By Joseph Ewart Layne
Imagine what the Maurice Bishop International Airport would look like today if, following the 1983 invasion, the work commenced by the PRG was not completed. Imagine! Imagine what we would have now. The runway was already completed and quite usable. It was used as an air base during the invasion and was capable of use for commercial airlines even in its incomplete state. It would be an improvement in many respects on what existed before. But it would be inadequate, without proper facilities for customers, etc.
Pension Disqualification Act and NIS
|Joseph Ewart Layne is a graduate of Hugh Wooding Law School. He is the holder of an LLB (Honours) and an LLM (in Commercial & Corporate Law) from London University; and he recently completed an LLM in Legislative Drafting from UWI (St Augustine)|
Just over one month before the invasion and the demise of the Revolution, on 16th September 1983, Peoples Law No. 24 of 1983 aka the Pensions Disqualification Act (PDA) was gazetted. It was proclaimed that the PDA was effective as from April 4, 1983, the same day the National Insurance Scheme (NIS) Act took effect.
The effect of the PDA was that civil servants, police officers, prison officers and teachers appointed after April 4, 1983, were made ineligible to receive a pension under the various pension laws that existed before that date. However, they were eligible for a pension under the NIS.
Today the issue of pension for public servants is a hot issue. Persons who joined the public service after 4th April 1983 are now coming of retirement age. In this context there is a prevalent view that the PRG is responsible for the disadvantage that post 1983 public officers face.
Meant to be temporary
Despite the passage of the PDA, it was never the intention of the PRG that public officers would be left stranded with only the pension provided by the NIS. Short changing public officers in that way did not fit in with the outlook, policies or practice of the PRG.
It is significant that:
• The PRG did not attempt by the PDA to affect the pension rights of workers who joined the service prior to April 4, 1983. By Peoples Law No. 9 of 1979 the PRG made it the law that the pension rights of public officers existing under the Constitution were to be respected. Under section 92 of the Constitution a public officer is entitled to the pension benefits which exist on the date he or she is appointed.
• By Peoples Law 24 of 1983 the PRG substantially increased the pensions of public officers by between 8.5% and 10%.
• The PRG through its policies and enactments such as the Trade Union Recognition Act and the Maternity Leave Act established its pro working class credentials from the outset of the Revolution.
The PDA was intended as a stopgap measure, a temporary measure, to bridge the transition from traditional pension schemes to the NIS. It was deemed necessary because of the impact of section 92(2) of the Constitution which, as stated above, was in force pursuant to People’s Law No. 9 of 1979.
Without the PDA, it would have meant that an officer who joined the service after the commencement of the NIS would have had a right protected under section 92(2) to two pensions: the pension under the Pensions Act and the NIS pension. Such a situation would have been financially unsustainable for the government.
On the other hand, it was obviously unfair that a public officer who joined the service on or after April 4, 1983, upon retirement, would only be entitled to receive the minimum NIS pension. As will be addressed later in this article, the minister of social security was given certain powers under the NIS Act to remedy the obvious unfairness.
Pension for all
NIS is a concept that was around long before the PRG. National Insurance Schemes similar to what was introduced by the PRG is to be found in all English-speaking Caribbean nations, from Guyana in the south to The Bahamas in the north.
NIS principles are enshrined in the International Labour Organisation (ILO) Social Security (Minimum Standards) Convention, 1952. It flows in part from philosophical position that those who work hard and contribute to build up a nation in their productive years, by expending labour and paying taxes to develop and upkeep the nation, deserve to be secure financially after their productive years.
This philosophy of course fitted with the PRG orientation. The forerunner of NIS in Grenada was the Provident Fund for agricultural workers. The NIS which was enacted by the PRG was part of a Caribbean-wide project executed by the ILO.
Less than before
Prior to NIS public officers were the only workers in Grenada with a statutory right to a monthly pension. Their pension was paid out of the consolidated fund. Public workers did not contribute to their pension. The NIS was designed as a contributory scheme into which both employees and employers contributed towards pensions. NIS provided a minimum pension for all workers. However this minimum was less than what public officers received under the laws that existed prior to the PDA.
As Price Findlay J. commented in the case of Armstrong v. The Attorney General with regard to pension for public workers: The PRG was “aware that adjustments would have to be made to the provisions of the [NIS] Act to have its benefits brought in line to be not less favourable than those [previously] granted.”
Minister given power to remove disadvantage
With that awareness sections 46 and 47 of the NIS Law granted the minister for social security the power to take the necessary measures to remove the disadvantage.
Since the PDA only applied to persons who were appointed after April 4, 1983, it meant that the minister had many years’ breathing space to design a system to remove the disadvantage.
Nothing done by minister
However, nothing was done in the years following the demise of the Revolution. This inaction was noted by Chief Justice Byron in the case of McQueen v. The Attorney General. Byron C.J. stated that the PDA and the NIS “evinced the legislative intention to create new terms of employment for public servants employed after [4th April 1983] by removing them from the Pensions Scheme”.
He stated further, “It seems to me that the legislative intention was not fully executed because no orders have been made to create a new pension regime for public servants under the National Insurance Law or otherwise”.
The unfinished airport
The unfinished airport that you imagined with me at the start of this article is a good metaphor for the NIS. The PRG started something quite good. Those who came after 1983 basically left it where they met it. We still have something that is useful but defective.
The most obvious defect is that public servants who joined the service after 4th April 1983 are only entitled to the NIS pension. The NIS pension is clearly inadequate when compared to what public servants who joined prior to April 4th 1983 receive.
It is not the PRG that is at fault. It is the fact that all governments after 1983 dropped the ball by failing to employ the power built into the NIS Act to put right a glaring flaw.