Page:EB1922 - Volume 31.djvu/297

Rh

steward (Obmann) must be elected. Apart from a few details the factory steward has the same rights as the factory council or the workers' and salaried employees' councils.

The factory council is the organ of the whole of the workers in a factory, but it is also an official body (Amt).

As an organ of the workers the factory council safeguards their collective interests and also the interests of individual workers. The interests of the workers collectively are concerned with matters connected with labour and factory management. These two sub- jects must be carefully distinguished. In so far as the factory coun- cil is concerned with matters affecting conditions of labour, it only represents a considerable advance along the lines on which the wage- earners' and salaried employees' committees under the old legalized system had already started. In so far as it deals with questions affecting the business management of the factory it is taking the first step in a new development, the essential principle of which lies in the fact that the worker is henceforth to have a direct interest, not only in matters connected with his work but also in matters connected with the management of the factory, and that the workers collectively are to be entitled to exercise influence requisite for this purpose. The interests of individual members of the whole working staff are protected by the factory council more particularly in cases coining under Sect. 34 of the Statute, according to which, in the case of notice of dismissal being given on the part of the employer, the worker, within 5 days after such notice, may enter a protest by appealing to the workers' or salaried employees' council. This council, if there is reason to believe that the notice of dismissal was unwarranted, may then intervene with the employer on behalf of the worker, or, if an agreement is not reached within one week, it may appeal after a further interval of 5 days to the Conciliation Board.

The factory council exercises the functions of a department of the public service (A ml) in those cases in which duties appertaining to the State are assigned to it, the State having invoked its assistance. Such duties comprise, above all, the vindication of the legal rights and the protection of the interests of the workers. Thus, the factory council must see that, in matters concerning the work of the fac- tory, the decisions of a Conciliation Board, or of any other body to which by consent differences have been submitted, are carried out, and that the statutory regulations and other measures which have been enacted for the benefit of the workers are observed. The council must also devote its attention to the prevention or removal of con- ditions in the factory which involve the danger of accident or are prejudicial to health. It must give its assistance to factory inspectors and other officials occupied with these matters, and must offer suggestion, advice, and information. It must also see to it that police regulations in regard to industrial occupations and regulations framed to prevent accidents are carried out ; and it must appoint one of its members to be present at inquiries into accidents which may be instituted by the employer or by the factory inspector or other competent authority.

In addition to the exercise of these statutory powers the factory council may, in particular cases, exercise special functions by virtue of a mandate conferred upon 'it by the ^persons concerned. Thus, individual workers in a factory may ask the council to act for them. In that case the council acts as the representative of the interested party in the ordinary legal sense of the term. A factory council may also have conferred upon it by a wages contract functions for which the Factory Councils Law did not provide. A way is thus left open for the adaptation of the council to special circumstances and needs. In no case may the statutory powers of this representative body in a factory be withdrawn from it by private agreement between the par- ties concerned.

The workers' demand for a voice in the management of factories arose in the first place from a vague but intense longing for emancipa- tion from the lifeless mechanism of factory routine. The worker wanted to be in a position to shape the conditions of his or her occupation, a thing which had become impossible in the mechanized system and the division of labour which prevails in factories on a large scale. This longing soon took shape in the demand that the assent of a factory council invested with equal rights should be requisite for all dispositions made by the employers. The law as it now stands has accepted the fundamental idea of this councils movement, but has by no means met the demand in full.

A voice in shaping decisions is only possible where right of acting together with the employer is conferred upon the factory council. The council has this right in regard to the issue of regulations re- garding the work, the framing of factory by-laws, the fixing of wages and other conditions of labour. It also has the right of cooperation in laying down the lines to be followed in regard to the engagement of workers, the fixing of penalties and the decisions of the Board of Supervision ' (Aufsichtsrat) to which the factory council has the right to send delegates. It has further the same right to a voice in the case of the dismissal of a member of the representative body of the factory, which can only take place with the consent of the mem- bers of that body. The working regulations of the factory must be mutually agreed upon in all factories employing 20 or more workers,

1 Every limited-liability company in Germany has in addition to the directorate a smaller board of expert business men which ex- ercises control or supervision over the directorate.

whereas formerly these regulations were issued by the authority of the employers alone. Should no agreement be arrived at the matter must be settled by the irrevocable decision of the Conciliation Board. The same applies to the fixing of penalties and the dismissal of members of the representative body of the factory. A voice in the decisions becomes illusory where the representative body of the factory is only able to exercise an influence upon the will of the em- ployer. This influence may be exercised in two ways: in the first place by the workers' right to be heard (A udienzrecht), which means that, in certain cases, the representative body has the right to de- mand that the employer shall listen to what they have to say. In other cases this right may extend still further and enable the repre- sentative body to demand that the employer shall enter into negotia- tions with them, as, for instance, in the case of the engagement of workers and notices of dismissal. Finally, the right to be heard may take the more precise form of a claim to receive information from the employer, so that the latter is obliged to give particulars of any- thing that occurs which may affect the workers' contracts or their general activities. Similarly, the employer may be required to produce the wages books and the necessary proofs that existing wages contracts have been carried out. He may be required to furnish quarterly a report on the position and progress of the business and on the state of the industry in general; further, on the output of the factory and, more particularly, on the labour likely to be needed for it. The employer must likewise, on demand, produce for inspection a balance sheet and a statement of the profit and loss on the factory. The will of the employers can also be influenced by the right of the factory council to bring the employer before a court. The representa- tive body may, in the case of differences, appeal to the Conciliation Board or to any conciliation or arbitration court which may be agreed upon. This right enjoyed by the representative body implies an obligation on the part of the employer to appear before the Conciliation Board. There is no obligation to negotiate, but a verdict may be pronounced, even if the other party has not appeared Board, except in the cases mentioned above (working regulations, etc.), is not binding. The method of arbitration to be observed in the case of engagement of workers and notices of dismissal will be dealt with more particularly below, but it may be remarked here that, in accordance with a legal practice, generally adopted though not unchallenged, the demobilization commissioner is considered to be within his rights in declaring, by means of an administrative order, such arbitral decisions to be of binding force as would other- wise, according to law, not be obligatory.
 * or has not negotiated. It is true that the verdict of the Conciliation

The right to a voice in decisions affecting the engagement of workers and notices of dismissal requires special consideration. Legislation on this point encountered peculiar difficulties. The work- ing classes pressed for unrestricted cooperation in all decisions con- cerning engagements and notices of dismissal. Serious strikes, more particularly of salaried employees and above all of bank clerks, oc- curred in connexion with this question. The employers fought for the maintenance of their absolute freedom as regards the engagement and dismissal of their staffs. The law is based on a compromise between these two demands.

In the first place, as regards the engagement of workers, the em- ployer remains, as hitherto, unrestricted in the choice of his em- ployees. But the Factory Councils Law provides that, as men- tioned above, certain main lines for the engagement of workers may be agreed upon and that the employer shall be bound by them. At the same time the employer is not under any obligation to agree to such lines of action; so that this provision of the law may be rendered nugatory by him, unless the balance of power is such as to compel him to agree to accept general guiding lines for his action. If certain lines have been agreed upon the employer must observe them. If he deviates from them the representative body of the fac- tory may appeal to the Conciliation Board. The Conciliation Board may issue a binding order that, in case of a departure from the course of action agreed upon, the contract of the employee with the employer shall terminate as soon as the decision has come into force, subject to the observance of the legal term of notice.

Of greater and more far-reaching significance than this coopera- tion of the workers' representative_ body in regard to the engagement of workers is the cooperation of this body in cases of dismissal. Sect. 84 of the Factory Councils Law directs that in all industrial estab- lishments having a factory council, the individual worker, in case of dismissal by the employer, has the right to enter a claim within 5 days of the notice of dismissal by appealing to the workers' or salaried employees' council, " (l) if there is ground for the suspicion that the dismissal is due to the worker's sex, to his or her political, military or (religious) denominational activities or to his or her ac- tivities as a trade unionist, or to the fact that he or she does not be- long to some particular political, religious or industrial association, or to some military society ; (2) if notice of dismissal has been given without any reasons being assigned ; (3) if the notice has been given because the worker has refused to undertake permanently other work than that for which he or she was originally engaged ; (4) if the dismissal appears to be an act of unwarrantable severity not justified by the behaviour of the worker or the conditions in the factory."

When an employee has entered a protest with the workers' or employees' council against his dismissal, the council shall endeavour,