MEMORANDUM ON THE OBJECTS OF THE

TRANSNET PENSION FUND AMENDMENT BILL, 2006

 

            BACKGROUND

 

.1.                       In 1990 the Transnet Pension Fund was established in terms of the Transnet Pension Fund Act, 1990 (“the Act”), and assumed liability for the liabilities of the disestablished New Railways and Harbours Superannuation Fund and the Railways and Harbours Pension Fund for Non-White Employees.  All employees of Transnet were obliged to belong to the Transnet Pension Fund, a defined benefit pension fund. 

 

.2.                       In 2000 the Act was amended to establish the Transnet Second Defined Benefit Fund to which the then liabilities of the Transnet Pension Fund in regard to its pensioners were transferred.  It was also amended to empower Transnet to establish new funds for its employees and Transnet exercised that power by establishing the Transnet Retirement Fund, a defined contribution pension fund.   Most employees of Transnet voluntarily transferred from the Transnet Pension Fund to the Transnet Retirement Fund (effective 1 November 2000) and the Transnet Pension Fund has been closed to new members since then.  It now has only some 12,000 members, including pensioners who retired after the establishment of the Transnet Second Defined Benefit Fund.

 

.3.                       The Transnet funds are all pension funds as contemplated in paragraph (a) of the definition of “pension fund” in the Income Tax Act, 1962 because they were established in terms of specific statutes other than the Pension Funds Act.  This means that, when a member leaves employment, he or she is entitled to have his or her lump sum benefits taxed on the basis that that portion of the benefit attributable to membership prior to 1 March 1998 will not be subject to tax.  The special tax status of the benefits of members with pre-March 1998 service cannot be protected in a fund other than another “paragraph (a)” fund.

 

.4.                       Transnet is in the process of disposing of its non-core assets.  This entails the transfer of the shares in some of its companies (including SAA) to the State or to private sector entities, and the transfer of some of its businesses either to national government business enterprises (such as the transfer of the Metrorail business to the South African Rail Commuter Corporation) or to private sector entities (such as the transfer of the internal audit business of Transnet to Ernst & Young).

 

.5.                       Unions representing employees affected by these disposals have urged Transnet and the Department of Public Enterprises to take measures to minimise insofar as may be possible any adverse impact that the disposals may have in relation to the retirement savings of those employees.  To this end Transnet and the DPE have agreed, subject to the condition that such measures do not fundamentally impact upon the efficacy of its restructuring exercise to allow transferring employees and pensioners the option of retaining membership in the Transnet funds.  The Transnet Pension Fund Act requires amendments to support these provisions and is accordingly required to be tabled at Parliament.

 

.6.                       Numerous amendments are required to the provisions of the Act relating to the Transnet Pension Fund because there are many existing statutory provisions relating to it.  Fewer amendments will be required in relation to the Transnet Retirement Fund because the rules of that fund provide for the fund’s governance and the benefits payable by and contributions payable to the fund.

 

            OBJECTS

 

The objects sought to be achieved through the enactment of the Bill are –

 

.1.                       to amend the Act with retrospective effect to 11 November 2005. This date is proposed for consistency purposes as it is the date used to amend the Transnet Retirement Fund rules and it will be the date from which the Transnet Pension Fund rules will be amended.;

 

.2.                       to transform the Transnet Pension Fund into a “multi-employer” (umbrella) pension fund for employees of Transnet and for employees of only those State or national government business enterprises (“SOE Employers”) to which the shares of the companies in which those employees were employed, or to which businesses in which those employees were employed by Transnet, were transferred and accordingly to rename the fund “the Transport Pension Fund” [ sections 1(20) and 5(5)];

 

.3.                       to explicitly permit the continued membership of the Transport Pension Fund or the Transnet Retirement Fund of persons who were members of the fund immediately prior to the sale of the respective shares or businesses, to SOE Employers and who are still employees or retired employees of the aforementioned SOE Employers, and to exclude from continued membership the employees of companies or employees employed in businesses transferred entirely to private sector entities [section 14];

 

.4.                       to provide that only new employees of Transnet may join the Transnet Retirement Fund and to exclude from membership of that fund new employees of the SOE Employer that participates in the fund [section 14(2)];

 

.5.                       to provide that the Transport Pension Fund will be governed in terms of General Rules applicable to the fund as a whole [section 5(1) and (2)(a)] and in terms of Special Rules which will make specific provision for the contributions payable by and on behalf of employees of specific employers or groups of employers and the benefits payable to those employees and their dependants and other beneficiaries and for other matters specific to Sub-Funds to be established in respect of the employees employed by the employers or groups of employers, such as the investment of the assets attributable to Sub-Funds [sections 5(2)(b) and 5(7)(b)];

 

.6.                       to provide that the General Rules may be amended with the consent of all Principal Employers, or, failing such consent, by the Minister of Public Enterprises (“the Minister”), and that Special Rules may be amended with the consent of applicable Principal Employers [section 5(2)];

 

.7.                       to provide that only those General Rule and Special Rule amendments which may have a financial impact upon the Transport Pension Fund will require the consent of the Minister [section 5(3)];

 

.8.                       to ring-fence, subject to actuarial valuation, and to assign to each employer or group of employers with employees and retired employees who are members of the Transport Pension Fund, liabilities in relation to the funding of the benefits payable by the fund to those employees, retired employees, their dependants and other beneficiaries and guarantees in favour of those persons so that Transnet does not have to bear the burden of funding and guaranteeing benefits in favour of persons no longer related to it [section 5(5), (6), (12)  and (13) and section 6(1A)];

 

.9.                       to provide for the establishment of Sub-Fund Committees to govern Sub-Funds and to exercise powers in relation to the rights and obligations of the Sub-Funds in terms of their Special Rules that would otherwise have been exercised by the Transport Pension Fund’s board of trustees [section 5(7), (8), (10), (11)];

 

.10.                    to permit the Transport Pension Fund to purchase annuities in the names of its pensioners and thereby to allow it to transfer its liabilities in respect of those pensioners to insurers [section 5(14)];

 

.11.                    to allow housing finance providers, including employers, to recover out of benefits payable to such employees by the Transport Pension Fund or the Transnet Retirement Fund on termination of employment amounts due by the employers to those providers [section 10 read with section 14A(7)];

 

.12.                    to remove a subsection providing that the funds will lose their special tax status if they become registered in terms of the Pension Funds Act [section 13(2) read with section 14A(7)];

 

.13.                    to provide that all rule amendments of the Transnet Second Defined Benefit Fund require the approval of Transnet [section 14B(6)];

 

.14.                    to provide that only those rule amendments which may have a financial effect on the Transnet Second Defined Benefit Fund require the approval of the Minister [section 14B(6)];

 

.15.                    to provide for the payment of pensions by the Transnet Second Defined Benefit Fund to persons to whom pensions have been paid by Transnet who are not members of any fund established in terms of this Act [section 14B(8)];

 

.16.                    to empower the Minister to make regulations not inconsistent with the Act which, in his opinion, are necessary or expedient to achieve the objects of the Act [section 15A]; and

 

.17.                    to insert new definitions and to correct errors and omissions;

 

            Bodies consulted

 

The Department of Public Enterprises has consulted the board of directors of Transnet and Transnet in turn has consulted and received input from the boards of trustees of the Transnet Pension Fund, the Transnet Second Defined Benefit Fund and the Transnet Retirement, legal advisors, the actuaries of the Transnet funds and various union representatives.

 

            Financial implications for State

 

The financial implications for the State of the proposed amended statute will be apportioned amongst the entities in which the State holds an interest, such as Transnet and the South African Airways and other companies which may participate in the funds in which the State is a shareholder although it may not be the sole shareholder.  In addition, the South African Rail Commuter Corporation as an agent of the State (to which the Metrorail and Shosholoza Meyl businesses are to be transferred) will experience similar financial implications as those described above.

 

At inception of the amendments, no liabilities in excess of those now borne by Transnet are expected to be borne by Transnet and the new participating employers together.  These exposure levels could vary from the current levels over the ensuing period and shall depend on the individual employer appetite for benefits payable, risk profile of the Sub-Fund and investment strategy.

 

            Parliamentary procedure

 

.1.                       The State Law Advisers and the Department of Public Enterprises are of the opinion that this Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution of the Republic of South Africa (“the Constitution”) since it contains no provision to which the procedure set out in section 74[1] or 76[2] of the Constitution applies.

 

The State Law Advisers are of the opinion that it is not necessary to refer this Bill to the National House of Traditional Leaders in terms of section 1(1)(a) of the Traditional Leadership and Government Framework Act, 2003, (Act. No.41 of 2003), since it does not contain provisions pertaining to customary law or customs of traditional communities.   

 



[1] This section governs Bills providing for amendments to the Constitution.

 

[2] This section governs Bills affected provinces and requires that they be referred to the National Council of Provinces.