EMPLOYEE BENEFITS STUDIO
9 March 2007
Dear Sir
RE: DRAFT PENSION FUNDS AMENDMENT BILL 2007
1. Reform of the 51 year Pension Funds Act is to be welcomed. There has however
been a plethora of other legislation passed by Parliament over this period of
time that also impacts on the Pension Funds Act. Examination of such
legislation in relation to the Bill should in my humble opinion be drawn to
your attention as there is risk of conflict with clearly adverse consequences
for the very people the Bill seeks to provide enhanced protection for.
2. As I expect that many people and organisations will be submitting comment
about the Bill and drawing your attention to these, I am limiting my comment to
two matters that might not receive wide attention.
Financial Services Board Act, No 97 of 1990
3. The increased powers granted to the Registrar of Pension Funds are in
my view long overdue and are to be welcomed. In fact, in some areas I do
believe that they do not go far enough. Having said that, not only does the use
of power need to have checks and balances, but there also needs to be proper
recourse for those affected by wrong decisions and errors which do occur.
4. While the Financial Services Board has a very efficient and in my view
effective Board of Appeal, the Board may only correct an incorrect decision by
the Registrar. At the heart of my concern are the provisions of the Financial
Services Board Act which at section 23 provide;
Limitation of liability
The Minister, the board, a member or alternate member of the board or the
board of appeal or any officer or employee in the employment of the board shall
not be liable for any loss sustained by, or damage caused to, any person as a
result of anything done or omitted by any such functionary, body or person in
the bona fide, but not grossly negligent, exercise of any power or the carrying
out of any duty or the performance of any function under or in terms of this
Act or any other law.
5. But for gross negligence, the Registrar of Pension Funds cannot be held
responsible for the consequences of his actions. It is submitted that given the
high level of competence and professionalism at the Registrar's Office, gross
negligence, which has been defined as; a degree of negligence which indicates a
complete obtuseness of mind and conduct' and
"Dicta in modern judgments, although sometimes more appropriate in respect
of dolus eventualis, similarly reflect the extreme nature of the negligence
required to constitute gross negligence. Some examples are: 'no consideration
whatever to the consequences of his acts' (Central South African Railways v
Adlington & Co 1906 TS 964 at 973); 'a total disregard of duty' (Rosenthal
v Marks 1944 TPD 172 at 180); 'nalatigheid van 'n baie ernstige aard' or un
besondere hoe graad van nalatigheid' (S v Smith en Andere 1973 (3) SA 217 (T)
at 219 A - B); 'ordinary negligence of an aggravated form which falls short of
wilfulness' (Bickle v Joint Ministers of Law and Order 1980 (2) SA 764 (R) at
770 C); 'an entire failure to give consideration to the consequences of one's
actions' (S v Dhlamini 1988 (2) SA 302 (A) at 3080). It follows, I think, that
to qualify as gross negligence the conduct in question, although falling short
of dolus eventualis, must involve a departure from the standard of the
reasonable person to such an extent that it may properly be categorized as
extreme; it must demonstrate, where there is found to be conscious risk-taking,
a complete obtuseness of mind or, where there is no conscious risk-taking, a
total failure to take care. If something less were required, the distinction
between ordinary and gross negligence would lose its validity.
is highly unlikely - if not impossible. Where there is
no gross negligence by the Registrar or his Office, parties who suffer
financial loss as a result of decisions made or not made, from the additional
powers now granted, have no recourse. However, due to errors for which the
Registrar should be responsible for, loss suffered by pension funds and their
members as a result of errors made with the additional powers being granted
should be capable of being rectified. Errors made should not be for the expense
of members - the very people the Bill is seeking to provide enhanced protection
to.
6. I would therefore propose that in line with the intent of the Bill to afford
members and pension funds better protection, that section 23 of the Financial
Services Board Act 1990 also be amended to afford pension funds and their
members a proper recourse where errors are made by the FSB that result in
financial loss.
Pension Funds Amendment Bill 2007
New wording for section 2 of the
Pension Funds Act
7. From the explanatory memorandum we see that section 2 of the
Pension Funds Act is being amended to provide;
To make it clear that all bargaining council funds registered in terms of the
Act are indeed subject to the Act and to oblige bargaining council funds not
yet registered under the Act to register before or on 1 January 2008 in the
interest of consistency in fund governance and dispute resolution across
bargaining council funds and other occupational funds.
8. I do agree that the proposed wording in the Bill achieves what has been
described. While the inclusion of funds established through bargaining councils
in the governance provisions of the Pension Funds Act is to be welcomed in
principal, I do suggest that there are some very serious unintended negative
consequences of the proposed legislation and this is precisely my concern.
9. Relative to the election of a pension fund's board of management, not all
members of a bargaining council fund have a say in the collective agreement due
to the Labour Relations Act principle of ' majoritarianism'. Minority unions
whose membership does not meet the agreed threshold for membership of the
bargaining council, or in a closed shop collective agreement situation, such
members will not be able to participate in the election of the fund's board of
management if the provisions of the bargaining council collective agreement are
to be complied with.
This is so as S 33A of the Labour Relations Act provides;
33A Enforcement of collective agreements by bargaining councils
1. Despite any other provision in this Act, a bargaining council may monitor
and enforce compliance with its collective agreements in terms of this section
or a collective agreement concluded by the parties to the council.
2. For the purposes of this section, a collective agreement is deemed to
include;
(a) any basic condition of employment which in terms of section 49(1) of
the Basic Conditions of Employment Act constitutes a term of employment of any
employee covered by the collective agreement; and
(b) the rules of any fund or scheme established by the bargaining council.
3. A collective agreement in terms of this section may authorise a designated
agent appointed in terms of section 33 to issue a compliance order requiring
any person bound by that collective agreement to comply with the collective
agreement within a specified period.
10. In other words, in terms of the LRA, pension fund rules to be registered
with the Registrar are part of the collective agreement established by the
majority trade union and majority employer representative. The collective
agreement, and thereby the fund rules are extended by the Minister to non parties I minority unions in terms of s32. Many such
extended agreements about pension funds exist. The LRA principle of
'majoritarianism' is therefore being undermined by the proposed change to the
Pension Funds Act. There is therefore conflict between the provisions of the
Pension Funds Act and the LRA that is going to adversely affect members. This
is also likey to lead to much litigation
11. S 28 (1) (g) of the LRA provides;
The powers and functions of a bargaining council in relation to the registered
scope include the following - (g) to establish and administer pension,
provident schemes or funds ... for the benefit of one or more of the parties to
the bargaining councilor their members;
12. In practise this has the effect that in terms of the collective agreement
contributions are paid to the bargaining council and benefits are paid by the
bargaining council. This is in direct conflict with the Pension Funds Act.
13. An important aspect is that section 5 of the Pension Funds Act clothes
pension funds with a corporate identity and a separate legal persona and
identity. The effect would be that a pension fund established by a Bargaining
Council by way of a collective agreement, the rules of which fund constitute a
collective agreement, in terms of the proposed legislation, becomes a legal
person, which it cannot be in terms of the LRA. For compliance with the provisions
of a collective agreement, the LRA sets out detailed compliance procedures and
mechanisms "to address non compliance - which are
distinctly different to the Pension Funds Act.
14. Put differently, in terms of the Pension Funds Act a pension fund is a
legal persona with its own will, which by law it is required to exercise
independently. A collective agreement is a written recording of the agreed will
between employers and employees. The clothing of a collective agreement with a
legal persona and its own free will is contrary to the provisions of the LRA
and the Constitution. Conflict and significant legal expense is sure to follow
if Bargaining Council funds are simply included as proposed.
15. Benefits negotiated at bargaining councils also frequently include in the
rules of funds the provision of accident benefits, disability income benefits
and funeral benefits. The inclusion of these benefits are
not permitted by the Registrar in pension fund rules.
To change the arrangement to get all the participating employers in such funds
to effect their own assurance arrangements for these members at the same time
is not practical, - some Bargaining Council funds have as many as 500 or more
participating employers - in addition to which not all employees of an employer
will be on the bargaining council fund - only those covered by the bargaining
sector - e.g. unionised employees. Non unionised employees are treated
differently because of the bargaining council agreement. Taking only certain
aspects out of the bargaining council realm is most likely to be very
disruptive to collective bargaining for members, unions, the bargaining council
and employers.
16. The next aspect is that of dispute resolution. Bargaining council
collective agreements are required to have their own dispute resolution
mechanisms. These provisions usually relate to binding arbitration. [s33A (4)]
So too, the rules of the pension funds established, by virtue of s 33A (2)(b) fall within the ambit of the dispute resolution
provisions which are different to the Pension Funds Act. There is therefore
likely to be much uncertainty how pension fund rules dispute resolution
mechanisms should be drafted and complied with. Compliance with the Pension
Funds Act is certain to bring the pension fund rules part of the collective
agreement in direct conflict with the main part of the bargaining council
collective agreement.
17. Similarly, the 'trustees' right in terms of the Pension Funds Act to amend
rules of the pension fund, part of the collective agreement, is in direct
conflict with the right of the parties to a collective agreement to change the
collective agreement in terms of the LRA. This is important as the collective
agreement can vary terms and conditions of employ, yet those conditions are not
being varied by the parties to the main agreement - the trustees who are not a
party to the agreement are making the changes by virtue of the power vested in
them in terms of the Pension Funds -Act. At law, a non party to an agreement
cannot vary an agreement between parties thereto. The effect of the proposal is
clear conflict of law.
18. All the above provisions are also applicable to Statutory Councils.
19. All the above is also influenced and needs to be considered against the
backdrop of section 210 of the LRA which reads;
If any conflict, relating to the matters dealt with in this Act, arises between
this Act and the provisions of any other law save the Constitution or any Act
expressly amending this Act, the provisions of this Act will prevail.
20. The proposed amendments to the Pension Funds Act do not expressly amend the
LRA, consequently, there is likely be much conflict and legal uncertainty which
is going to lead to increased costs and many problems for members, who are
intended to benefit, trade unions, bargaining councils, statutory councils and
employers.
21. These are just some thoughts on a very complex matter of the
consequences of proposed simple incorporation of bargaining council funds under
the Pension
Funds Act. There are other complex matters, the impact of which need to be
addressed, such a~ the impact on work place forums, appeals against a decision
of the Registrar of Pension Funds go to the Appeals Board while in terms of the
LRA appeals against a decision of the Registrar go to the Labour Court,
enforcement of a bargaining council collective agreement in terms of the LRA as
opposed to compliance matters dealt with in the Pension Funds Act say the
payment of contributions to the fund by an employer, the unfair provision of benefits
and many more.
22. To prevent numerous and unforeseen complications and difficulties, some of
which have been indicated above, I do suggest that in order to achieve the
desired result of all funds enjoying the improved governance of the Pension Funds
Act, the LRA should be amended. The amendment of the LRA to incorporate the
governance principles of the Pension Funds Act should not be difficult. Such
amendment will avoid the conflicts identified and unintended consequences in
the proposed legislation.
23. In closing I would obiter that the Committee should be aware that in my
humble opinion, many portions of the Bill are in conflict with both the
Constitution and centuries of established legal practise. Violations of these
pillars of democracy are likely to lead to much litigation and additional
expense for both members and pension funds. I seem to recall that similar
warnings of the proposed legislation resulting in increased expenses for funds
were sounded in 2001 and were ignored. Safe to say that the many recent
comments from the Financial Services Board about the high expenses being
incurred by pension funds in the surplus apportionment exercises is evidence of
materialisation of previous warnings made.
24. In closing, I do need to mention that in my view, the numerous serious
flaws in the Bill will only be of benefit the legal fraternity if enacted as
proposed, and in many instances, not those "it is designed to benefit and
protect.
I wish you and the Committee well with your deliberations.
Yours faithfully
PIERRE REINECK
ANNEXURE
About the writer
I have been an active practitioner in the retirement fund industry for 29
years, the last 13 of which have been as an independent consultant in private
practice. I became a pensions fellow of the Financial
Planning Institute by examination in 1983 and did serve the Institute for a
number of years as chief examiner of the subject "Retirement Fund
Constitution and Management". I have a Masters Degree in Labour Law from
University of Cape Town.
I arbitrate pension and labour law related disputes and am an associate member
of the Association of Arbitrators (Southern Africa). I am a past Vice President
of the Pensions Lawyers Association of South Africa, a member of the
International Foundation of Employee Benefit Plans in the United States and a
former South African representative and past steering committee member of the
International Pension and Employee Benefits Lawyers Association.
I was responsible for the launch of the Institute of Pension and Provident Fund
Trustees as well as Pensions World SA in 1998, of which I was the managing
editor until I resigned in June 2005. J have presented papers at various local
and international conferences and seminars, had articles published and have
been guest lecturer at UCT on the subject of Pension Law. I was a member of a
research group on social security law in South Africa, the results of which
have been published in Eds. Oliver et al Social Security Law - General
Principles Butterworths. I was involved as benefits consultant to the working
group drafting the Employment Equity Act Code of Good Practice: Disability, for
the Department of Labour. I am a current contributor to 'The Manual on South
African Retirement Funds and other Employee Benefits', published by
Butterworths.