It is in the news that government may withdraw its suit if striking public sector workers end their week old action. It would be such a huge mistake to abandon the path of the court to firmly conclusively permanently settle the current pension fight. I noted in my earlier article  The crippling pension fight: the court; the best and permanent solution,  that the question whether it is the employee or the employer who appoints the trustee to manage the 2nd tire scheme is a legal one. Any negotiated settlement that compromises the law on this question is no solution, at least not a permanent one. Consider the analysis of the law that informed this position:

WHO IS TO BLAME – LABOUR, GOVERNMENT OR THE LAW?   

The law from Section 120 (National Pensions Act 2008 -Act 766) provides for the privately-managed 2nd tier scheme funds to be entrusted to trustees who will manage same. They will do this at various levels via the vehicles of fund managers and custodians. Trustees, among other functions, are to diversify the investments to best protect same and for maximum benefits. The employee play various significant roles in the management of the scheme (the trustees, fund managers and custodians), including especially the Sections 141 and 142 powers to nominate/be nominated to serve on the board of trustees.

The employee has the job of fielding, at least, one-third of the member-nominated trustees. Yet Section 129 makes the scheme an employer-sponsored scheme. It gets hazy when Section 211 defines "employer" basically as "the owner of an establishment", and defines "employer sponsored scheme" to mean "a single employer scheme whose membership is limited to the employees of the sponsoring company…" So, government is the employer of the striking public sector employees.

So, government sponsors the scheme. But is the appointment of the trustee the exclusive preserve of the employer as government may have done in appointing Alliance Trustees in an act the striking employees describe as an unlawful imposition? There would not have been a need to seek the court's interpretation if there had been a simple straightforward declaration in the law in answer to this question, and that's the problem. Is this a problem created by the feuding parties or the law? 

LABOUR MUST TAKE FULL ADVANTAGE OF THE SUIT

The suit should be viewed as a perfect chance for labour to counterclaim for all they have been fighting for but are not getting. A fine chance to ask for an order to compel a forensic audit to among others reveal the true state of all funds. A fine chance to claim all the investment returns and/or interest on all the contributions, etc.  After all, like the basic scheme in Section 57 requires the Board of Trustees to “cause to be maintained for each member, an account to which shall be credited contributions of that member.” It also requires The Trust to “send an annual statement of account to members ….” So, it may be said that not a dime of pensioners funds will be lost in the final analysis.

WHAT WILL BE THE USE OF THE STRIKE

It is obvious the 12 unions in the suit have this expected outcome in mind as they instruct their lawyers to file their defence. What purpose then is the strike serving especially after it has forced recourse to a lasting resolution of their grievance? Is there justification to cause loss to pupils and students and patients seeking medical care, when this suit is the true way to get their demands plus interest?

The author is an attorney @ law

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