Major reform proposed to pension plan funding rules in Quebec

Transcription

1 Major reform proposed to pension plan funding rules in Quebec June 14, 2006 In June 2005, the Régie des rentes du Québec (the Régie) published the working paper Toward Better Funding of Defined Benefit Pension Plans. Following a consultation and a review of the briefs received, on June 14th last, the Minister of Employment and Solidarity tabled draft legislation that, if adopted by the National Assembly, will result in a major change to the pension plan funding rules as of January 1, In certain cases, this legislation would also have an impact on the relationship between employers, unions, active members and retirees in matters regarding the use of surplus assets. Highlights No obligation to fund the provision for adverse deviations with additional contributions as originally proposed in the working paper Use of surplus assets for a plan improvement must be equitable for both the group of active members and for the group of non-active members Both retired and non-retired members may, even acting alone, request arbitration if they deem that an amendment funded directly by the asset surplus is inequitable Stricter guidelines for contributions holidays Liability insurance deductibles may be paid for by the pension fund Active members who become non-active members may request to have their pension guaranteed by an insurer and be therefore protected against a reduction in their entitlements in the event of the employer s bankruptcy (current retirees would not have this right) Amortization periods for deficits would be maintained Actuarial valuations or opinions would be required every year instead of every three years Use of letters of credit would be allowed for solvency deficits representing up to 15% of liabilities Delegatees and service providers may not limit their liability. The section of the Supplemental Pension Plans Act dealing with funding has been entirely recast To obtain the revision of decisions made by the Régie one will have to go directly before the Tribunal administratif du Québec In some cases, the funding a plan improvement must begin at the end of the previous fiscal year Special provisions applicable to Montreal and Quebec City will not no longer be part of the legislation Special rules will be provided for by regulation for the pension plans of municipalities, universities and the Centres de la petite enfance (Quebec daycares). 1

2 Provision for adverse deviations The working paper on the funding of pension plans proposed the setting up of a specific reserve for adverse deviations representing 15% of the plan s obligations. This reserve was to be funded by a special contribution to ensure its funding by December 31, Bill 30 upholds the principle of setting up a reserve for adverse deviations. This provision is determined solely on a solvency basis and the method for calculating the reserve will be provided for by regulation. This method will be tied to the plan s investment policy and shall represent 7% of the plan s obligations for a plan where 60% of its assets are invested in variable income securities. At this time, no information is available on the method. What is known, however, is that the Canadian Institute of Actuaries will be called upon to provide input on the method. This reserve will not be financed by a special contribution, but by actuarial gains determined at the time of the actuarial valuation. Should the actuarial gains be less than the provision provided for by regulation, no additional amount will be required to fund the provision. However, it will be possible to use surplus assets for the payment of employer contributions only if, among other things, the provision for adverse deviations has been fully funded. Entitlements of retirees: a question of equity In the future, the entity empowered to make plan amendments must ensure that the funding of a plan amendment using surplus assets is equitable both for the group of active members and for the group of non-active members and beneficiaries. To ensure such equity, several factors must taken into consideration, namely the plan s history, the source of the plan s surplus assets as well as the plan characteristics. Any disagreements regarding the equitable appropriation of the surplus assets may be referred to arbitration at the request of the party concerned. Such action may be instituted by any member acting alone. However, the obligation to ensure the equitable appropriation of the plan assets for the funding of a plan improvement does not apply to pension plans where employers have availed themselves of the new method for confirming their right to use all or part of the plan s surplus assets to fund plan improvements. This new method is similar to the existing one which allows employers to confirm their right to use all or part of the plan s surplus assets for the payment of their contributions. Funding of plan improvements Under Bill 30, amendments can begin to be funded sooner than is currently the case. Indeed, the value of any improvements which have an impact on the actuarial liabilities or the normal actuarial cost will be determined at the date of the last fiscal year end preceding the effective date of the amendment (or at the date of the last actuarial valuation if such valuation was performed at a more recent date). No assets may be used to fund the cost of the amendment if the value of the assets is not at least equal to the actuarial provision calculated on a solvency basis and the plan s provision for adverse deviations. In such case, the cost of the amendment must be funded over a period of no more than five years. 2

3 As well, if the plan s solvency percentage falls below 90% as a result of the amendment, an immediate special amortization payment payable in full must be paid into the pension fund to ensure that the plan s solvency percentage is equal to 90%, but does not exceed the cost of the amendment. Letters of credit As proposed in the working paper on funding rules, part of a plan s obligations may be secured by letters of credits. The plan s assets on a solvency basis include the amount of letters of credit which cannot in any case exceed 15% of the plan s liabilities. However, the plan s assets on a funding basis shall not take into account the value of such letters of credit. The terms and conditions applicable to letters of credit will be set out in the pertinent regulation that will be published after the bill becomes law. Employers participating in a multi-employer plan may not use a letter of credit to fund the plan s solvency deficit. Purchase of an annuity by retirees An innovative feature of Bill 130 is that it gives new retirees, before their pension is in pay, the right to have their pension guaranteed by an insurer. From the date the pension payments begin, the pension committee will then have three years to meet this requirement. The employer will be required to pay into the plan the amount necessary to guarantee the pension (the premium required less the value of the pension multiplied by the plan s solvency percentage). While this measure appears to favour retired members since they no longer have to worry about the financial health of their pension plan, it instead favours current active members since it will apply to them when they retire. Moreover, these retirees who benefit from a pension guarantee will continue to be plan members and, for a period of three years following the purchase of their pension, will retain the right to any allocation of surplus assets should the plan be terminated in a surplus position. Current retirees may therefore find this measure to be inequitable since, unlike active members, they will not have the possibility to guarantee their pension. Many stakeholders may also ask themselves why it is necessary to allow retirees to purchase a pension from a life insurance company since this measure will inevitably result in an increase in the cost of pension plans since the pension plans must assume the cost of provisions for adverse deviations and the profit margins of insurers. We believe that this measure will be the subject of many discussions. Current retirees will be displeased that they will be unable to benefit from this measure and plan sponsors will complain that the cost of the plans may significantly increase in the mid to long-term. The government must therefore consider the full impact of this measure. 3

4 Pension committee governance The legislator restates some of the recommendations made by the Régie as regards the sound management of pension plans. The proposed legislation will now require a pension committee to adopt internal by-laws establishing its rules of operation and governance, and to specifically address areas specified in the law. Such by-laws must be applied and regularly reviewed. Pension committee decisions made in this respect shall prevail over those made by the plan sponsor since the by-laws shall have precedence over the plan text. Bill 30 significantly broadens the obligations of service providers. Previously, only pension committee delegatees were subject to the same obligations and responsibilities as the pension committee. Such obligations and responsibilities will now extend to all service providers who exercise the duties or powers of the committee. The obligation of the accountant to submit reports on its work to the pension committee will now extend to all service providers. As well, service providers must report to the pension committee, in writing, any situation noted in the normal course of their duties that might adversely affect the financial interests of the pension fund and that requires correction. If the pension committee fails to take immediate corrective measures, the service provider must send a copy of the report to the Régie des rentes du Québec. As well, service providers may no longer limit their public or professional liability. Contractual clauses to that effect will be declared null and void. Specific rules will pertain to contracts which have expired or which are in force when the bill is adopted. Liability insurance Bill 30 provides for the compensation of committee members who suffer a financial prejudice as a result of the performance of their duties. Any compensation costs will be paid by the pension fund. Committee members who suffer a prejudice but have not committed a fault (for example, if they require legal defense as a result of legal proceedings brought against them and if they are not found liable) must be compensated by the pension committee for any prejudice suffered by them. However, the bill provides for two situations for a member who has committed a fault which was not deliberate or gross: if the member is covered by liability insurance, the committee may provide compensation up to the amount of the deductible. Before making a decision, the committee must take into consideration the adverse effect of the fault on the financial interests of the pension plan and other circumstances. If the member is not covered by liability insurance, Bill 30 does not appear to confer any power of compensation to the pension committee. In light of these new provisions, it is in the best interest of committee members to take out liability insurance. 4

5 Overview of other measures The content of the annual information return may be decided upon by the Régie. The pension committee will be deemed to have acted prudently if a decision was made by the committee based on the advice of an expert. The government believes that this will prompt pension committees to consult experts more and thereby increase the quality of pension plan administration. Municipal and other pension plans Following the tax agreement (pacte fiscal), the Government of Quebec has agreed to exempt municipalities from paying, effective January 2007, contributions which would otherwise be required to amortize a solvency deficit. While not addressed by Bill 30, these measures will instead be the subject of an exclusion regulation issued by the government as regards the application of Section 2 of the Supplemental Pension Plans Act (SPPA). An advance copy of the regulation is expected to be published in the coming weeks. Moreover, the Ministry of Municipal Affairs and Regions has announced that municipalities will not be subject to the same funding rules as those set out in Bill 30. As well, as had been expected by many, the documents made public on June 13 th last, announced that university pension plans would also not be required to make special solvency contributions. This will also apply to the Régime de retraite du personnel des CPE et des garderies privées conventionnées du Québec. Lastly, in such cases, the regulation will provide that the provision for adverse deviations will also not be applicable. According to the bill, contribution holidays may continue to be taken provided that the pension plan is funded and solvent. However, if the degree of solvency falls below 90%, funding of the improvement must be accelerated or paid in full. Multijurisdictional plans Since Bill 30 is mainly aimed at pension plans that are subject to the SPPA, many problems pertaining to its application are expected to arise for plans registered in Quebec, but which have members in other provinces. This also applies to plans registered outside the province, but which have members in Quebec. How can the new rules be adapted to address all these situations? Could it question the application of the Multilateral Reciprocity Agreement between the provinces? At present, the bill does not include plans registered outside Quebec. Can they become subject to this legislation? Should plan members in Quebec be subject to different measures depending on whether or not their plan is registered in Quebec? These are all important questions for many stakeholders and which must be addressed before the bill becomes law. Effective date of measure Bill 30 has been presented, but is only expected to be adopted late in Fall It will not be effective until January 1 st, Some measures will, however, be effective earlier. These include provisions which would allow a pension committee to have the cost of the insurance liability deductible paid for by the pension fund as of June 14, 2006 (if the bill is adopted). 5

6 Lastly, in its current version, Bill 30 does not contain all the transitional measures required for it to become law. These measures are only expected to be tabled when the bill will be reviewed in-depth by the parliamentary commission. We will therefore have to wait until the end of 2006 before we can weigh with certainty the full scope of the impact of this bill on employers, unions, active members and retirees. As well, many of the provisions will be contained in the regulation which will only be available when Bill 30 becomes law. Consultation As soon as the bill was presented, the official opposition requested that the minister conduct a public consultation on the proposed measures. Given the far-reaching consequences of this legislation on pension plans, we feel that such a consultation is essential. Should you have any questions or comments, please contact Ghislain Nadeau at Aon consulting at , or by at ghislain.nadeau@aon.ca If there are any changes to your contact information, please notify Ginette Gazaille at (514) , extension 2705 or by ginette.gazaille@aon.ca. Aon Consulting Inc.,