PRACTICE NOTES TO THE PENSION AND PROVIDENT FUNDS ACT (CHAPTER 24:09) PREFACE

Transcription

1 PRACTICE NOTES TO THE PENSION AND PROVIDENT FUNDS ACT (CHAPTER 24:09) PREFACE The Practice Notes highlight the Registrar s Office policy on the day-to-day administration of Pension and Provident Funds. Further, they are intended to simplify and facilitate quick registration of Rules and amendments thereto. It is hoped that all fund administrators and Principal Officers (Trustees and employers included) will familiarize themselves with contents of this document. Please be advised that this office will find it very difficult to register rules or amendments that do not comply with the requirements outlined herein

2 REGULATIONS SECTIONS Part 1 Definitions SECTION IN EXPLANATION OR FURTHER COMMENTS ACT Pensionable With the approval of the Registrar, service rendered to the employer prior Service to the setting up of the fund could be considered pensionable at the instance of the employer, provided all members who were in service prior to the setting up of the fund will be considered and no such backdating of pensionable service shall be funded for from the fund. However, in cases where the employer is only prepared to meet part of the cost with member meeting the balance such service may also be considered pensionable with the Registrar s approval. Permanent Staff Seasonal workers and contract workers on contracts of at least two years who are not covered under the Labour Relations Act should be considered permanent staff for the purpose of fund membership. In this regard benefits could be based on total months of service or some other fraction as approved by the Registrar. Thus for the purpose of partial preservation of additional withdrawal benefits the scale to apply for pensionable service between two years and five years shall be as follows:- MEMBER S ENTITLEMENT TO EMPLOYER S CONTRIBUTIONS Completed Years of Continuous Pensionable Service Percentage 2 years 10 3 years 15 4 years

3 Part II Sections 3(3)1 Any one employer shall register and operate not more than one active fund in respect of permanent staff by him. In case of some industrial schemes that are designed to cater for certain operative grades in that industry at the exclusion of some senior grades, (the latter being entitled to better benefits), such schemes need to amend their rules so as to facilitate the implementation of one employer one fund policy. This could be done either within or outside the industrial scheme. Registration fees shall be paid as outlined in the Regulations or such amounts as shall be determined from time to time by the Registrar in consultation with the Pensions Advisory Committee. The first two amendments to the rules in a year shall however, be registered free and the relevant fees shall be charged for any subsequent amendments. This office is generally not in favour of provident funds. It is felt that the ultimate benefit should as much as possible be a pension. Provident funds will however continue to be registered but only as a last resort. 6(1) MANAGEMENT All pension funds should have a Board of Trustees whose main function would be to administer pension fund business. However, an employer whose fund is participating in an Umbrella Group Scheme may have an overall such Board of Trustees. Such body shall only have power to deal with those matters which affect the broader aspect of running the affairs of the Umbrella Scheme in general. There shall be in the case of each participating employer or any other employer with more than twenty members be appointed a semi-autonomous management committee. In order to ensure sufficient dialogue, the main board of trustees shall meet with such semi-autonomous management committee (where it exists) for at least once in three or four years. The management shall however, have no power to effect amendments to the main rules in the case of an Umbrella Group Scheme. A fund with a membership of less than twenty members shall, if it so wishes be exempted from any of this requirement of appointing a semi-autonomous management committee. However, this office would encourage a situation whereby such participating employers set-up such committee composed of employer and employee representatives to oversee the interests of both parties. The powers of such Committee will be limited just as is the case with semi-autonomous management committees of funds with more than twenty members

4 MATTERS RELATING TO THE APPOINTMENT, DISCHARGE OF DUTY, GENERAL CONDUCT AND RESIGNATION OF TRUSTEES Trustees shall hold office for a period of three years. However it is felt for continuity s sake, one third of the trustees should stand for re-election at the end of the third year. These will comprise of one-sixth (employer) and one-sixth (members) elected trustees. The method of determining which trustees stand for the first re-election would, in the case of the first lot of trustees from the appointed day, be by drawing lots i.e. in the case where there are six trustees the first two would be selected by draw. However both employer and employees should indicate whether there are re-electing respective trustees for a further three-year term or not. This means that a draw will be held at the end of the third year from the effective date of the Regulations or rules as amended in terms of these Regulations, for the first whole lot of trustees and at the end of the fourth year for the remaining two thirds and the last for re-election as the case may be at the end of the fifth year and thereafter any trustees elected or re-elected shall, unless they retire out of their own accord, hold office for the full three year term or the remaining balance of the term. It is specifically provided that the trustees shall not apply to a Retirement Annuity Fund. 6(1)(f) The rules of a fund shall provide that a quorum of Trustees shall be 50% and such 50% shall be of equal numbers of employee and employer Trustees. However, if at any meeting this quorum cannot be met, then another meeting should be called within a week. The above shall equally apply to management committee. The trustees would be required to upgrade the performance of the Fund in the financial area as well as the benefits payable to members and pensioners taking into account the viability of the scheme and ability of both parties to pay for the benefits. The trustees are not encouraged to borrow moneys to meet current expenditure including payment of pension benefits. When this happens it should be for short-term periods of time while the fund is organizing its assets portfolio so that the fund maintains viability. As a general rule any borrowing by the fund should as much as possible be for the purpose of meeting investment expenses to the advantage of contributions and pensioners. Trustees shall be required to ensure that the Fund is protected against dishonesty and bad business practices or general misconduct on the part of any of its officers. This office definitely would like to see officers of the fund refrain from abusing the trust bestowed upon them and the Trustees and any officer to the fund shall be liable for any breach of trust knowingly or intentionally committed by them. The Trustees and any other officers should understand that they are the primary guardians of the fund and as such they should always strive to achieve the best to the interests of the ultimate beneficiary the pensioner or member. Trustees should therefore see to it that their funds are run on a sound professional basis that does not however depart from moral - 4 -

5 standard practice. This is important if all parties are to achieve the objective for which the concept of a pension was instituted. The rules of a fund shall stipulate that one of the duties of the chairman of Trustees and Principal Officer shall be to keep the Board of Trustees informed as to whether Fund contributions are up to date. Other functions of the employee representative trustees would be to educate and inform members on pension fund matters. The trustees would be required to upgrade the performance of the Fund in the financial area as well as review the benefits payable to members and pensioners taking into account the viability of both parties to pay for the benefits. 8(2) If there has been a dispute between a fund and any members etc, which has been referred for arbitration, the Principal Officer should advise the Registrar in writing of the nature of disputes. This will assist in the process of reviewing the law taking into account the practicability on the ground. The question of which party shall pay the costs of litigation or arbitration as the case may be shall be dealt with in accordance with the court decision. The Registrar s interest here is mainly in monitoring effectiveness of Law. 8(3) This only refers to disputes that are referred to court or for arbitration. 10(2)(a)(i)&(ii) Applications to extend the qualifying period of membership should be submitted to the Registrar through the trustees and finally the Principal Officer. To this end Trustees should allow members who would have made genuine errors of not duly joining the Fund, to do so provided that such commencement of membership shall not involve backdating of service. 11(c) The terms of this paragraph shall apply to Zimbabwean citizens who took policies and went outside the country for definite periods (e.g. diplomats serving abroad and employees seconded to other countries etc) 12 proviso A fund shall, as the case may be specified in the rules provide the Registrar with a schedule separate from the rules which shall reflect the basis of calculation of such contractual commission, bonuses or other allowances. Such schedule can be amended from time to time with prior approval of the Registrar. (13)(1)(b) Participating employers should make compulsory contributions. If there is a surplus disclosed in the Valuation or overpayment of contributions into a defined benefit scheme, the employer may reduce contribution rate as per the Actuary s recommendations. It is provided that in the case of a defined contribution scheme where there has been an overpayment of contribution, the amount in excess of the correct contribution can be refunded

6 13(1)(d) 13(1)e 13(1)(f) This office is not happy with Principal Officers or pension fund administrators who fail to report to the Registrar, any outstanding pension contributions until the employer decides on his own to discontinue the scheme. The Administrators of the scheme, fund Secretaries, the Chairman of the Trustees and the Principal Officer should within 21 days, advise the Registrar of any outstanding provisions irregardless of any other understanding that may have been in place between the employer and administrators of the scheme. In this regard each of the above mentioned parties should submit to the Registrar a written statement to the effect that they are aware of the provisions of this section and will comply with the requirements of the law in the area at all times. The provisions of this paragraph shall apply to new members and new Funds only. Where the rules are being amended to comply with the provisions of this section in respect of existing members unless it is submitted in terms of section 8 subsection (3) of the Act (Proviso) in which case it can be retrospective, affect only future pensionable service. Additional voluntary contributions to the Fund shall be subject to a maximum of ten per centum or such percentage as the Registrar may determine from time to time, of the member s annual pensionable emoluments. The rules of the Fund shall state the continuation of such contributions only in extenuating circumstances. Provided that if the member revokes his decision to continue contribution therein, then the accumulated voluntary contributions of such voluntary contribution shall remain paid-up until the date of retirement or withdrawal as the case may be. 13(2) No employer shall receive a refund of contributions he has made to a pension fund or provident fund unless allowed in terms of section 33(2)(b). 14(1)(c) The rules of a Retirement Annuity Fund shall provide that on becoming a member who wishes to increase the annual rate of his contributions to the Fund, the aggregate of annual contributions to the fund shall not exceed twenty-five per centum of the gross income of the member less the exemptions as provided in terms of section 14 of the Income Tax Act Chapter 181. Third schedule or seventy five thousand dollars whichever is lesser. 15 Ill-health early retirement benefits should be awarded with the Registrar s approval. However this office recognizes the need to deal with such cases promptly, hence this area shall as much as possible be accorded special attention. To expedite these cases funds will be expected to submit all the details of the circumstances surrounding such ill-health retirement. It is also advised that in all these cases if a Fund does not hear from this office in three weeks of the date of receipt of its written request, then they should close up the matter with us. 16(2) The Registrar may waiver the condition as per the provision of this subsection on a case-by-case basis depending on the magnitude of the contributions leading to such retirement

7 17(6) proviso This paragraph shall be read in conjunction with Section 22(1)(b). 18(1)(b) For the purpose of this paragraph Pensionable Service shall with the agreement of the employer include pensionable service or a portion thereof prior to 25 October Where there has been no agreement between the member and the employer on whether to consider service or a portion thereof, prior to 25 October 1991, pensionable, then Pensionable Service shall mean service rendered to the employer after this date. However, this office would encourage employers to backdate. Additional withdrawal benefits for pensionable service prior to this date for reasons of fairness among members, provided such past service award shall apply equally to all members thereof i.e. the basis for granting their benefits shall be uniform. 19(a) and (b) The note given in Section 18(1)(b) above shall also apply. 19(d)(i) The bottom line of the interest rate to be used shall be the simple interest, pension funds may provide for higher interest rates and they may even use compound interest as long as the interest rate is not less than as provided in these Regulations. 20 Service for gratuity purposes shall be up to the date of commencement of the Fund and the Gratuity accumulated thereof shall be utilised to purchase a pension, hence is shall form part of the capital. Such gratuity shall always be refundable as part of his withdrawal benefit. 23(a)(i) &(ii) The rules of the Fund may also authorise the trustees to proportionate benefits between spouses and children in cases where recklessness or insanity has been proven on such spouse in order to ensure compliance with such intention and spirit of these regulations, provided that the trustees shall obtain proof or evidence as determined by the Court. Cover letter Amendment 24(1)(b) 25(a)(i) Cash commutation of pension shall be up to one third (1/3) of the capital (refer to circular number 2/1991). This office would only consider wavering this condition in special case of ill-health. The provisions of this section shall stand while the situation is being monitored with the hope of further discussions should circumstances dictate so. The amount of benefit payable as a cash sum in terms of this section shall not exceed twice the pensionable emoluments of the member during the twelve months preceding death or retirement, as the case maybe. Pension Fund members who enjoy greater than two times but less than seven times annual pensionable emoluments prior to 1 st July 1976 shall continue to enjoy those benefits. Where there has been an improvement in benefit such increase in benefit shall not be paid as a cash sum but as an annuity. It is advisable that Pension Funds should try to use this extra capital to enhance either Additional Voluntary Contributions or withdrawal benefits

8 27(2)(a) A surplus from investment or other source in a defined contribution scheme shall not be applied in whole or in part as a refund of contribution to a member or a participating employer, rather such surplus shall be distributed among the members and pensioners. In the case of a defined benefit scheme a surplus disclosed by an Actuarial Valuation shall not be applied in whole or in part as a refund of contributions to a member or a participating employer, but it shall be used for the purpose of meeting future costs. In the cases of discontinuance, the surplus that remains after member s equishare have been determined, could be applied as members equishare. Section 28 Proviso (3) Where the rules of any fund make provision for the payment of a Section 28(3) and spouse s benefit on the death of a member and the member has more (4) below than one spouse and the capital so available to pay a spouse s benefit to one spouse shall then be divided by the Trustees as follows: One half of the total spouse s benefit shall be according to (seniority and length of marriage) on a sliding scale so as to give the senior spouse the greatest portion, the exact proportion of which the trustees shall determine and the other half according to need (number of dependant children) on a sliding scale so as to give the spouse with the biggest number of dependant children the greatest portion, the exact portions of which the trustees shall determine. (4) where the rules of any fund make provision for payment of a children s or dependant pension on the death of a member and the member has more than one dependant child or dependant, the children s or dependant s pension shall be costed on the basis of any specified number of dependant children or dependant s and the capital so available shall then be divided according to the total number of dependant children or dependants and in such proportions as shall be determined by the trustees. 35 The procedure for any amendment or repeal and replacement of the rules should include the submission of the Certificate of Amendment signed by the Principal Officer, Chairman of Trustees and the employer. This document should give adequate details on the reasons for the changes that are being effected i.e. the objective that it seeks to achieve. Certificates of Amendments that merely give a summary of the subject matter of the amendments or repeal and replacement as the case may be shall be regarded as incomplete and will not be acceptable for the purpose of complying with the provisions of the law. 41 Any annual report or any other statement of report a self-administered fund presented to its members in respect of any of its activities during any one financial year should be sent to the Registrar together with the forms PPFR4 to 7 as required in terms of this section

9 50 Besides addressing itself to the issues of the adequacy of the Pension and Provident Funds legislation, the Advisory Committee should also look at ways of improving the conduct of pension fund business amongst all of the parties involved. This calls for the Committee to assist design and implementation of a curriculum specifically on pension and other related business for the purpose of giving appropriate training to pension fund administrators staff and any persons involved in pension funds administration. Such a programme should include examining ways and means of attaining the establishment of local authorities of actuaries and any other technical aspects of the aspects of the pensions industry. The committee should also come up with recommendations of the most efficient data and information management system to apply to the Registrar s office. Thus the committee should include, an Actuary, a Lawyer, an Economist, an Accountant and a Sociologist

10 AMENDMENTS/ADDENDUM DOCUMENTS All Amendments/Addendum Documents should be numbered in chronological order, that is the first Amendment/Addendum document of a Fund shall be numbered 1 and the second 2 and so on. This is important in cases where for one reason or another a Fund wishes to keep record of the total number of Amendments/Addenda it has effected as at any date. In addition with effect from 1 st January 1992, every Amendments/Addenda document shall indicate in its title chronological position in the calendar year it is submitted to this office. For example the fifth Amendment/Addendum document to a fund which also happens to be the first which also happens to be submitted to this office in the year 1992 shall be entitled. Amendment/Addendum 1 1/92 Thus the next document in the same year shall be entitled: Amendment/Addendum 6 2/92 If however the seventh Amendment/Addendum document is to be submitted to this office in 1992, then it shall be entitled: Amendment/Addendum Dated 22 January PENSION FUNDS FOUND UNDER INDUSTRIAL SCHEME Where an employer should, under normal circumstances, have been obliged to participate under an Industrial Scheme but because of his business s profitability formed a scheme for his employees that offered superior benefits, it is the Registrar s Office desire that such employees be exempted from participating under the Industrial schemes. In this regard all Industrial Schemes should amend their rules accordingly in order to accommodate such employers and employees. Alternatively such employers and employees could be accommodated by allowing them to participate under the main fund with such employers having the freedom to come up with their own rules in the area of benefits enabling the members to enjoy higher benefits than those offered by the fund. Benefits under the main rules of the fund will, in this case, be the minimum level of benefits payable under the Industrial Scheme. CHANGE OF ADMINISTRATION OF PENSION SCHEME Where a fund has been administered by an Insurance Company or Insurance Broker and for some reason decided to change its administrator, it is not necessary for the new administrator to go through

11 the process of forming a new fund, as the fund is already registered under the Act, all that would be required would be to inform this office of the company taking over the administration of the scheme. Further an Auditor or Actuary s certificate confirming the transference of the funds assets and liabilities would have to be submitted. However changes in administration of funds should be communicated to the Registrar s Office at least 4 months before effective date of transfer. The new administrator should also submit any rule changes at least 8 weeks before date of transfer. Needless to say that no transfer will be effective until such conditions as outlined in this paragraph have been compiled with, particularly the registration of the amendment rules relating to benefits and administration under the new administrators of the scheme. PENSION INCREASES FUNDED FROM STABILISATION RESERVES Where a fund wishes to award an increase to its pensioners and such increases are to be funded from the Stabilisation Reserve fund, this office should be informed by way of an Auditor or Actuary s certificate of the total amount in the Stabilisation fund. Further, this office should be informed of the total cost of such increases. The Stabilisation Reserve Fund should only be constituted of monies that have not been utilized to fund an increase or support a liability of the fund. It should be constituted only of free assets. PENSION INCREASES AWARDED FROM DEEMED INCOME FROM ASSET Where a fund wishes to award increases to its pensioners and such increases are to be funded from deemed income assets, this office should be furnished with the following details: (i) (ii) (iii) (iv) Actual Cost of asset(s); increase in market value of such asset(s) since acquisition; total amount used to support liabilities up to the previous funds financial year; and resultant surplus (less amount used to support current pension increase). This statement should be certified by a qualified estate valuator. Further, no more than fifty per centum of such surplus should be utilized for funding pension increases. AMENDMENTS TO RULES INTENDED TO IMPROVE BENEFITS Amendments to rules of funds which are intended to improve benefits should not incorporate the aspect of backdating of such improvements. Consequently all such amendments should be submitted for registration at least one month before the effective date and should, at all times be accompanied by all the relevant documents in compliance with section 8 of the Pension and Provident Funds Act Concise reasons for the amendment clearly explaining the intentions and objectives as well as the implications on the members and the employer

12 Withholding of benefits in terms of section 39 in cases where the member has absconded. Where a member has committed a fraudulent act which results in his loss and investigations by the authorities lead to his arrest, the employer can apply to the Registrar s Office to withhold the member s accrued benefits. However, at this stage the benefits cannot be utilised until the member has been tried and found guilty and a copy of the Court Judgement has been submitted to this office. There are cases of a member who is awaiting trial and is on bail (remand) and during this period absconds and cannot be traced by the law enforcement agents. After a time lapse of two years, the employer can submit confirmation from police or investigating officer that the member cannot be traced. On the strength of that evidence, this office will be in a position to make a decision in respect to the employer s request to utilise all or part of the member s withdrawal benefits. PRESERVATION OF ADDITIONAL BENEFITS FINANCED BY EMPLOYERS PORTION OF CONTRIBUTIONS Where a member leaves the employment of an employer after having served him continuously for a period of 5 years or more, such member shall be entitled to a portion of the employer s contribution as shown in the Third Schedule of the Regulations. However, any such portion of the employer s contribution or any bonuses accrued to the member s credit shall remain within the fund as paid-up or, at the member s request in writing, be transferred to another fund the member may subsequently join. Such capital as referred to in this paragraph shall earn interest at the same rate as the fund administering it. It shall not be refundable to the member instead it should be retained by all funds to which the member might choose to transfer the benefit to. Consequently all pension fund s information systems should be structured in such a way that the capital arising from the provisions of section 21 of the regulations are easily identifiable and are retained by the fund or transferred to another scheme. On withdrawal, only the members contributions to the fund and not current and all previous employer s contributions should not form part of the cash withdrawal benefit