COMPARISON OF PENSION GUARANTEE SCHEMES (CBA/IPEBLA Conference Quebec City - June 2010)

Transcription

1 COMPARISON OF PENSION GUARANTEE SCHEMES (CBA/IPEBLA Conference Quebec City - June 2010) The chart below outlines the key characteristics in the four nations. Additionally each speaker has produced a short paper highlighting one major development in the application of the guarantee scheme in their nation, and - where relevant - any looming crisis as generally mentioned by current commentators Country Canada Germany United Kingdom United States Date Established Who Is Responsible For The Fund Superintendent of Financial Services, the regulator of financial services in Ontario (including pension plans) is responsible for the Pension Benefits Guarantee Fund (PBGF) Board of Management and Supervisory Board of the Pension Assurance Association (Pensionssicherungsverein PSV), a private insurance association to cover company pensions in case of insolvency bestowed with the public authority to raise levies under the supervision of the Federal Agency for Financial Services (BAFin). Pension Protection Fund (PPF) established by Pensions Act 2004 (replacing a fraud-only scheme established by Pensions Act 1995). PPF Chairman is appointed by government, but, together with the Board, has independent duties. Other members of first Board were also appointed by government, but the Board itself appoints to fill subsequent vacancies (or government can, in default). The Pension Benefit Guaranty Corporation. PBGC is managed by a Director who is appointed by the President, and who reports to a Board of Directors consisting of the federal Secretaries of Labor (who serves as Chair), Commerce, and Treasury. Page 1 of 11

2 Whose Benefits Are Covered? Ontario employees in a defined-benefit, registered pension plan that is regulated and registered with a supervisory authority in Canada Multi-employer plans, negotiated cost plans, and jointly-sponsored pension plans are excluded. Many public-sector plans are also specifically exempted. Defined-benefit pensions and vested expectations of employees covered by pension plans predominantly with straight commitment of employer without external funding but with pension reserves in the balance sheet of employer as well as certain funding vehicles (e.g. support fund, new pension fund) but generally neither direct insurance nor traditional pension fund because of their insurance character. Defined Benefit (DB) plans (save for very minor exceptions), generally in the private sector, but with some non-guaranteed public sector schemes. Since April 2005, 150 plans have completed their assessment period and transferred to the PPF, with 46,393 members. Defined benefit pension plans that meet certain tax qualification requirements and that do not fall within one of several exclusions from coverage (e.g., government plans, church plans that have not elected into coverage, and professional service plans that have never had more than 25 active plan participants). Plan must have existed for at least three years. Source of Revenues Levies on employer/sponsors whose plans are covered. The levy only applies to the members employed in Ontario. Levies on employers whose plans are covered. Annual levies plus assets transferred from partially funded plans (plus investment returns, borrowings etc). Levy is payable by plan, although many employers pay directly rather than through their funding obligation to the plan. PBGC is funded by five sources of revenue: (1) mandatory premiums paid for all covered pension plans; (2) a special termination premium ($1,250 per participant, per year, for three years) that applies generally to ongoing employers with pension plans that have terminated with underfunding; (3) recoveries against employers on PBGC s claims for underfunding in terminated plans; (4) assets of pension plans taken over by PBGC; and (5) investment returns on all of the foregoing. Page 2 of 11

3 Revenue Formula If plan is fully funded on a wind-up basis: usually $1 per Ontario beneficiary Underfunded Plan: 0.5% of any wind-up deficiency of up to 10% of PBGF liabilities - 1.0% of any wind-up deficiency between 10 & 20% of PBGF liabilities - 1.5% of any wind-up deficiency over 20% of PBGF liabilities The maximum levy per plan is $4 million. A certain percentage of the value of the relevant pension plan fixed annually by the PSV taking into account the insolvencies occurred in Germany and Luxemburg of the previous year. Such percentage has varied between 1975 and 2008 from 0.03 % to 0.69 % (For 2007 the percentage was fixed at 0.3 %, for 2008 at 0.18 %). The value of the relevant pension plan is basically the aggregate amount of the pension reserves in the balance sheet of the employer as defined in 6a Income Tax Act for unfunded straight pension commitments or the basically equivalent scheduled covering capital for funded plans. For the new pension investment funds (Pensionsfonds) the percentage is reduced to 20% of the general rate. The financial crisis which turned into a global economic crisis with a dramatic increase of insolvencies also in Germany has led to an explosion of insolvency related payments (damages) by the PSV to beneficiaries in the extraordinary amount of 4.05 Billion in 2009, including the so far largest German insolvency of Arcandor. Before, the highest amount of damages was 1.48 Billion in Such increase in damages led to an explosion of the levy percentage from 0.18 % in 2008 to 1.42 % in Fortunately the PSV was well funded so that the actual increase was limited to 0.82 % while the remaining increase was spread out over 4 years until The increase has led some employers to change their pension vehicle from straight commitment to pension investment fund for which the levy is only 20 % of the normal amount. Some employers have requested to lower the levy percentage rate also for Contractual Trust Arrangements (CTA) which represent a nonstatutory but privately incorporated separation of funds. However, the German government and the regulators do not want to change the rigid set of regulations because they consider the CTA as not sufficiently regulated. Experts warn not to change the system because it was sufficiently stable through the 2009 insolvency crisis. Page The 3 of 11 outlook for 2010 is much improved. However, the German government and the Levy has two elements: (1) Scheme based (size of liabilities, number of members etc). (2) Risk based (determined annually by PPF, after industry consultation). Levy is subject to a ceiling, set annually by government. If increased beyond percentage rise in national average earnings, preceded by industry consultation. For the year 2010/11, the PPF aims to collect an overall levy of 720 million. Key risk based factors are plan valuation ratio (on special basis) and likelihood of [employer] insolvency events. Latter is, in practice, assessed by reference to employer s balance sheet strength and credit record. Risk element reduced if assets outside plan are secured in its favour (a popular course flexible, variable) or a guarantee given by an associated stronger employer. There is a flat-rate, per-participant, premium that applies both to singleemployer pension plans ($35 for 2010) and to multiemployer pension plans ($9 for 2010). The flat-rate premium is indexed to wage growth and therefore can be expected to increase over time. In addition, there is a variable-rate premium that applies to single-employer (but not to multiemployer) plans of 0.9% of the plan s unfunded vested benefits (which is generally determined based on ongoing funding assumptions).

4 Example: 3bn liabilities plan paid 1.2m levy in 2009/10 and, after adding external support, this is expected to reduce to 0.7m in 2010/11. These figures include a scheme based element in each year of approx 0.43m and an admin/general element of 0.13m. Industry s main concerns are: 1. Well-funded plans subsidise others, as risk levy is in effect capped. 2. Likely shrinking base of paying plans, at cost-risk if (a) PPF investments fail to match liabilities and/or (b) insolvencies over the medium term exceed assumptions. Page 4 of 11

5 When Does Scheme Apply to a Pension Plan? The plan is being wound up and the Superintendent of Financial Services is of the opinion that funding requirements of the Pension Benefits Act cannot be met, (i.e.) the employer will not be able to contribute the wind-up deficiency. In case of insolvency or failed insolvency procedure due to lack of sufficient funds of the employer as declared by the bankruptcy court or rarely by agreement with PSV to avoid bankruptcy (composition). Essential trigger is a qualifying insolvency event of the plan employer (for multiemployer plans, the last employer), although rarely there can be other triggers eg a foreign employer that is judged by the Regulator as unlikely to continue as a going concern. Unless anti-avoidance provisions apply (eg to exclude artificial attempts to enter the PPF), the insolvency event triggers an assessment period. If plan assets are insufficient (on a formula basis) to purchase at least PPF-level benefits, the PPF takes over the plan assets and replaces the DB liabilities with compensation (see below) paid from the PPF s common fund. For single-employer plans, the insurable event is plan termination in a voluntary distress termination or an involuntary (albeit often consensual) termination initiated by PBGC. To qualify for a distress termination, the sponsor and each of its controlled group members must each meet at least one of four statutory distress tests (liquidation in bankruptcy; reorganization in bankruptcy where the plan must be terminated for the reorganization to succeed; inability to continue in business and pay debts when due unless plan is terminated; or unduly burdensome pension costs due solely to a decline in the covered workforce). Alternatively, PBGC in certain circumstances may terminate a pension plan to protect premium payers or participants. For multiemployer plans, the insurable event is plan insolvency, with PBGC providing financial assistance in the form of loans. Page 5 of 11

6 What Benefits are Covered? The first $1,000 of monthly payments are fully guaranteed, excluding benefit improvements granted within the last 3 years. Benefits above $1,000 per month, and benefits granted within the last 3 years, are paid out at the plan s funded ratio. Members whose age plus years of pensionable service equals less than 50 are not covered, members whose age plus years of pensionable service equals more than 60 are fully covered, with partial coverage for those between 50 and 60 points. All benefits and vested expectations as defined in the pension plan excluding future pension adjustments are fully guaranteed with an upper limit of EUR 7,521 per month per retired employee. For two reasons, compensation is less than 100%: (1) Moral hazard as 100% removal of downside might induce lack of care by plan trustees. (2) Lower cost to industry. For most pensioners, the main cap is on inflation protection (see below). For plan members below Normal Pension Age (NPA), the starting calculation is capped at 90%, and the inflation protection below NPA (as well as beyond it) is capped. High plan pensions (in effect for former high earners) also suffer a severe upper compensation limit (approx 30K pa pension as at age 65, reduced if commencing earlier). Qualifying illhealth pensioners are not capped on entry into the PPF. PPF inflation protection for pensions in payment is limited to the portion accrued after April 1997, and is capped at 2.5% pa. Single-employer plans: Subject to certain limits, PBGC guarantees vested pension benefits earned before the earlier of the plan s termination date or the date the employer s bankruptcy began, including benefits at normal retirement age, most early retirement benefits, and annuity benefits for survivors of plan participants. One key limit is the maximum guarantee, which for 2010 terminations (or 2010 bankruptcy petition dates where the plan terminates during the bankruptcy) is $54,000 per year ($4,500 per month) for a straight life annuity where the participant is age 65 on the later of the plan termination date (or, where applicable, the bankruptcy petition date) or the date he or she starts receiving benefits from PBGC. The maximum guarantee is decreased for younger ages, increased for older ages, and decreased where the annuity includes a survivor benefit. Another key limit is a phasein of the guarantee (generally at 20% per year) where a plan was created or amended to increase benefits within five years before its termination date. Multiemployer plans: PBGC generally guarantees the same type of benefits for multiemployer pension plans as for single-employer plans, subject to certain limits, including a requirement that provisions of the plan providing for the benefit (or for a benefit increase) have been in existence for 60 full months, and a maximum guarantee of 100% of the first $11 of the monthly benefit rate, plus 75% of the next $33 of the monthly benefit rate, times the participant s years of service. Page 6 of 11

7 By contrast, plan cap for that period (save very recent accrual) is 5% pa, and often applies to earlier accrual too. Between entry into PPF and commencement of pension, the inflation protection cap of 5% pa falls to 2.5% pa in respect of pension (or part pension) accrued from April Who Administers the Plan? Superintendent may either act as administrator or appoint an administrator (in practice always appoints an third-party administrator). The Management Board of the PSV subject to supervision by BAFin. The PSV may and does transfer the duty to pay the pensions to insurance companies, at present to a pool of 56 insurance companies under the lead of Allianz Lebensversicherungs AG. Administration is the responsibility of the PPF. Actual benefit payments are outsourced to paid firms of professional administrators, usually on a plan by plan basis. Except in certain rare circumstances where the plan has sufficient assets to pay all guaranteed benefits and closes out in the private sector, the plan is taken over by a successor trustee, which by law need not be, but in practice always has been, PBGC. When are Benefits Settled? Done as soon as possible. Settlement occurs through a combination of lumpsum payments and annuity purchases from license insurance companies. After the last pensioner/surviving dependant has died or with expiration of an agreed composition. During assessment period, plan trustees continue to pay benefits but at PPFcompensation levels (and investment policy may, and normally will, be directed by PPF). Aim is to complete this period within two years, but experience with poor data has caused unexpected delays. First three plans to apply to PPF in June 2005 (on insolvency of their common group) entered PPF in May 2010 (although numerous plans have done it quicker). PBGC pays only very small benefits (with present values not exceeding $5,000) in lump sum form. Other benefits are paid by PBGC over time in annuity form. PBGC has not to date settled these liabilities by purchasing annuity contracts from private insurers. Page 7 of 11

8 What Happens If Fund Exhausted? Liability of the PBGF is limited to the assets in the fund. If the assets of the PBGF are insufficient, the Ontario Government may: - lend money to the fund - provide a grant to the fund Legislation does not address what happens if the fund runs out of money - Liability of PSV is limited to its assets - Gov't may lend money to PSV - Legislation does not say what happens if PSV runs out of money Problem has not occurred since establishment in 1975 and should not occur as the PSV raises levies annually in relation to the insolvencies of the previous year in Germany and Luxemburg, therefore is able to adjust levies if necessary. Furthermore, the PSV will seize any funds and assets of any funding vehicles available. In 2007 (2008) the levies were EUR 816 (500) Mio, the insolvency related payments EUR 940 (730) Mio; insured was a total volume of pension commitments in the balance sheets of employers covered in the amount of EUR 272 (277) Billions in 2007 (2008). Insolvency related payments (damages) soared to 4.05 Billion in The total volume of pension commitments insured with the PSV rose to 285 Billion in PSV-Funds were not nearly exhausted. Levy ceiling can be increased, or compensation reduced. Government can increase levy ceiling. Inflation protection can be reduced by PPF. Percentage compensation for benefits (both the 100% to pensioners entering the PPF and 90% prospective to others) can be reduced by government on the recommendation of the PPF. Fund can borrow (subject to cap). As a legal matter, PBGC is not backed by the full faith and credit of the U.S. Treasury. Therefore, if PBGC were to run out of money, it would have no legal right to obtain U.S. Treasury funds to continue the payment of guaranteed benefits. Of course, as a political matter, if PBGC ever were to run out of money, there would likely have to be some kind of taxpayer bailout. For the 2009 fiscal year (ending 9/30/09), PBGC reported a $21.1 billion deficit for the single-employer program and an $869 million deficit for the multiemployer program. PBGC s stochastic modeling system produces a median deficit in FY 2019 of $25 billion for the single-employer program and $2.4 billion for the multiemployer program. Page 8 of 11

9 Security of Pension Shortfall Against Assets of Insolvent Employer On bankruptcy of employer, the plan has priority over secured creditors only for unpaid current service cost (and employee contributions taken from pay) up to date of bankruptcy. All other employer contributions owed are unsecured debt. Superintendent, on behalf of the PBGF, has a unsecured lien on the assets of the employer for the amount advanced by the PBGF to the insolvency plan. With the court decision to open insolvency procedures or a respective notice of the PSV to the beneficiaries any claims and vested expectations of the beneficiaries against the employer are transmitted to the PSV by operation of law without change in the ranking. The pension claims and vested expectations are transformed into immediate capital claims of the PSV against the employer to be calculated in accordance with actuarial principles. Any collateral obligations, e.g. claims against an insurance or a contractual trust pledged to the beneficiary, follow the original obligation by operation of law (Akzessorietät) and can be realized separately. The assets and liabilities of a support fund, if any, would also transfer to the PSV. Thus the levies raised by the PSV are not the only source of funding of the PSV. Generally, plan trustees are unsecured creditors (although, following agreement with the employer, security may have been put in place). For two reasons, security has become more common: (1) It reduces the risk based element of the annual levy to the PPF. (2) It may enable the plan actuary to certify a recovery plan based on return-seeking assets of a riskier nature. Plan trustees have a priority for a few months arrears of contributions deducted by the employer from members pay (and for company contributions where the plan is contracted out of part of State benfits). The insolvency triggers an employer debt to pay the difference between plan assets and the assessed annuity cost of purchasing benefits. This, usually very large, debt increases the plan claim in the insolvency. PBGC s employer liability claim for plan underfunding is almost always a general unsecured claim in bankruptcy, with limited recoveries for PBGC. However, in some cases PBGC is able to obtain a secured position in advance of a bankruptcy, either based on a statutory lien that arises when the total of missed minimum funding contributions (with interest) exceeds $1 million, or where PBGC negotiates protections under its Early Warning Program or in connection with certain cessations of operations leading to a form of downsizing liability. Page 9 of 11

10 Defined Benefit Funding Rules Employers are required to contribute Current Service Costs plus Special Payments (any solvency deficiency amortized over 5 years plus and goingconcern unfunded liability amortized over 15 years). Predominantly there is no external funding required so that the pension obligations and the relevant expectations are basically represented as pension reserves in the balance sheet of the employer. Such reserves are calculated in accordance with 6a Income Tax Act with the present value (Bar-wert) of the current pension obligation and of the relevant vested expectation (Anwartschatfsbarwert). Such calculation takes into account the possible maximum pension in the future, the probability of its occurrence, actuarial principles and the statutory interest discount of 6 %. The aggregate amount of the present value of all pension claims and vested expectations in the employer balance sheet (Beitragsbemessungsgrundlage) is multiplied with the relevant levy percentage which is fixed by the PSV (Beitragssatz). The relevant levy percentage is fixed taking into consideration the present cash value of all current benefits and vested expectations of all guaranteed insolvency cases in the calendar year, the costs of the PSV (personnel and material costs related to levy and payment administration) and the establishment of a loss reserve (Verlustrücklage) as well as an equalization funds (Ausgleichsfonds). Up to 2006 the expectations did not have to be taken into account so that the legislator decided that "old" expectations had to be financed retroactively with a lump sum payment (EUR 2.2 Billion in total) which may be extended over 15 years (between 2007 and 2021). Almost half of the employers covered by the PSV opted to pay the lump sum immediately. So far there is no awareness of any major uncovered risk of the PSV. Even in the year 2009 with all time high insolvency payments the implemented increase of levies was sufficient to cover the damages. The increase was accepted and settled by the now member employers without great lamentation. The loss reserve Page and 10 the of 11 equalization funds were not touched. EU legislation requires sufficient appropriate assets to meet the assessed liabilities, but permits provision for deficit repair over time. Member States write national provisions to implement this framework approach. UK s Pensions Act 2004 is a mix of detail and permitted plan-specific variation. Both the valuation basis and any recovery plan must be agreed by trustees and employer, but Regulator has power to intervene if it appears that these do not meet parameters. Triennial valuations must be submitted to the Regulator (and annual reports to the trustees). The Regulator scrutinises valuations outside its filter limits. However, its focus on affordability permits longer recovery plans where, in effect, there is no choice, as became clear from guidance notes during the recent credit crunch. Liability assessment now has the EU label technical provisions. The discount rate for these must be prudent, even if the rate for the recovery plan is higher. The funding rules for singleemployer plans under the Pension Protection Act of 2006 ( PPA ) generally limit the choice of interest and mortality assumptions; reduce the ability to smooth fluctuations in asset values or interest assumptions; restrict the ability to use extra contributions in one year to satisfy future years contribution requirements; require essentially immediate payment of normal cost (primarily for current service) and provide for seven-year amortization of funding shortfalls; and impose a number of benefit restrictions (e.g., on lump sum payouts, benefit increases, or ongoing benefit accruals) where plan funding levels fail to meet specified targets. The generally tightened funding rules under PPA, coupled with recent economic developments, have greatly increased funding requirements for many employers and have led to calls for significant funding relief, with legislation currently (as of 5/31/10) pending. The funding rules for multiemployer rules differ substantially from those for single-employer plans. PPA provides more funding time for plans in financial trouble, classifying them as endangered or critical and requiring them to develop funding plans and, some cases, implement benefit reductions, to improve funding over time.

11 Regulator guidance permits technical provisions that reflect the strong ability of the employer to underwrite any risks that the actual experience in future might vary from the assumptions. This enables a discount rate above a risk-free rate. The recovery plan can look at actual investment strategy, and be based on a higher assumed rate of return, subject to sufficient prudence. Page 11 of 11