L A B U E 171
extends to "any dispute between an employer and a workman arising out of or incidental to their relation as such." The expression "workman" does not include a domestic or menial servant, but means any person who, being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged in manual labour, whether under the age of twenty-one years or above that age, has entered into or works under a contract with an employer, whether the contract be made before or after the passing of the Act, be express or implied, oral or in writing, and be a contract of service or a contract personally to execute any work or labour. Payment of damages and debts under the Act, as in other cases of judgment debts, is enforceable by imprisonment for a term not exceeding six weeks, only on proof of ability and neglect to pay, whether the proceedings be in the county court or in the court of summary jurisdiction.
Two circumstances show the rapid strides made in a few years in the position of labour in relation to legislation. Lord Elcho's Act in 1867 received the title of "The Master and Servant Act." In eight years that title is silently dropped, and "Employers and Workmen" substituted. In 1867 the prime minister spoke in high terms of eulogy of Lord Elcho's Act as securing valuable rights for workmen. In 1875 the same prime minister, speaking a few weeks after the passing of the Act of that year, remarked that for the first time in the history of the country the employer and employed sat under equal laws.
Although the general tendency of colonial legislation is to follow that of the parent country, where it can be applied, that is not the case in some important British colonies in relation to the enforcement of labour contracts.
In New South Wales, servants, including artificers, journeymen, and handicraftsmen, and all agricultural labourers, as well as domestic servants, are dealt with under a colonial Act of 1857. For not fulfilling a contract, whether by deserting or not entering upon the service, or for other misconduct or ill behaviour, justices upon conviction may impose a fine not exceeding £10. In default of distress, imprisonment, not exceeding fourteen days, or forfeiture of wages then due may follow. Obtaining advances of money after entering into a contract and refusing to go to the place of service, or refusing to perform work to the extent of the advance without reasonable cause, is punishable by direct imprisonment with or without hard labour for any term not exceeding three months. Persons knowingly concealing or employing absconding or absenting servants or persuading them to violate agreements are liable to a penalty not exceeding £10, and in default imprisonment for four teen days. On the other hand wages not exceeding £50 and full costs may be recovered by distress, and in default imprisonment for fourteen days; masters are also liable to a penalty for with holding property of their servants. Independently of these provisions, justices may hear and determine in a summary manner any complaint, difference, or dispute between a servant and his master, and the award may be enforced by cancelling an agreement or imposing a line, and in default of distress by imprisonment not exceeding fourteen days. The power of imprisonment under the Act does not extend to women.
In South Australia, by an Act of 1878 (following in the main the tenor of Lord Elcho's Act, rather than the legislation of 1875), whenever the employer or employed neglects or refuses to fulfil any contract, or the employed neglects or refuses to enter or continue his service or absents himself, or whenever any dispute arises between the parties, the case may be summarily decided by justices, who may order an abatement of wages due, or direct the fulfilment of the contract, with a direction to the party complained against to find security by recognizance or bond with or without sureties; or the contract may be annulled and the amount of wages or compensation apportioned; or, where pecuniary compensation will not, in the opinion of the justices, meet the circumstances of the case, they may impose a fine not exceeding 20. The neglect or refusal to find security for performance of contract may be enforced by imprisonment not exceeding three months.
The Victorian statutes relating to master and servant were consolidated in 1804. Under that Act all agricultural and other labourers and workmen and artisans, as well as domestic servants, were made liable on summary conviction to imprisonment not exceeding three months, or abatement of wages, for breaches of contract or for disobedience or other misconduct or misdemeanour. The like imprisonment was provided for obtaining advances of wages and refusing to serve, and also for wilful or negligent acts involving a destruction of work or materials committed to the workman s charge, in default of payment of damages (limited to £10). Wages and amends for ill-treatment were made recoverable by order.
It is impossible within the limits of this article to follow the different provisions in various colonies affecting the relation of employer and employed. To render a summary of practical value, local peculiarities and exegencies must be borne in mind. Where native or foreign races form a material part of the industrial population, or where changes have occurred in their condition, the facts must be taken into account; for example, the legislation of Jamaica, although now constituted an ordinary British colony, must be considered in relation to the former existence of slavery and to the intermediate status of apprenticeship before its abolition. So in British Guiana, the large number of emigrants from the East Indies, many of them working on the estates under indentures, must not be lost sight of.
With regard to India, that vast area cannot be dealt with as if the industrial population consisted of Europeans, manufacturing in its cities. Although natives are increasingly sharing in the labour and ownership involved in the production of manufactures, the cultivation of the soil forms the basis of the support of two-thirds of the population. The true view of India is that as a whole it is divided into a vast number of independent self-acting organized groups, cultivating, trading, and manufacturing, governed by law made up to a great extent of local usages and customs, and where caste is often merely a name for trade or occupation, the village communities comprising families who are hereditary weavers, potters, blacksmiths, harness makers, and so forth.
The condition of the law in European states at the present time with regard to the enforcement of labour contracts is this. In France contracts of work and service stand on the same footing as other contracts. The breach of such contracts is regarded as a private matter, as the subject of a claim for damages, but not of the application of the criminal law. The recovery of damages is regulated by the Code Napoléon. The juge de paix decides the amount when the sum claimed is under 200 francs, when above that amount the tribunal of first instance. So in Belgium there is no criminal penalty attaching to the breach of a contract of labour; such a contract entitles the aggrieved party, as a general rule, only to pecuniary damages; and the same is the case in the Netherlands, Austria Hungary, Italy, Portugal, Sweden, Norway, and Russia. In Switzerland there is no criminal liability, provided the dereliction of duty involves no consequences injurious to the public welfare or to the life or health of other persons. The performance of contracts, however, in the larger works in Switzerland is secured by the system of "décompte," or portion of wages retained as security by the employer. In Prussia, although in 1869 all the penal regulations previously existing against breaches of contract and wrongful cessation of work on the part of workmen in mills, mines, and metallurgical establishments and in underground quarries and pits were repealed, police laws are, it seems, still capable of being enforced by way of fine, and, in default, by a short imprisonment in some provinces, against agricultural labourers, and against boatmen or workmen engaged in special field or forest work.
Of the United States, the English representative wrote thus to the Foreign Office in 1869: – "There are few countries in which the working man is held in such regard as in the United States of America. The labouring classes may be said to embrace the entire American nation. Every man works for a living, follows a profession, or is engaged either in mercantile or industrial pursuits. As might be expected, it may be said that, as to both parties to a contract for labour and service, they stand upon the mere footing of contract, and such contract is not distinguished from any other contract. The matter does not belong to the province of federal legislation, but to the regulation of each particular State. There has been no legislation, however, making the breach of a contract for labour or services the subject of criminal liability. Contracts of apprenticeship are, nevertheless, enforced by statutory provisions.
We have hitherto dealt with the mode of enforcing contracts of labour. It remains to speak of the extent to which the contracts themselves are controlled.
With reference to the period of service, there is no law directly limiting it. A right even to perpetual service founded on a contract may not perhaps be illegal and void; for, if a man can contract to serve for one year, there seems to be no reason to prevent his contracting to serve for one hundred years if he should so long live, though the courts would be inclined to consider it an improvident engagement, and would not be very strict in enforcing it (Christian). No such perpetual contracts, however, exist in actual practice, and where no time is expressly stipulated or implied the contract is generally construed to endure
