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[CHALLENGE] Repeal "Protected Working Leave"

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Merni
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[CHALLENGE] Repeal "Protected Working Leave"

Postby Merni » Thu May 13, 2021 8:57 pm

Sorry for the late and quickly put-together challenge, this proposal only came to my notice a few hours ago. The proposal should be at vote in two days.

Target text: (527 GA)
The World Assembly,

Understanding the importance of an economically and socially secure working class to long-term economic growth,

Believing that said security does not need to be mutually exclusive with the decision to raise a family or the need to maintain good health, and

Wishing to ensure that working people in all member nations have access to paid leave and job security in order to care for themselves and their loved ones, without unduly disrupting the operations of their employers, hereby:

  1. Defines for the purposes of this resolution:
    1. a "worker" as any individual bound by a contract to perform work or services for an employer, whose employment contract mandates the work or services be performed specifically by that worker, involves an obligation for the worker to perform work and the employer to provide it, and implies the employer having some degree of control over the manner in which the work is performed; and
    2. "paid leave" as time during which a worker is not required to perform the work or services specified in their employment contract and receives:
      1. compensation sufficient to financially support themselves and their dependents, to be provided by the government of a member nation;
      2. all employment-related benefits which would otherwise be provided to that worker, to be provided by their employer; and
      3. the guaranteed ability to return to the same or a comparable job after the conclusion of paid leave, should their employer reasonably be able to provide such;
  2. Declares that member nations must provide workers who request such with a reasonable duration of paid leave to the extent necessary to adequately service any of the following conditions:
    1. to care for a new child due to childbirth, adoption, or placement of said child in foster care should the child require such care;
    2. to care for a seriously ill or physically or mentally disabled spouse, child below the age of majority, parent, grandparent, or dependent should they require such care; or
    3. to recover from their own serious illness;
  3. Forbids employers from discriminating or retaliating against workers for requesting or taking paid leave pursuant to section 2 of this resolution; such retaliation including:
    1. not returning said workers to the same or a comparable job;
    2. terminating employment;
    3. reducing compensation or benefits; or
    4. disciplining said workers;
  4. Requires that workers:
    1. give their employer reasonable notice in the event of a foreseeable birth or adoption; and
    2. alert their employer of serious health conditions that are the reason for their requesting paid leave if practicable;
  5. Clarifies that:
    1. employers may not impose unnecessarily onerous conditions on the granting of paid leave;
    2. any additional conditions by an employer on the granting of paid leave are to be implemented and enforced at the employer's expense;
    3. member nations may place the burden of providing financial compensation to workers over the duration of paid leave on said workers' employer should the employer be capable of providing such without significant financial strain; and
    4. employers, member nations, and World Assembly resolutions may implement policies granting workers more expansive paid leave than provided for by this resolution.


Repeal text:
The General Assembly,

Applauding the intent of GAR #527 "Protected Working Leave" to provide economic and social security to the working classes of member nations; yet

Convinced that the current implementation of these social securities and economic protections in GAR #527 thwarts the resolution's intent;

Hereby finds the following:

  1. GAR #527 speaks of "a reasonable duration of paid leave" in Clause 2, and creates the possibility for workers to remain on paid leave for disproportionately extended periods of time, because of the imprecise and vague terminology in the list of conditions that it provides. For instance, care for "a seriously ill or physically or mentally disabled spouse, child below the age of majority, parent, grandparent, or dependent" as per Clause 2b, who due to the nature of their illness would be incapable of fulfilling their basic needs independently, will necessarily, and thus reasonably, envelop that patient's entire lifespan, especially when the nature of their illness continues to decrease that patient's ability to survive on their own.

  2. The vague and imprecise terminology, as noted under Clause 1 of this resolution, is present throughout the entirety of GAR #527, with examples being: "reasonably be able to provide such" in Article 1.b.iii, "serious illness" in Article 2c, "reasonable notice" in Article 4a, "serious health conditions" in Article 4b, "unnecessarily onerous conditions" in Article 5a, and "without significant financial strain" in Article 5c. This imprecise and vague terminology creates large vacuums wherein subjective interpretations can thrive, and undermines the security and protection the target resolution seeks to establish. As such, GAR #527 is too unwieldy a tool because of its imprecision and ambiguity to appropriately cover the technical details of 'paid leave' as an aspect of employment law.

  3. The definition of 'worker' in the target resolution includes employees on time-limited contracts, as it merely speaks of "bound by a contract" without differentiating between the perpetuity or non-perpetuity of such a contract. Workers on time-limited contracts are employed for a brief, limited duration to either fill-in for a worker who is on leave, or for specific employment contracts regarding one-time events such as a census count. This lack of differentiation in GAR #527 regarding the timely nature of contracts would allow an employee on a time-limited contract to file for paid leave on the first day of their employment, and remain on paid leave for the entire duration of their employment, which would create a significant hardship for employers in turn.

  4. Under GAR #527's Clause 5c, member states can pass the costs of paid leave onto employers "capable of providing such without significant financial strain". However, the imprecise and vague nature of the phrasing of that condition creates too much room for subjective interpretation, and could force smaller businesses to shoulder the same burdens as large corporations, if an analysis would deem the former to be able to do so on paper, while in reality circumstances would be different. This would lead to a greater risk of bankruptcy of smaller businesses, which in turn creates social and economic instability for both the business owners in question, as well as the other workers in their employ.

And therefore, the General Assembly repeals GAR #527 "Protected Working Leave".


Rule violated: Honest Mistake

Arguments:
  • Clause 4 of the repeal: If requiring a business to shoulder the costs of paid leave would lead to a (significantly greater) "risk of bankruptcy" for that business (as alleged by the repeal), then it would necessarily be a "significant financial strain", and thence by the target's provisions member states cannot require the business to take on the said costs.
  • Clause 3 of the repeal: An employee who "file[s] for paid leave on the first day of their employment, and remain[s] on paid leave for the entire duration of their employment" is not asking for a "reasonable duration" of paid leave as required by the target resolution.
  • Similarly (Clause 1 of the repeal), I contend that an employee who files for paid leave for a "disproportionately extended periods of time", such as for a disabled or elderly person's "entire lifespan", is not asking for a "reasonable duration" of paid leave. The repeal makes the argument that the need for care would reasonably envelop a patient's entire lifespan. This does not necessarily mean that a particular worker would reasonably require paid leave for this entire duration. (Such a worker who needs to care for another person on their own all the time would in my opinion not be compatible with full-time employment that requires them to be present in person, but this is not very relevant.)

Edit: Here are my comments on the proposal thread.
Last edited by Merni on Thu May 13, 2021 9:02 pm, edited 3 times in total.
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Postby Daarwyrth » Fri May 14, 2021 2:43 am

Here I would like to provide my counter-arguments, which I have also posted in the original thread on this repeal proposal.

Regarding the first argument on Clause 4: Yet that is a subjective interpretation of the word "reasonable". Do you see how that is a recurring theme? That everytime we speak of "reasonable" we fill it in with what we consider to be reasonable? It is based on a subjective perception of affairs which shouldn't be allowed to stand at the centre of employment law. And regarding the smaller businesses and larger corporations, it's not the big sweeping changes, but the smaller ones that keep on adding. Compare a corporation like EA to the small family grocery store on the corner of the road. If an employee files for paid leave with the former, there is not significant financial strain. Yet compare that now to 1 worker who goes on paid leave at that corner store, where there may be only a handful of employees working there. A single employer reasonably shouldn't be too much of a financial strain, yet the impact on the corner store will be much greater than on EA. And imagine in addition there are other factors that contribute to that store having a hard time, then the single employee going on paid leave might not seem to onerous at all, while causing problems on the inside through a cascade of smaller issues. Yet all of that could be avoided if the subject was handled with a differentiation in mind, where larger corporations are subjected to stricter conditions, and smaller corporations still to strict ones as well, but tailored to the size and scope at which they function. That is very easily doable in a resolution such as this, but apparently there was no will for that in this case (for whatever reason).

Regarding argument 2 on Clause 3: Yet that's your perspective of what reasonable is. A worker on a time-limited contract who believes themselves to have legitimate reasons to remain on paid-leave for the entire duration views their situation to be entirely reasonable. Say their spouse or child or someone else they take care for had a terrible accident and needs constant care. Would it not be reasonable for them to file for paid-leave for the entire duration of their employment contract if it happened to happen at the same time? Under GAR #527, such cases can happen in other situations as well, because the wording is nebulous and vague in so many cases. This wouldn't become an issue if there was simply a clear and precise approach to the conditions.

Regarding argument 3 on Clause 1: So you're saying taking care for someone who is incapable of seeing to their basic needs independently doesn't fall under "reasonable duration"? Imagine someone with Alzheimer's, with dementia, or with ALS. Those illnesses can render a person incapable of feeding themselves, of cleaning themselves etc. especially when their disease has progressed to an advanced point. Yet despite that, those individuals still can live for many years. How is it not reasonable to have to take care of a mother, father, a child or spouse who suffers from such an illness that prevents them from seeing to their basic needs independently? Where care for that patient is necessary? Something that is necessary is implicitly reasonable.
Last edited by Daarwyrth on Fri May 14, 2021 2:46 am, edited 1 time in total.
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Postby Merni » Fri May 14, 2021 4:52 am

Daarwyrth wrote:Here I would like to provide my counter-arguments, which I have also posted in the original thread on this repeal proposal.

Regarding the first argument on Clause 4: Yet that is a subjective interpretation of the word "reasonable". Do you see how that is a recurring theme? That everytime we speak of "reasonable" we fill it in with what we consider to be reasonable? It is based on a subjective perception of affairs which shouldn't be allowed to stand at the centre of employment law. And regarding the smaller businesses and larger corporations, it's not the big sweeping changes, but the smaller ones that keep on adding. Compare a corporation like EA to the small family grocery store on the corner of the road. If an employee files for paid leave with the former, there is not significant financial strain. Yet compare that now to 1 worker who goes on paid leave at that corner store, where there may be only a handful of employees working there. A single employer reasonably shouldn't be too much of a financial strain, yet the impact on the corner store will be much greater than on EA. And imagine in addition there are other factors that contribute to that store having a hard time, then the single employee going on paid leave might not seem to onerous at all, while causing problems on the inside through a cascade of smaller issues. Yet all of that could be avoided if the subject was handled with a differentiation in mind, where larger corporations are subjected to stricter conditions, and smaller corporations still to strict ones as well, but tailored to the size and scope at which they function. That is very easily doable in a resolution such as this, but apparently there was no will for that in this case (for whatever reason).

- The word "reasonable" appears neither in my argument on clause 4, nor in that clause itself, nor in the relevant clause 5c of the target.
- I don't see why clause 5c or anything in the target prevents handling the matter with "differentiation in mind" as you explain. "A single employe[e] reasonably shouldn't be too much financial strain" depends on the situation of the business, as you point out, and I see no reason why member states would not take this into account.

Regarding argument 2 on Clause 3: Yet that's your perspective of what reasonable is. A worker on a time-limited contract who believes themselves to have legitimate reasons to remain on paid-leave for the entire duration views their situation to be entirely reasonable. Say their spouse or child or someone else they take care for had a terrible accident and needs constant care. Would it not be reasonable for them to file for paid-leave for the entire duration of their employment contract if it happened to happen at the same time? Under GAR #527, such cases can happen in other situations as well, because the wording is nebulous and vague in so many cases. This wouldn't become an issue if there was simply a clear and precise approach to the conditions.

No, I don't believe that is reasonable, myself, to ask a business to pay leave to a contracted worker who does no work at all for them. I suppose it will be up to GenSec and others to decide if my interpretation is valid.

Regarding argument 3 on Clause 1: So you're saying taking care for someone who is incapable of seeing to their basic needs independently doesn't fall under "reasonable duration"? Imagine someone with Alzheimer's, with dementia, or with ALS. Those illnesses can render a person incapable of feeding themselves, of cleaning themselves etc. especially when their disease has progressed to an advanced point. Yet despite that, those individuals still can live for many years. How is it not reasonable to have to take care of a mother, father, a child or spouse who suffers from such an illness that prevents them from seeing to their basic needs independently? Where care for that patient is necessary? Something that is necessary is implicitly reasonable.

It is perfectly reasonable that such a person would need care perhaps for their entire lifespan. However, this does not necessarily mean that a single individual (who is otherwise employed; i.e. not a person whose job itself is caring for such person) is required to take care of that person continuously and solely, to the extent that they request paid leave for that entire duration and is rendered incapable of carrying out the work to which they are employed. If that is the case, then I don't believe such a "disproportionately extended" period of paid leave is a reasonable duration.
Last edited by Merni on Fri May 14, 2021 4:55 am, edited 1 time in total.
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Postby Daarwyrth » Fri May 14, 2021 5:41 am

Merni wrote:I suppose it will be up to GenSec and others to decide if my interpretation is valid.

As I stand by my arguments, I agree with this sentiment, and will wait for the ruling of the GenSec, and if ruled legal, await the verdict of the vote in General Assembly.
Last edited by Daarwyrth on Fri May 14, 2021 5:41 am, edited 1 time in total.
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Postby Bananaistan » Sat May 15, 2021 11:54 am

Merni wrote:Clause 4 of the repeal: If requiring a business to shoulder the costs of paid leave would lead to a (significantly greater) "risk of bankruptcy" for that business (as alleged by the repeal), then it would necessarily be a "significant financial strain", and thence by the target's provisions member states cannot require the business to take on the said costs.

This is the strongest point of the challenge. But I think the overall point of conditions on paper not necessarily being equal to conditions in reality. My RL experience is of many fundamentally sound businesses ending up in serious difficulties if, say, a major debtor can't pay. Up until the point that the debt goes bad, the business might be stuck for cash but would have a strong balance sheet. Throw in government mandated payments to an absent employee, you have a greater risk of bankruptcy.

At worst it falls within the allowable exaggerations and embellishments section of the HM rule.

Merni wrote:Clause 3 of the repeal: An employee who "file[s] for paid leave on the first day of their employment, and remain[s] on paid leave for the entire duration of their employment" is not asking for a "reasonable duration" of paid leave as required by the target resolution.

The "reasonable duration" is qualified in the target by "to the extent necessary to adequately service ..." etc. You could imagine care of "a seriously ill or physically or mentally disabled spouse etc" could last many years. And the law does what the law says - there is nothing in the target that says this provision applies only to full time workers after a certain time period of service.

Merni wrote:Similarly (Clause 1 of the repeal), I contend that an employee who files for paid leave for a "disproportionately extended periods of time", such as for a disabled or elderly person's "entire lifespan", is not asking for a "reasonable duration" of paid leave. The repeal makes the argument that the need for care would reasonably envelop a patient's entire lifespan. This does not necessarily mean that a particular worker would reasonably require paid leave for this entire duration. (Such a worker who needs to care for another person on their own all the time would in my opinion not be compatible with full-time employment that requires them to be present in person, but this is not very relevant.)

See above regarding "to the extent necessary".

The repeal is legal IMO.
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Postby Merni » Sat May 15, 2021 9:19 pm

Bananaistan wrote:
Merni wrote:Clause 3 of the repeal: An employee who "file[s] for paid leave on the first day of their employment, and remain[s] on paid leave for the entire duration of their employment" is not asking for a "reasonable duration" of paid leave as required by the target resolution.

The "reasonable duration" is qualified in the target by "to the extent necessary to adequately service ..." etc. You could imagine care of "a seriously ill or physically or mentally disabled spouse etc" could last many years. And the law does what the law says - there is nothing in the target that says this provision applies only to full time workers after a certain time period of service.

My interpretation is that the duration both has to be "reasonable" in itself and extend to the "extent necessary to adequately service ...". In this case only the second requirement is satisfied. (And as pointed out by Cretox and myself on Discord, adequately servicing doesn't necessarily mean personally providing all the care; it could mean finding a care home, or applying for state benefits that are enough to take care of the person without needing the salary from employment, or something else as appropriate.)
Last edited by Merni on Sat May 15, 2021 9:19 pm, edited 1 time in total.
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Postby Araraukar » Sun May 16, 2021 12:27 am

Am I completely misremembering (without checking) that these points were made in the original drafting thread too, and dismissed by the author? That is, the reasonableness was intentionally ignored by author, hence the repeal claim is valid.
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Postby Daarwyrth » Sun May 16, 2021 1:13 am

Merni wrote:
Bananaistan wrote:The "reasonable duration" is qualified in the target by "to the extent necessary to adequately service ..." etc. You could imagine care of "a seriously ill or physically or mentally disabled spouse etc" could last many years. And the law does what the law says - there is nothing in the target that says this provision applies only to full time workers after a certain time period of service.

My interpretation is that the duration both has to be "reasonable" in itself and extend to the "extent necessary to adequately service ...". In this case only the second requirement is satisfied. (And as pointed out by Cretox and myself on Discord, adequately servicing doesn't necessarily mean personally providing all the care; it could mean finding a care home, or applying for state benefits that are enough to take care of the person without needing the salary from employment, or something else as appropriate.)

Then this should have been specified in the text of the resolution. I completely agree with Bananaistan here in that "the law does as the law says", and as you said yourself, it is your personal interpretation that you base the argument upon. Yet your interpretation isn't one on one what the wording of the resolution says, as the wording of the resolution is simply "member nations must provide workers who request such with a reasonable duration of paid leave to the extent necessary to adequately service any of the following conditions".

Then, in the conditions it goes on to say, among others: "to care for a seriously ill or physically or mentally disabled spouse, child below the age of majority, parent, grandparent, or dependent should they require such care". The text of the resolution is clear, it specifies "to care for", not "to find care for" or "ensure care is provided to". The text of the resolution clearly states "to care for". As such, I see no honest mistake in my argument here, as I simply argue against what the text of the resolution itself says.
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Postby Imperium Anglorum » Sun May 16, 2021 3:38 am

"Adequately service" doesn't mean "appoint someone else to do something", it means "do it yourself". Otherwise, it opens policies unintended. Eg the amount of time necessary to adequately service your newborn's health is literally zero because your spouse could do it in your stead. Merni's "reasonable" argument begs the question of what is reasonable, the interpretation in which the conditions provided define reasonable itself should be preferred formalistically.

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