Jamaica Gleaner

That bothersome issue of pension surplus

- Henley Taylor Guest Columnist

PENSION SURPLUS represents the excess that accrues, over time, by capital accretion, less the standard financial obligation­s that are discharged to beneficiar­ies and active stakeholde­rs, such as fund managers and trustees.

Capital accretion refers to the growth of funds within the pension scheme. This can occur via a number of investment options and strategic actions.

All pension schemes invest combined contributi­ons in a number of different investment instrument­s, to diversify and minimise risks to these funds.

In Jamaica, the surpluses so generated have proven to be the source of much contention between employer and employees. This is so because the rightful designatio­n of these surpluses have often been blurred, presenting great controvers­y and acrimony. Equally, the sheer magnitude of these surpluses have caused many companies to get ‘green-eyed’, and to use every possible means at their disposal, to selfishly and exclusivel­y secure for themselves.

Indeed, most pension schemes have an employee and employer component, in some predetermi­ned ratios, based on the particular scheme, and the trust deed that governs how such schemes are to be operated.

Essentiall­y, there are two types of pension schemes: the definedben­efit (DB) scheme and the defined-contributi­on (DC) scheme.

The defined-benefit scheme is one in which there is a defined benefit to contributo­rs upon retirement. And this defined benefit is calculated, based on total contributi­on, last income upon retirement, and the number of years worked. Based on normal contributi­ons, a pensioner can only receive a maximum of 66 2/3 per cent of last income. The primary sponsors of such schemes are the workers, and they have the option to contribute an additional five per cent of their income to take them to the maximum allowable 10 per cent of income.

In a defined-contributi­on scheme, both workers and employers contribute jointly to the pension of workers, in a matching way. Like the defined benefit scheme, employees also have the option to contribute the optional five per cent of income to take them to the maximum 10 per cent allowed by the pension rule.

In both types of pension schemes, huge overhangs or surpluses generally accrue, and this, quite often, is the source of much vitriol. In most definedcon­tribution schemes, the issue of the surplus, is less contentiou­s because, such scheme requires joint participat­ion between the employer and the workers. Consequent­ly, such surpluses are usually shared upon the windingup of this type scheme.

On the other hand, the definedben­efit scheme usually presents greater problems. And this is so unfair because, while the workers are the principal or exclusive sponsors of the scheme, some employers have sought to control the surpluses so generated by the workers’ own contributi­ons. Indeed, it must be noted that, there has been at least one celebrated case where an employer has sought to challenge the legitimacy of workers to claim such surplus that their own contributi­ons have generated. In fact, such employer has sought to use ultra vires means to coerce worker trustees to control the surplus.

This case records the fact that this employer sought to control the surplus on the basis that it was the self-appointed guarantor of the funds, that is to say, if the fund ran into a deficit, it would be its responsibi­lity to return it to a surplus. Yet, such employer did seek to influence and coerce worker trustees to sign a document stating that in the event that the pension fund is wound up, such surplus should automatica­lly revert to the employer, NOT the employees.

Clearly, if such ownership of the surplus was bona fide, why would the employer seek to coerce worker trustees to sign such document in an attempt to give it exclusive control over the surplus? The matter of surpluses in pension schemes, particular­ly

defined-benefit schemes, must be resolved in a legal and equitable manner.

Injustice must not be allowed to triumph. And employers with deep pockets, global connection­s and highprofil­e lawyers should never be allowed to use such strengths to cheat workers who have taken all the risks to invest their incomes in pension schemes.

 ?? Email feedback to columns@gleanerjm.com and henley_tylr@yahoo.com. ??
Email feedback to columns@gleanerjm.com and henley_tylr@yahoo.com.

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