The Theory and Policy of Labour Protection. A. Schäffle
the term occurs in the Industrial Code, while at the same time we must not fail to recognise that even the older Industrial Acts, in so far as they referred to wage-labour, were already Labour-protective Acts of a kind.
The limits of wage-labour as affected by the Industrial Code, and of wage-labour as affected by State protection, have this in common, that both extend far beyond wage-service in manufacturing business (industry, in its strict sense). For this reason we must examine into this point a little more closely in order to determine the exact scope of Labour Protection.
In our present Industrial Code the terms “industrial labour” and “industrial establishments” are almost uniformly used in the sense given to them by the German Industrial Code of 1869. Industrial labour is wage-labour in all those occupations within the jurisdiction of the Code.
But the Code gives no positive legal definition of the word “industry.” Both in administrative and judicial reference the word is used loosely as in common parlance, and the Code only particularises certain industries out of those with which it deals as requiring special regulations and special organs for the administration of these special regulations.
According to administrative and judicial usage in Germany, corresponding to customary usage, the word “industry” is now applied to all such branches of legitimate private activity as are directed regularly and continuously towards the acquirement of gain, with the following exceptions: agriculture and forestry (market-gardening excepted), cattle-breeding, vine-growing, and the manufacturing of home-raised products of the soil (except in cases where the manufacturing is the main point and the production of the material only a means towards manufacturing, as in the case of sugar refineries and brandy distilleries).
In spite of this last limitation the meaning of the term “industrial labour,” as used in the Code, extends far beyond the limits of wage-labour in the manufacturing of materials. For the provisions of the Imperial Industrial Code for the protection of labour expressly include, either wholly or partially, mining industries, commerce, distribution, and all carrying industries other than by rail and sea.
But the need of Labour Protection is also felt in certain occupations which are indeed counted as industries in common parlance, but which are expressly excluded from the jurisdiction of the Industrial Code; amongst these are the fisheries, pharmacy, the professions of surgery and medicine, paid teaching in the education of children, the bar and the whole legal profession, agents and conductors of emigration, insurance offices, railroad traffic and traffic by sea, i.e. as affecting the seamen.
Clearly no exception ought to be taken to the extension of Labour Protection to any single one of these branches of industry, in so far as they are carried on by wage-labourers in need of protection. This ought especially to apply to private commercial industries with reference to Sunday rest, and to public means of traffic, in the widest sense of the term, and to navigation. A fairly comprehensive measure of protection for this last branch of work has already been provided in Germany by the Regulations for Seamen of December 27, 1872.
Furthermore, the need of protection also exists in callings which do not fall under the head of industries even in the customary use of the term. Taking our definition of industry as an exercise of private activity for purposes of gain, we clearly cannot include in it the employments carried on under the various communal, provincial and imperial corporate bodies, at least such of them as are not of a purely fiscal nature, but are directed towards the fulfilment of public or communal services, not even such as are worked at a profit. There is clearly, however, a necessity for protection in government work, and this has already been recognised (cf. the von Berlepsch Bill, art. 6, § 155, 2, Appendix).
The legislative machinery of Labour Protection is not confined to the Industrial Code. There are two ways of enacting such protection: extra protection going beyond the ordinary Industrial Regulations may be enacted by way of amendments or codicils to their ordinary protective clauses, or on the other hand it may be lodged in special laws and enactments, to be worked by specially constituted organs. The latter method has to be followed in the case of municipal or State-controlled means of traffic. In Germany, Labour Protection in mining industries is supplied by the Industrial Code, with special additions however in the form of Mining Acts to designate the scope of the protection and the means through which it works. There are, moreover, also special Acts, such as those which apply to the manufacture of matches.
All wage-earners, not only those protected by the Industrial Code, but also those protected by special acts and special organs, are included in that industrial wage-labour which comes within the scope of protective legislation. By industrial wage-earners we mean therefore all such wage-earners as need protection in the dependent relations of service, whether such be enumerated in the Industrial Code or by definition expressly excluded from it.
This is the conclusion at which the Berlin Conference also finally arrived. The report of the third commission (pp. 77 and seq.) states: “Before concluding its task, the third commission has deemed it advisable to define the strict meaning of certain terms used in the Resolutions adopted, especially the phrase ‘industrial establishments’” (établissements industriels). Several definitions were proposed. First the delegate from the Netherlands proposed the following definition: “An industrial establishment is every space, enclosed or otherwise, in which by means of a machine or at least ten workmen, an industry is carried on, having for its object the manufacture, manipulation, decoration, sale or any kind of use or distribution of goods, with the exception of food and drink consumed on the premises.”
The proposal of the Italian delegates ran as follows: “Any place shall be called an industrial establishment in which manual work is carried on with the help of one or more machines, whatever be the number of workmen employed. Where no engine of any kind is used, an industrial establishment shall be taken to mean any place where at least ten workmen work permanently together.”
A French delegate, M. Delahaye, read out the following suggestion, which he proposed in his own name: “An industrial establishment denotes any house, cellar, open, closed, covered or uncovered place in which materials for production are manufactured into articles of merchandise. Moreover, a certain number (to be agreed on) of workmen must be engaged there, who shall work for a certain number (to be agreed on) of days in the year, or a machine must be used.”
The Spanish delegate stated that he would refrain from voting on the question, because he was of opinion that instead of using the term “industrial establishment,” it would be better to say “the work of any industries and handicrafts which demand the application of a strength greater than is compatible with the age and physical development of children and young workers.” According to his opinion no weight ought to be attached to the consideration whether the work is carried on within or outside of an establishment. After a discussion between the delegates from France, Belgium and Holland, and after receiving from the Luxembourg delegate a short analysis of foreign enactments on this point, the Committee unanimously adopted a proposal made by the delegates from Great Britain, and supported by Belgium, Germany, Hungary, Luxembourg, and Italy. The proposal was as follows: “By ‘industrial establishments’ shall be understood those which the Law regulating work in the various countries shall designate as such whether by means of definition or enumeration.”
A consideration of the discussions raised in paragraphs 1 to 5 results in the following definition of Labour Protection: the extraordinary protection extended to those branches of industrial wage-labour which claim, and are recognized as requiring, protection against the dangers arising out of service relations with certain employers, such protection being exercised by special applications of common law, punitive and administrative, either through the regular channels or by specially appointed administrative, judicial, and representative organs.
The Resolutions of the Berlin Conference, and the protective measures submitted to the German Reichstag early in the year 1890, have, as we shall find, strictly confined themselves to this essentially limited definition of Labour Protection.
It appears as though hitherto no clear theoretical definition of the idea of Labour Protection has been forthcoming. But the necessity for drawing a sharp distinction at least between Labour Protection and all other kinds of care