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INDUSTRIAL LAW

CHAPTER I

THE SCOPE AND DEFINITIONS OF INDUSTRIAL LAW

INDUSTRIAL LAW is a non-technical term almost equivalent to what lawyers call The Law of Master and Servant; it is not exactly equivalent, because industrial law is not concerned with quite all classes of 'servants,' and includes certain persons who can be described as ' workers,' but not as servants. For instance, the relationship between a great railway company and its general manager comes within the law of master and servant, but not within the scope of industrial law. On the other hand, the cottager in a remote district who buys wool from a shop-keeper in the markettown for the purpose of knitting it into stockings, and whose only available market for the finished article is the shop from which the wool was bought, is not technically a servant of the shop-keeper; their relationship is that of buyer and seller, but it is nevertheless within the purview of industrial law.

A few years ago the scope of industrial law could have been readily indicated by a reference to the workingclasses' or to 'workmen.' The general manager would admit that he was a servant of the railway company, but he would not like to be called a workman. In other words, until quite recently no legislation was considered as industrial unless it dealt with workmen in its ordinary sense of manual workmen. At the end of last century the test of manual labour was being abandoned; for example, certain

sections of the Truck Act, 1896, were applied to shopassistants, and the Workmen's Compensation Act, 1897, dealt with persons employed in specified undertakings, "whether by way of manual labour or not," though as a matter of fact very few persons employed otherwise than in manual labour would be likely to come within its provisions. Within the last ten years the Workmen's Compensation Act, 1906, and Part I. of the National Insurance Act, 1911, have abandoned the test of manual labour altogether below certain income limits, though retaining it above the limit. In other words, the scope of industrial legislation now covers both manual labour and service of any kind remunerated on a comparatively low scale. There is a second point of some social and legal importance, and that is the position of persons who, though theoretically' independent contractors' or purchasers of material, are substantially in the position of servants and wage-earners, and who have been shown by experience to need the same sort of protection as wageearners. It has been thought expedient to bring these persons within the protection of the Truck Acts and the Trade Boards Act.

Questions of scope can be conveniently grouped under three headings:

(A) Classifications based on the legal definition of a contract of service.'

(B) Classifications dependent on general terms such as 'manual labour' or 'shop-assistants,' or dependent on the amount of wages or salary paid.

(C) Classifications dependent on references to particular trades.

One or two examples will make this plainer. A person comes within the scope of the Workmen's Compensation Act if (A) he works under a contract of service and is not an outworker, and (B) is either a manual worker or his remuneration is less than £250 a year. It is immaterial at what trade he is working.

A person comes within the unemployment sections of the National Insurance Act (A) if he works under a contract of service, (B) if he is employed wholly or mainly by way of

manual labour, and (C) if he is employed in one of the seven trades enumerated in the 6th Schedule to the Act.

We can now examine these headings in more detail.

(A) CLASSIFICATIONS BASED ON CONTRACTS Of Service, AND RELATIONSHIPS EQUIVALENT THERETO

A servant is a person who for remuneration agrees to work according to the orders of another. There are various relationships akin to that of master and servant, and the dividing line is sometimes hard to find. The "independent contractor" who himself works is a good example. For example, a firm of decorators undertake to paint my house, the firm supervising the work in the ordinary way; the firm and the men engaged in painting the house are not in my service. A man asks me for half a day's work, and I set him painting an outhouse; he is my servant. Midway between these cases comes that of a man who agrees to get my house painted for a fixed price, and who is prepared to work himself, though he is free to bring in other labour if he please. He may or may not be my servant. The chief tests, apart from statute, seem to be: liability to do the work personally, submission to the orders of the person giving out the work, and exclusive service for such person.

Three important Acts, viz. the Employers and Workmen Act, 1875, the Employers' Liability Act, 1880, and the Truck Acts, 1831-1896, have a common definition of workman, which runs as follows: "The expression' workman' does not include a domestic or menial servant, but save as aforesaid 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 21 years or above that age, has entered into or works under a contract with an employer, whether the contract be express or implied, oral or in writing, and be a contract of service or a contract personally to execute any work or labour." This excludes independent contractors, unless they are bound to give their personal labour.

Under the Workmen's Compensation Act, 1906, 'work

man,' with certain exceptions, means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work, or otherwise, and whether the contract be expressed or implied, is oral or in writing.' Outworkers are expressly excluded.

Part I. of the National Insurance Act, 1911, relates to the following general classes: (a) employment under any contract of service or apprenticeship, written or oral, whether expressed or implied, and whether the employed person is paid by the employer or some other person, and whether under one or more employers, and whether paid by time or by the piece, or partly by time and partly by the piece, or otherwise, or except in the case of a contract of apprenticeship, without any money payment; (b) employment as an outworker.

There is a very elaborate definition of an outworker which is probably restricted by the implication contained in the term employment,' that the person to whom work is given out must necessarily take some personal part in doing the work.

Part II. of the National Insurance Act defines' workman' as any person of the age of 16 or upwards employed wholly or mainly by way of manual labour, who has entered into or works under a contract of service with an employer, whether the contract is expressed or implied, is oral or in writing, but does not include an indentured apprentice.

In the Factory and Workshop Act, 1901, the classification is based on differences between factories and workshops, and textile and non-textile factories, etc., and the word requiring definition is not so much the word 'employed' as the phrase 'employed in.' Sections 152 and 158, which deal with this point, are as follows: "A woman, young person, or child who works in a factory or workshop, whether for · wages or not, either in a manufacturing process or handicraft, or in cleaning any part of the factory or workshop used for any manufacturing process or handicraft, or in cleaning or oiling any part of the machinery, or in any kind of work whatsoever incidental to or connected with the manufacturing process or handicraft, or connected with the article made or other

wise the subject of the manufacturing process or handicraft therein, shall, save as otherwise provided by this Act, be deemed to be employed therein within the meaning of this Act."

Then follows a provision as to apprentices (who are employed under a condition that they shall be taught), to the effect that "an apprentice shall be deemed to work for hire," and, lastly, there is the exclusion of "any young person being a mechanic, artisan, or labourer, working only in repairing either the machinery in or any part of a factory or workshop."

On much the same lines are the phrases used in the Trade Boards Act, 1909, such as ' workers in the trade,'' all persons employed in the trade,'' all persons employing labour in the trade,' without any general definition of the terms 'worker,' or 'employ,' or 'labour,' although Section 9 contains a special definition of employer, as given below.

The Acts which, in addition to applying to persons working under contracts of service, also apply to persons working under certain contracts which are technically contracts of sale and purchase, or contracts for work and material, or similar contracts not in law contracts of service, are the Truck Acts and the Trade Boards Act. Section 10 of the Truck Amendment Act, 1887, provides that "where articles are made by a person at his own home, or otherwise, without the employment of any person under him except a member of his own family, the principal Act (Truck Act, 1831) and this Act shall apply as if he were a workman, and the shopkeeper, dealer, trader, or other person buying the articles in the way of trade were his employer, and the provisions of this Act with respect to the payment of wages shall apply as if the price of an article were wages earned during the seven days next preceding the date at which any article is received from the workman by the employer." This section applies only to articles under the value of £5, knitted or otherwise manufactured of wool, worsted, yarn, stuff, jersey, linen, fustian, cloth, serge, cotton, leather, fur, hemp, flax, mohair, or silk, or of any combination thereof, or made or prepared of bone, thread, silk, or cotton lace, or of lace made of any mixed materials.

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