Aggrieved retirement fund members, who have been prejudiced for years by unfair conduct or discriminatory rules on a wide range of issues including poor withdrawal benefits, now have more power to fight back.
Many of the practices employers historically imposed on employees can now be challenged through the fledgling Commission for Conciliation, Mediation and Arbitration (CCMA) or bargaining council established in terms of the Labour Relations Act or through the Pension Funds Adjudicator.
Pensions and labour lawyer Peter Strasheim said at a recent Pension Lawyers Association seminar that the decisions of some retirement fund trustees and employers could be ruled out of order in terms of the Labour Relations Act and Industrial Court decisions.
Strasheim says retirement fund trustees and employers may no longer make unilateral rule changes to your pension fund which affect substantive fund benefits.
Many existing rules and practices need to be re-evaluated to ensure they do not amount to unfair labour practices.
Strasheim says that some trustees or companies may initiate significant rule changes to retirement funds before the end of 1998, when it will be compulsory for all retirement funds to have boards of management (trustees) of at least four members and members will have the right to elect 50 percent of these members.
Before the Labour Relations Act and the new Pension Funds Act amendments, employers had virtual carte blanche to change rules of funds.
Strasheim says that the rules of most funds were drawn up by employer-appointed trustees and are not the result of collective bargaining negotiations. The result is that rules are often heavily biased towards the employer, particularly with regard to the amendment of rules, the appointment of trustees and the setting of withdrawal benefits.
Strasheim says membership of a retirement fund is often a compulsory requirement in a service contract.
Consequently the courts have ruled that a retirement fund benefit is an element of your terms and conditions of employment.
Industrial Relations Court cases have stated that employers "may not unilaterally change employees' terms and conditions of employment, save for certain exceptional circumstances".
The Labour Relations Act now allows you, as a fund member, to refer a dispute about unilateral rules or procedure changes, which cannot be resolved with the trustees or employer, to the CCMA or a council.
You can ask that a planned change be stopped or that an already implemented change be reversed. The trustee or employer must comply within 48 hours.
Strasheim says changes to benefits and substantive rule changes can only be made after negotiations have taken place between employers and employees/trade unions.