LABOUR 173
and Workmen Act 1875, forfeitures on the ground of absence or leaving work cannot, in the case of a child, young person, or woman subject to the provisions of the Factory Acts, be deducted from or set off against a claim for wages or other sum due for work done before such absence or leaving work, except to the amount of the damage (if any) which the employer sustained by reason of such absence or leaving work.
Great evils having arisen in Scotland through the arrestment of wages for debts of labourers, manufacturers, artificers, and other work people, the power to arrest wages earned there not exceeding twenty shillings a-week was in 1870 taken away, and limited in amount where the wages are above that sum. A provision of a statute of the reign of George II., "to prevent oppression of the labourers and workmen employed in any respect in or about making or manufacturing of gloves, breeches, boots, shoes, slippers, wares or goods of that sort," requires the true weight, quantity, or tale to be declared of goods and materials delivered out to be wrought up in those manufactures.
The system of the "livret" (still the law in some European states, although fallen into disuse as no longer in harmony with the direction of modern views), by which it is a condition precedent to a workman entering into a contract, or being engaged by a fresh employer, to produce a document certifying that he has fulfilled his previous engagements, is unknown now in England. The former system of rules stood much on the same footing, and there is something closely resembling it introduced into the rules regulating the employment of drivers of public vehicles in the metropolis. It is only in relation to domestic service that a new employer concerns himself with the antecedents of a servant or with anything beyond the capacity to work; and the former employer in whose interests "livrets" were imposed does not in general deem it worthwhile, with the present abundance of labour in every field of work, to impose any restraint on the departure of a dissatisfied workman. The practical ground of complaint is not so much a workman exchanging employers, as a neglect of work while remaining in service.
The legal remedies at present in existence for breaches of contract have been necessarily stated in the outline of the last statute on the subject of employer and employed. The weak point is the absence in England of any mode by which the performance of contracts of labour can be enforced, as contracts of other kinds can be where damages do not afford a remedy. Lord Elcho's Act of 1867 purposely gave a remedy in the nature of specific performance, and where carefully applied was found to work very well. The commission of 1875 expressly recommended the retention of this power as quite distinct from criminal punishment. Provision for compelling the performance of a contract exists in many countries where any application of criminal law is repudiated. Nevertheless, not so much from any objection on the part of the framers to compulsory performance as from fear of its abuse by the heavy hand (the bane of administrative legislature as of inventive genius), the power is gone. The result is undoubted hardship to employers, particularly to those (and there are many of them) who are themselves workers and entirely dependent on the due performance of contracts by their fellow-workers. That home legislation is defective in this respect may be inferred from the fact that subsequent colonial legislation has given the means of getting labour contracts performed without trenching on the domain of criminal law. As, however, there is little probability of an amendment of home law in the direction indicated, it is to be hoped that compensation for diminished legal remedy will be found in an increased sense of moral responsibility.
Arbitration is frequently employed to settle differences between masters and workmen.
The institution of "conseils de prud'hommes" is known by name as in force in most of the manufacturing districts of France and Belgium and other Continental countries. The council is a recognized tribunal consisting of equal numbers of employers and employed. All disputes between master and workmen, whether as to quality of work or rate of wages, are first submitted to a committee, which sits privately, to endeavour to settle the question amicably and at a nominal expense; failing this, the case is referred to the council, which sits in public once a month, or oftener if required. Though the right of appeal to the regular courts exists, it is seldom resorted to.
In Austria a law of 1869 instituted arbitration courts of this description in every important manufacturing town and district, to settle all disputes respecting wages, continuance of work, fulfilment of contracts, and claims on benefit clubs and relief funds and matters of that kind. Each court of arbitration must be composed of at least twelve and at most twenty-four members, – one half of them employers elected by employers, and the other half workmen elected by workmen, each class voting separately. Workmen sitting on cases judged by these courts are paid by the commune for every day's sitting. In the case of the minor trades, which cannot maintain regular arbitration courts, the trade laws assign the adjudication of all disputes between masters and men in the first instance to the representatives of the trade in which such disputes arise, and, in places where the necessary quorum for that purpose cannot be made up by the local representatives of any particular trade, the deficiency is supplied by a certain number of workmen temporarily appointed by the municipal authorities from amongst the most respectable and intelligent members of their class to act as arbitrators in such cases. Disputes which cannot be settled in this way must be decided by the common law courts; and it is only a court of law which can take cognizance of a claim raised thirty days after the expiration of a contract to which it refers.
In England no such compulsory legislation exists. The old guilds acted as arbitration courts, and, although their decision was practically binding, the guilds were only adapted to deal with small craftsmen acting singly. In modern times the law has been very reluctant to give effect even to voluntary agreements for referring disputes to arbitration, on a notion that to take away the jurisdiction of the ordinary tribunals and to set up another was contrary to settled principles. There are now several statutes, however, for giving legal effect to the awards of arbitrators in trade disputes voluntarily referred to arbitration and sitting in the way pointed out. The most successful arbitrations between employers and employed appear to be under voluntary submissions, in accordance with rules previously agreed to by employers and employed, in particular manufactures, the decisions being acted upon independently of any legislative aid.
Applied to the one pre-eminently important – probably the only – great question, the rate of wages, reference to arbitration is full of difficulties. The difference relates to the future, not to the past. It is an erroneous notion that strikes and lock-outs involve any breach of contract. In former days it may have been that employer and employed refused to carry out a contract on the ground that the other side had first failed in the performance of some condition precedent to the right to call on the other to perform work or to pay for it, as the case might be; but in the present day the disturbance of the previous relationship of employer and employed generally occurs without any such allegation on one side or the other. Thus, in a strike terminated while this article is in the press, the contracts
