CHAPTER VII. EXCEPTIONS TO PROTECTIVE LEGISLATION.
All prohibition of employment and limitations of employment are apparently opposed to the interests of the employers. As long as they are kept within just limits, however, this will not be true generally or in the long run.
The just claims of Capital may be protected by admitting carefully regulated exceptions; but wherever and in so far as employment is opposed to the higher personal interests of the whole population, Capital must submit to the restrictions.
As regards the exceptions, these are in part regular or ordinary, in part irregular or extraordinary. We find examples of both kinds alike in the legislation for restricting the time of working and in legislation for protecting intervals of rest.
Ordinary exceptions to prohibition of employment consist mainly of permission by legal enactment in certain specified kinds of industrial work, of a class of labour which is elsewhere prohibited, e.g. night work for women and young workers. The greater number of cases of prohibition of employment appear in the inverse form of exceptions to permission of employment.
Ordinary exceptions to restriction of employment are provided for partly by legislation, partly by administration, i.e. partly by the Government, partly by the district or local officials.
Wherever in the interests of industry it is impossible to enforce the ordinary protection of times of labour and hours of rest, this is made good to the labourer by the introduction of several (two, three, or four) shifts taking night and day by turns, so that an uninterrupted continuance of work may be possible without any prolonged resting time either in the day or in the night; moreover, the loss of Sunday rest can be compensated by a holiday during the week.
Extraordinary exceptions occur chiefly in the following cases: (a) where work is necessary in consequence of an interruption to the regular course of business by some natural event or misfortune; (b) where work is necessary in order to guard against accidents and dangers; (c) where work is necessary in order to meet exceptional pressure of business.
Exceptions to protection of holidays.
These exceptions are so regulated that in certain industries holiday work is indeed permitted but compensation is supplied by granting rest on working days. The exceptions provided for by the Berlin Conference have already been given. The von Berlepsch Bill admits, if anything, too many exceptions. The Auer Motion permits holiday work in traffic business, in hotels and beer houses, in public places of refreshment and amusement, and in such industries as demand uninterrupted labour; an unbroken period of rest for 36 hours in the week is granted in compensation to such workers as are employed on Sunday.
Switzerland wishes to give compensation in protection of holidays in railway, steamship and postal service, by granting free time alternately on week days and Sundays, so that each man shall have 52 free days yearly, of which 17 shall be Sundays.
Exceptions to prohibition of night work.
The Imp. Ind. Code Amendment Bill (§ 139a, 2, 3) admits ordinary and extraordinary exceptions. The Auer Motion does not entirely exclude such exceptions, as it provides exceptions in traffic business and such industries as “from their nature require night work.” We cannot here enter into details as to the rules on the limitations of exceptions, and as to the enforcement of those rules.
Exceptions to the maximum working-day.
Overtime: Extraordinary exceptions to an enforced maximum working-day consist in permission of overtime; ordinary exceptions consist in the employment of children, women and men, in certain kinds of business, for a longer time than is usual (see [Chapter V.]).
The von Berlepsch Bill assumes a very cautious attitude in the matter of overtime. Extraordinary exceptions in the case of pressure of business are provided for as follows: “In cases of unusual pressure of work the lower courts of administration may, on appeal of the employers, permit, during a period of 14 days, the employment of women above the age of 16 years until 10 o’clock in the evening on every week-day, except Saturday, provided that the daily time of work does not exceed 13 hours. Permission to do this may not be granted to any employer for more than 40 days in the calendar year. The appeal shall be made in writing, and shall set forth the grounds on which the permission is demanded, the number of female workers to be employed, the amount of work to be done, and the space of time required. The decision on the appeal shall be given in writing. On refusal of permission the grievance may be brought before a superior court. In cases in which permission is granted, the lower court of administration shall draw up a specification in which the name of the employer and a copy of the statements contained in the written appeal shall be entered.”
The Auer Motion sets the narrowest limits to admission of overtime, permitting it only in case of interruption of work through natural (elemental) accidents, and then only permitting it for 2 hours at the most for 3 weeks, and only with consent of the “labour-board.”
Both in regulation and administration all these exceptions to protective legislation should be dealt with in a very guarded manner. Moreover they must be enforced on a uniform and widely diffused system, and they ought to afford a real protection to the fair and just employer against his more unscrupulous competitors.
Both these considerations—the strict limitation and uniform administration required for these exceptions—render it imperative that the regulation by law should be, so far as practicable, very careful and minute. Moreover it is requisite that the principle on which the administration has to act in dealing with exceptions shall be laid down as definitely as possible, and further that protective enactments shall be interpreted in a uniform manner by the organs of local government (Bundesrath), and finally that there should be general uniformity of method, both in the instructions given and in the supervision exercised by the intermediate courts of Labour Protection to the local authorities.
Much may be done in the way of effectual limitation of exceptions by dealing individually with the separate kinds of employment, in the matter of Sunday rest and alternating shifts. In the Düsseldorf district it has been proved by experience that by specialising the exceptions, Sunday rest may be granted to a large percentage of the workmen even in the excepted industries themselves (gas works, brick and tile kilns, etc.).
The special instruments of administration for the regulation of exceptions to this kind of protection are the certificate of permission, the entry in the register of exceptions, and the public factory rules.
The industrial inspector is entrusted with the supervision of the exceptions; but the assistance of the employer is very desirable, and is frequently offered, as it is to his interest that the application shall be just and uniform.
The central union of embroiderers in East Switzerland and the Vorarlberg district, e.g. which was formed in 1855, and which now includes nearly all the houses of business, supervises the strict adhesion to the 11 hours rule, by sending special inspectors into the most remote mountain districts, and imposing fines for non-observance to the amount of from 200 to 300 francs (Hitze).