement to the Social Policy of the Emperor William II. and of Prince Bismark.
By following in the paths already trodden without ill results by separate countries, long ago by some, only lately by others, in paths therefore which have to a certain degree been explored, this policy will need to be subjected to fewer alterations than that great and noble policy of Labour Insurance which has struck out in entirely new paths, and too often worked in consequence by somewhat unpractical methods.
APPENDIX
Industrial Code Amendment Bill (Germany)[June 1st, 1891].We, William, by the grace of God Emperor of Germany, etc., decree in the name of the Empire, by and with the consent of the Federal Council and Reichstag, as follows: —
Article IAfter § 41 of the Industrial Code shall be inserted:
§ 41aWhere, in accordance with the provisions of §§ 105b to 105h, employment of assistants, apprentices and workmen is prohibited in any trading industry on Sundays and holidays, no industrial business shall be carried on on those days in public sale-rooms.
This provision shall not preclude further restrictions by common law of industrial business on Sundays and holidays.
Article IIAfter § 55 of the Industrial Code shall be inserted.
§ 55aOn Sundays and holidays (§ 105a, 2) all itinerant industrial business, so far as it is included in § 55 (1) 1-3, shall be prohibited, as well as the industrial business of the persons specified in § 42b.
Exceptions may be allowed by the lower administrative authorities. The Federal Council is empowered to issue directions as to the terms and conditions on which exceptions may be allowed.
Article IIIChapter VII. of the Industrial Code shall be amended as follows: —
CHAPTER VIIIndustrial workers (journeymen, assistants, apprentices, managers, foremen, mechanics, factory workers).
I. General Relations§ 105The settlement of relations between independent industrial employers and workers shall be left to voluntary agreement, subject to the restrictions laid down by imperial legislation.
§ 105aEmployers cannot oblige their work people to work on Sundays or holidays.
This, however, does not apply to certain kinds of work mentioned further on. Holidays are determined by the State Governments in accordance with local customs and religious belief.
§ 105bThere shall be no work on Sundays and holidays in mines, salines, smelting works, quarries, foundries, factories, workshops, carpenters’ yards, masons’ and shipbuilders’ yards, brick-fields, and buildings of any kind.
For every Sunday and holiday the workpeople of such establishments must be allowed a rest of at least 24 hours, for two consecutive holdings of 36 hours; and for Christmas, Easter and Whitsuntide of 48 hours. The period of rest must be counted from midnight, and in the case of two consecutive holidays must last till 6 p.m. of the second day. In establishments where regular day and night gangs are employed, the period of rest may commence at any time between 6 p.m. of the preceding week-day and 6 a.m. of the Sunday or holiday, provided that the work is completely suspended for 24 hours from such commencement.
The assistants, apprentices and workpeople in small trades and handicrafts must not be employed on Christmas Day, Easter Sunday and Whit Sunday; on other Sundays and holidays they must not be employed for more than five hours.
By statutory regulation of the parish or municipal authorities, such Sunday work can be further restricted or entirely prohibited for particular branches of trade. For the last four weeks before Christmas, and for particular Sundays and holidays, which, owing to local conditions call for greater activity in trades, the police authorities may order an extension of the hours of work up to ten. The hours of work must be so fixed as to admit of attendance at Divine worship. The hours may be variously fixed for the different branches of trading industry.
§ 105cThe provisions of 105b do not apply:
1. To work which must be carried on without delay in cases of necessity and in the public interest;
2. To the work of keeping the legally prescribed register of Sunday labour;
3. To the work of watching, cleaning and repairing the workshops, required for the regular continuance of the main business or of some other business, nor to any work on which depends the resumption of the full daily working of the business, wherever such work cannot be carried on during working days;
4. To such work as may be necessary in order to protect from damage raw materials or the produce of work, wherever such cannot be carried on during working days;
5. To the supervision of such work as is carried on on Sundays and holidays, in accordance with the provisions of clauses 1 to 4.
Employers must keep an accurate register of the workmen so employed on each Sunday and holiday, stating their number, and the hours and nature of the work. The register must be produced for examination at any time at the request of the local police authorities or of the official specified in § 139b.
If the Sunday employment exceeds three hours, or prevents the workpeople from attending Divine worship, a rest of 36 hours must be given to such workpeople every third Sunday, or they must be free every second Sunday from 6 a.m. to 6 p.m.
Exceptions to the above may be allowed by the lower administrative authorities, provided that the workpeople are not prevented from attending Divine worship on Sundays, and that a rest of 24 hours is granted to then on a week-day in lieu of Sunday.
§ 105dThe Federal Council may make further exceptions to the provisions of § 105b, 1 in certain defined industries, especially in the case of operations which do not admit of delay or interruption, or which are limited by natural causes to certain times and seasons, or the nature of which necessitates increased activity at certain times of the year. The regulation of the work permitted in such business on Sundays and holidays, and the regulation of the conditions on which such work shall be permitted, shall be uniform for all business of the same kind, and shall be in accordance with the provision of § 105c, 3.
The regulations laid down by the Federal Council shall be published in the Imperial Law Gazette, and shall be laid before the Reichstag at the next session.
§ 105eExceptions to the restrictions of work on Sundays and holidays may also be made by the higher administrative authorities in trades which supply the daily necessaries of life to the public, and in those that require increased activity on those days; also in establishments the working of which depends upon the wind or upon the irregular action of water power. The regulation of these exceptions shall be subject to the provision of § 105c, 3.
The procedure on application for permission of exceptions in the case of establishments employing machinery worked wholly or mainly by wind or by the irregular action of water power, shall be subject to the enactments of §§ 20 and 21.
§ 105fIn order to prevent a disproportionate loss or to meet an unforeseen necessity, the lower administrative authorities may also allow exceptions for a specified time to the provision of § 105b, 1.
The orders of the lower administrative authorities shall be issued in writing, and must be produced by the employer for examination in the office of the business at the request of the official appointed for the revision. A copy of the orders shall be hung up inside the place of business in some spot easily accessible to the workers.
The lower administrative authorities shall draw up a register of the exceptions granted by them, in which shall be entered the name of the firm, the kind of work permitted, the number of workers employed in the business, and the number required for such Sunday or holiday labour, also the duration of such employment and the grounds on which it is permitted.
§ 105gThe prohibition of Sunday work may be extended by Imperial Ordinance, with consent of the Federal Council, to other trades besides those mentioned in the Act. These ordinances shall be laid before the Reichstag at the next session. The provisions of §§ 105c to 105f shall apply to the exceptions to be permitted to such prohibition.
§ 105hThe provisions of §§ 135a to 105g do not preclude further restrictions by common law of work on Sundays and holidays.
The Central Provincial Court shall be empowered to permit departures from the provisions of § 105b, 1, for special holidays which do not fall upon a Sunday. The provision does not apply to Christmas, Easter, Ascension Day or Whitsuntide.
§ 105iThe provisions of §§ 105a, 1, 105b to 105g do not apply to public houses and beerhouses, concerts, spectacles, theatrical representations, or any kind of entertainment, nor to carrying industries.
Industrial employers may only exact from their workpeople on Sundays and holidays such work as admits of no delay or interruption.
§ 106Industrial employers who have been deprived of civil rights shall not, so long as they remain deprived of these rights, undertake the instruction of workers below 18 years of age.