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Military Regime trashes pensioners’ contract (2011)(blogs)

18/03/2012
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  The illegal Military Regime has announced their plans to go ahead with their FNPF restructuring (more later, on that), and effectively, they are trashing the contracts that FNPF had signed with pensioners.

Existing pensioners will be give a choice of receiving back their final balance when they retired (in nominal dollars, of course), or go on to the new single pension rates which will range from 8.7% if you are 55 to 12.3% for those 70 years old and over.

This will give existing pensioners a “Hobson’s choice” or more correctly, the “Morton’s Fork” between two options,  both of which will imply an effective reduction to their existing contracted entitlements.

Or they can go ahead with the Burness/Shameem legal case (supposed to be heard in February 2012) to try and stop the Regime from changing their existing contracts.

But of course, there may yet be another Military Decree stopping any challenges in court.

Before that choice is thrust down our throats, and while we beg the Military Regime for “permission to discuss our just grievances in the media”, FNPF pensioners might want to clear their cobwebs on the following five statements, and especially Statement 3:

1.      Existing FNPF pensions cannot be legally reduced under the FNPF Act.

2.      The FNPF Act does not allow FNPF to vary the pension rates differentially for allegedly     high and low income pensioners.

3.      FNPF has the financial capacity to pay existing pensions at their current rates for another         18 years, if the Buffer Fund had been properly credited with interest payments from 1975    to the present, AND if the provisions of the FNPF Act had been strictly followed by    successive Boards.

4.      Successive Fiji governments, including the current illegal Military Regime, have been     directly and solely responsible for whatever mess exists at FNPF today

5.      The only proper way to change the FNPF Act is for an Independent Expert Commission    of Inquiry into FNPF to make recommendations which should only be considered by a          future elected Government.

Essential background

   The Fiji National Provident Fund is not a “government owned public enterprise” belonging to the Fiji public and tax-payers, but it belongs only to the workers whose contributions have funded it.

Historically, however, FNPF has been totally controlled by successive governments, from its inception till today.

The FNPF was originally intended to be a compulsory savings scheme for workers, with all the savings and interest thereon to be returned to the worker as a lump sum on retirement (read the Legislative Council debates in 1968).

The system was then lawfully changed by Parliament in 1975 to introduce a pension annuity option, which was set at the high rate of 25% for single pensions, to encourage retirees to take the pension rather than the lump sum.

Despite that high rate of pension, the pension uptake was way less than 15%.

Then when the uptake proportion did begin to rise (late 80s and early 90s), an ILO study (1993) advised that the annuity rate should be brought down gradually to 10%.

But the 1998 Parliament decided to bring the pension rate down to 15%, gradually over ten years.

Even if actuarially unwise, this was a lawful decision made by Parliament, thereby legally under-writing the contracts which all pensioners have entered into.

   To break these contracts is to make a mockery of justice, law and order, constitutionality, and the sacred powers and responsibilities of Parliament, and the people it represents.

But why is it that the ILO projection that in the long term some 35% of retirees would take the pension, has been proven inaccurate?

The FNPF’s pension gamble: the “risk of dying early”

   Why is it that while actuaries have concluded that the annuities between 15% to 25% have been excellent value, the historical reality has been that the majority of retirees (more than 70%) have not been taking up the “good” pension offers?

Of course, the return was high.  But there is the risk of dying early and losing all thereafter.

This is a tough choice even for educated people, and even at the current allegedly high 15% pension rate.

I suspect that many of the retirees who took the pension option would be financially well-off and able to handle the risk of dying early.

Don’t forget that while some pensioners have found the annuity excellent value (which FNPF harps on about), some retirees have also died before they “recovered their life savings”: their families have lost out (no comment from FNPF on these losers).

Recent developments

   The recent Promontory Report, based on the actuarial study by Mercer, and examining the recent poor investment and income record of FNPF, recommended the further reduction of the single pension rate to 9% but only for future pensions (not existing pensions).

This Promontory Report has been very selectively used by the FNPF Board and Management to justify their planned changes to existing pensions.

At one stage FNPF Management stated that all annuity rates (existing and future) would be reduced to around 9%.

Then they backtracked to some nebulous proposal  that they would reduce the existing pensions only of those above some “poverty line” (to be decided by themselves).

Coconut Wireless now suggests they have dreamed up another “scheme” to give the illusion of “choice” to existing pensioners.    Wait for the 2012 Budget on Friday 25 November 2011, to reveal all (and more).

But pensioners must not forget that existing contracts of pensioners are legally valid and cannot be forcibly changed, by offering alleged “choices” to pensioners.

   FNPF offered legal contracts to pensioners, approved by Fiji Parliament

   The undisputed facts are:

(a) The current pensions were all freely offered by FNPF whose Boards have always been totally controlled by Government: all  FNPF Board members have been appointed by Government (while Employers’ Associations and unions may nominate representatives, the final choice and appointments are made by the Minister); and the Chairman of the Board has always been appointed by Government.

(b) All decisions on annuity rates have been made by the elected Parliament: the FNPF Board can only make recommendations, not decisions.

FNPF initially thought that Section 63 of the FNPF Act which states that the FNPF Board may “prescribe the amount, frequency of payment and duration of any annuity payable under the provisions of paragraph (b) of section 64” as may be” gives the Board an authority to reduce existing pensions.   This was a completely wrong interpretation, as that section simply refers to Section 64 (b) which gives powers only over the method of dispensing the annuity already decided upon by parliament as a percentage of whatever balance the pensioner leaves with the Fund.

Once that percentage has been fixed (and the OP-9 form specifies both the percentage and the corresponding dollar amount), the amount of the total annual annuity in dollars and cents cannot be changed- as that would be changing the percentage of the final balance being given to the pensioner in a legal contract on the OP-9 form.

Nowhere in the contract (the 9-OP form) is there any clause which warns the pensioners that their pension rate may be changed in the future by the FNPF Board at its discretion.

Any attempt by the FNPF Board to vary the annuity rate, already offered to and accepted by pensioners, is therefore totally contrary to the FNPF Act and in breach of the laws on contracts.

FNPF has the full capacity to enter into contracts.

Article 4 of the FNPF Act states that the FNPF Board shall be a body corporate and shall, by the name of “The Fiji National Provident Fund Board”, have perpetual succession and a common seal …. The Board may sue and be sued in its corporate name and may enter into contracts.

   A legal corporate body (FNPF) made a clear offer (on Form 9-OP) to the retirees that should they choose the pension option (whether single, joint or combination) and leave all of some of their savings with the FNPF, they would receive in return an annuity (expressed explicitly in dollars and as a fixed percentage of their final balance) until they (or their nominated partner) died.

Legally, in a civilized world without arbitrary Military Decrees, the FNPF (and the Board Members) may be sued if they break these contracts.

If FNPF Board Members cannot be sued in Fiji, it should be investigated if those with foreign residency, can be sued in their home countries.

Promontory advised that existing pensions cannot be altered under contract law

   The Promontory Report stated (paragraph 25):

“There have been some suggestions that existing pensions should be

withdrawn, capped or reset at a discount. … Any retrospective adjustment of

existing pension benefits would be difficult under contract law……  While an

adjustment to existing pensions remains a possibility (huh?), it is not further

considered in this paper”.

   Promontory based the rest of their analysis and recommendations on FNPF not breaking its contracts with existing pensioners.

The Promontory Report clearly separated the problem of funding existing pensioners, from the problem of funding future pensioners, whose annuity rate may be legally reduced by any lawful government.

FNPF cannot vary the pension rates differentially for low and high incomes

   The FNPF Board previously announced that they will not reduce the existing pensions of some 89% of pensioners whose pensions are “below the poverty line”, but they will reduce those of the other 11% earning higher pensions.

   However, Section 12 B of the FNPF Act specifically requires the Board “to act impartially towards beneficiaries and between different classes of beneficiaries.”

Forget poverty lines, etc etc.

FNPF has the financial capacity to pay existing pensions

   There are several legitimate sources to fund existing pensions.

Source 1:  The Pension Buffer Fund

   This was expressly set up in 1975 to fund pensions, with all members injecting 2 cents in the dollar between 1975 and 1998, when the injection was stopped by Parliament.   The Buffer Fund was then absorbed into the General Reserve in 2000.

However the account was still maintained, and continued to receive all the final balances of members who chose the pension option.

But successive FNPF Boards wrongly neglected to pay interest on this Buffer Fund although the Fund earned income on these funds.

   My calculations show that the properly credited Buffer Fund would in 2010 have amounted to some $870 millions (or a bit less given that the interest income has to be spread over all the shareholders’ funds), which would cover around  18 years of the current annual pensions payout of around $47 million (and probably more as high earning pensioners gradually die off).

   It is false of the FNPF to claim that they do not have the financial provisions to pay the existing pensions at the existing rates.

Source 2:  The savings from pensioners who die early

   While FNPF has given numerous tables alleging cross-subsidization of existing pensioners by current contributors, it has never acknowledged nor given any data whatsoever on the numbers of pensioners who have died before they could “get back their money”.

These “savings for FNPF from those who die early” partly cover the costs of those annuities of pensioners who live on (allegedly for “too long”).

Source 3:  The General Reserve

   The General Reserve has also been contributed to by pensioners and has always been expected by the actuaries to be the final guarantor of pensions.

Ultimate Source 4:   The Fiji Government

   The FNPF Board is authorized under Section 10 of the FNPF Act:

If the Fund is, at any time, unable to pay any sum which is required to be paid under the provisions of this Act, the sum required shall be advanced to the Fund by the Government and the Fund shall, as soon as practicable, repay to the Government the sums so advanced”

   The FNPF Board can legitimately make a case to the “Government of the Day” that they should pay any shortfall (which is not required as I state above).

It has been past governments who have enjoyed easy finance at relatively lower interest rates than charged by the private sector, and they moreover are responsible for whatever financial mess the FNPF currently finds itself in (see below).

Note FNPF Boards’ Continuing Breach of Section 8 of FNPF Act

   Section 8 (FNPF Act) requires that “the Board shall, having considered the recommendation of the General Manager”, declare a rate of a rate of interest to be paid to members’ credit, not less than 2 1/2 per cent per annum provided that:

no rate of interest exceeding 2 1/2 per cent per annum shall be so declared, unless, in the opinion of the Board, the ability of the Fund to meet all payments required to be paid under this Act is not endangered by the declaration of such rate”.

Yet year after year, the FNPF Board has declared a rate of interest higher than 2 ½ percent. Even this year (2011) is has credited more than 5% to Members’ funds.

Yet the current FNPF Board and Management allege that existing pension rates are unsustainable, and have been known to be unsustainable for more than a decade.

The FNPF Board has been in breach of the FNPF Act by declaring rates of interest which are in excess of 2 ½ percent and at the same time claiming that the Fund is unsustainable.

While not doing what it is specifically required to do by the FNPF Act, the FNPF Board is attempting to do what is nowhere authorized in the FNPF Act, namely to reduce existing annuities contracted to existing pensioners or their beneficiaries.

Governance issue: refusal to make public all reports and FNPF data

   Under the provisions of the Act, the FNPF and all its assets belongs to the current contributors and pensioners. The FNPF Board are only trustees, and together with the FNPF Management, are supposed to be accountable and transparent to the members.

Yet, for several years now, both the FNPF Board (current and preceding ones) and Management (current and preceding ones) have adamantly refused to make available to the beneficiaries of the Fund, all the various Reports and relevant data on the sustainability of the FNPF.

They make a mockery of the “Core Values” which FNPF proudly and falsely advertises on its website:

Accountability: Being answerable and having the courage and honesty to take ownership of our actions; Fairness: Treating everyone in an equitable and nondiscriminatory manner; Integrity: Being honest and fair to all our stakeholders; Excellence: Always maintaining highest standards.

   The Board Members and FNPF management ought to be taken to task for their abject failure to abide by these “Core Values”.   The latest data on their “Key Indicators” webpage ends with 2007 data- already four years out of date.  How pathetic.

Publicly available consultants’ Reports have serious gaps in data, and none of them give the details of actuarial projections based on the life expectancies; therefore one has no idea if their assumptions and analyses are correct.

Some of their assumptions about future life expectancies may even be wrong.

Possible errors in actuarial assumptions

The Promontory Report’s recommendations were based on the Mercer actuarial study. The Mercer presentation at the symposia organized by FNPF stated that the mortality rates they used were derived from “the 2008 Fijian population life tables prepared by the World Health Organization” (no problem) but they used “mortality improvement based on experience of the Australian population over 25 years as reported in the current Australian Life Tables (2005-07).”

Demographers will know that projections of improvements in Australian mortality cannot be used to predict future trends in Fiji’s mortality. Australia’s life expectancy is rising, their people are living longer, and drawing pensions for longer. If the Australian patterns of mortality improvement did apply to Fiji, then Fiji’s people would also be living longer, and the sustainability of FNPF pensions may indeed require relatively lower pension or annuity rates for Fiji.

However, if Fiji’s mortality falls or stagnates, then Fiji’s pensioners will die earlier than predicted by Australian trends, and Fiji’s pension annuity rates would correspondingly need to be relatively higher.

All indications are that Fiji’s mortality will not fall like Australia’s and Fiji’s life expectancies will not rise like Australia’s (detailed explanation of this is excluded here).  Similar errors seem to have been made by the ILO actuarial projections.

Government’s excessive role in FNPF

   Note that the Government-controlled FNPF Board has been the ultimate decision-maker on:

(i) all large lending decisions (how much and interest rates) including loans to Government.

(ii) the interest rate to be credited annually to the FNPF Members.

(iii) the three historical decisions approved by Parliament: the original 1975 decision to pay 25% annuity on single pensions; the 1998 decisions to reduce pensions gradually from 25% to 15%, and the stopping of contributions to the Buffer Fund.

(iv) all large investment decisions, including the questionable price paid for the majority shares in ATH which independent assessors thought may have been more than $100 million or probably up to $150 million in excess; and the cost blowout at Natadola and Momi.

Even the Promontory Report criticized the government’s excessive and negative influence on the FNPF:

Paragraph 90 of the Report:

“In discussion with stakeholders… appointments have been seen as highly politicized and blamed for some of the poorer investment outcomes. A common theme was that Government had interfered too much with operations and decision-making of the Fund.

   Paragraph 91

   “Policy Principle: the FNPF Board should comprise a majority of independent members. The Board’s primary fiduciary responsibility is to act first and foremost in the interests of the fund members, not representative groups, Government or even the wider interests of Fiji.”

   Promontory advised that any new legislation needed to spell this out explicitly and the law be strengthened in this regard.

It can be seen therefore, even from a Report that was commissioned by the FNPF itself, that FNPF contributors and pensioners have had no say whatsoever in any of FNPF Board decisions and that Government has had over-riding influence.

Poor  investment decisions by FNPF Boards

 

   A very important question for investigation is whether successive FNPF Boards have been giving loans to the Fiji Government at relatively low rates which the governments would not have received from the commercial banks, locally or internationally.

 

Would a truly independent Board and FNPF, free to invest internationally and locally, have been able to receive higher interest rates from the Fiji Government which could have resulted in higher returns to Members and higher sustainable annuities to pensioners?

 

Is the current liquidity crisis of FNPF due to bad Board decisions made on the large investments at Natadola, Momi, GPH, FSC, Tappoo City etc which are not returning the loans on time?

 

Would an independent FNPF Board have made the large loans to FSC which has technically been insolvent for a couple of years, and whose problems have been worsened because of the Regime’s refusal to hold elections in 2009 (hence EU refusal to grant 300 million dollars for sugar industry restructure?

 

How much has FNPF lost in income and capital value because of Fiji Government’s decisions through the RBF to bring back FNPF investments from abroad?

 

The Military Coups’ impact on FNPF

 

   To what extent is the current FNPF crisis due to lack of investment, lack of economic growth, lack of growth in employment and incomes and FNPF contributions, due to the continuing political uncertainties and the results of the 2006 Military coup and the 2009 purported abrogation of the 1997 Constitution?

 

To what extent is the high rate of inflation which is eroding all pensions and funds in the Pension Fund caused by the massive deficit financing by the Government (using easy funds obtained from the FNPF), and lack of economic growth?

 

These are all questions which would need to be examined in detail with full facts and figures, and all available reports, made available to an expert Commission of inquiry, and to Fund Members and Owners.

 

Amendments to FNPF Act Only through an elected Parliament

 

   All changes to the Fiji National Provident Fund Act have historically been implemented through elected parliaments, with full responsibility falling on the people’s own elected representatives, whether the decisions were correct or incorrect.

 

This is the only way in which such drastic changes should be made to a legislation that will affect the lifetime savings and pensions of hundreds of thousands of waged and salaried persons in Fiji, and impact on the wider economy.

 

There should first be an Independent Commission of Inquiry which would examine all the financial, economic, actuarial expert analyses and reports, consider the past history (including key decisions, successes, failures, errors in judgment by FNPF Managements and Boards etc ) and give reasoned and balanced advice on the future path for the Fiji National Provident Fund.

 

If the Independent Commission finds that the actuarial studies, properly revised to Fund members satisfaction, do indicate the need for reviews of the pension fund, then that would no doubt go ahead, but only with social approval and social consensus, through an elected Parliament.

 

All calls for greater accountability of FNPF Board, have been ignored by this Military Regime, giving the lie to their Charter’s hollow  promises of accountability and transparency.

 

   Continuing media censorship, takes away our basic human rights of freedom of expression including our rights to discuss publicly our just grivenances..

 

   Pensioners’ legitimate interests are just one casualty of this Military Regime.

 

   The breaking of contracts with pensioners will be merely another example of the many legal and social contracts this illegal Military Regime has broken, and continues to break,  with impunity.

 

   The defense of pensioners’ rights are part of the bigger challenge to defend all our human rights in this country. 

 

   These challenges cannot be separated.   To separate them is to basically state that one wants our own rights to be safeguarded, while others’ basic human rights are others’ problems.

 

  

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