employee benefits group

One could think that employee benefits as a practice area is in its infancy, with few South African firms offering a specialised and dedicated focus on the retirement, medical, life and collective investment industries and their interface with the employment environment.

At Bowman Gilfillan we are pleased to offer a service and a group of experienced practitioners who are guiding clients in an environment which is not in its infancy, but rather rapidly entering its troubled teens. With massive legislative interventions by way of amendments to the Pension Funds Act in 1996 and the introduction of a new Medical Schemes Act in 1998, the Employee Benefits Group has had its hands full advising employers, pension funds, medical schemes, plan trustees, pensioners, administrators and employees, among others, about the intricacies of plan governance, administration, investment and risk strategies over the past dozen years or so.

The introduction of compulsory 50% member representation on plan management boards and the creation of the pension funds adjudicator's office significantly impacted the way the life and medical industry operated. This led to much more regulatory and consumer attention on what was previously a relatively opaque aspect of our economy. The introduction of legislation in 2001 to regulate the apportionment and distribution of the value locked up in actuarial surpluses in South African pension funds has piqued interest regarding the fiduciary and contractual duties of various stakeholders in the retirement industry and has been followed by an unprecedented wave of regulatory directives and practice notes and, as something of an aftershock, an unprecedented wave of arbitration and litigation in various tribunals.

Government intervention in relation to risk and community-rating, coupled with inconsistent and often ambiguous policies in the health environment, as well as the devastating impact of HIV/AIDS and Tuberculosis, present significant challenges for medical practitioners, medical schemes and scheme administrators ranging from drugs pricing through governance issues to the affordability of scheme benefits and private medical pricing. Amid all this, neither industry is expecting any slow down in developments as both struggle to manage the fall out from the global financial crisis of 2008; and as the government proceeds with plans for substantial social security reform, including the introduction of a national social security fund, provision of state social security benefits through licensed private operators, a qualified compulsory savings regime and the overhaul of the state medical system.

Understandably, the recent past and near future are characterised by consolidation of plans and service providers. Few areas of legal practice have seen the magnitude of legislative, common law and policy developments that have become the norm in the employee benefits arena, and the team of specialists at Bowman Gilfillan look forward to guiding our clients through the developments that we foresee in the near and immediate future.

the employee benefits team

The core group is made up of four partners, Graham Damant, David Geral, Bob von Witt and Francisco Khoza. All four are members of the Pension Lawyers' Association of South Africa (PLA) and the International Pension and Employee Benefits Lawyers Association (IPEBLA). Graham, Bob and David are also members of the South African Society for Labour Law (SASLAW). Graham has served as an acting judge of the Labour Court and he and David have served on a number of surplus apportionment tribunals. Bob and Francisco have served as independent trustees on multi-employer funds.

The Employee Benefits Group draws on the specialised assistance of a number of experienced practitioners in our Johannesburg (Sandton) and Cape Town offices and our associated Kenyan office, including Michelle David (general pension and healthcare law), Chris Todd (public sector funds, dispute resolution), Priyesh Modi (pension law, administration contracts and due diligence), Betsie Strydom and Mogola Makola (tax), Armando Aguiar and Jason Smit (dispute resolution), Thabang Masingi (rules, due diligence and incentive schemes), Claire van Zuylen (FAIS, insolvency and insurance), John Brand (training and mediation), Tanya Viljoen (forensic).

services

• We strive to give practical, user-friendly advice and legal opinions on pension fund, medical scheme and benefits scheme governance, administration, investments, compliance, tax, surplus apportionment and improper use, unclaimed benefits, prescribed minimum medical benefits, curatorship, liquidation, business transfers, post-retirement medical, and fair labour practice.
• Drafting rules, amendments, policies, administration agreements, investment mandates, professional indemnity claims and managed healthcare contracts
• Dispute resolution: mediation, arbitration, litigation in all forums (Pension Funds Adjudicator, FSB Appeal Board, Medical Schemes Appeal Board, Labour Court, Equality Court, High Court and various ombuds)
• Representations to registrars, tribunals, FSB, CMS, Parliament, SARS and NEDLAC
• Due diligence into administration, valuations, financial statements, rules, minutes, and pension and medical plan transfers
• Commercial (M&A) advice and drafting involving transfer of fund memberships, substitution of employers, indemnity against improper use claims and transfer of licences
• Forensic legal services

why us?

• Admitted attorneys and qualified, certified effective dispute resolution experts
• BEE A rating - 100% procurement spend on our services is recognised
• Independence: we have no exclusive relationship with any particular industry participants and regularly act for different stakeholders, including employers, trustees, administrators, consultants, regulators and service providers.
• Established relationships in retirement and medical funding regulatory environments and with top specialist counsel
• Bowman Gilfillan adopted its own Transformation Charter in March 2004, addressing all aspects of transformation, including ownership, human resource development, enterprise development, procurement and corporate social responsibility. Bowman Gilfillan has committed itself to train 50 black and 50 female lawyers to partnership level by 2014.
• Sole South African member of the prestigious Employment Law Alliance (ELA), the world's leading employer orientated alliance, made up of firms from all 50 States of the USA and from more than 300 other cities worldwide
• South African representative of Lex Mundi, a global association with more than 160 independent law firms in all major centres across the globe. This association gives Bowman Gilfillan access to firms that have been identified as the best in each jurisdiction represented.
• Track record in South Africa, Southern and East African jurisdictions (including our associates, Coulson Harney & Associates in Nairobi) and extensive referral network and relationships in the rest of Africa through the firm's dedicated Africa Group

some of our employee benefits clients

African Oxygen Limited | Alexander Forbes | Avusa Media | Barloworld | City of Johannesburg | Government Employees Medical Scheme | Government Employees Pension Fund | Hewlett-Packard | Investment Solutions | Lekana | Liberty Life | Life Healthcare | NBC | Old Mutual | Pick 'n Pay | SA Local Government Association | Standard Bank | State Street Bank | Tiger Brands | Transnet | University of the Witwatersrand | UBS

On the 28th of September 2009, the Pension Funds Adjudicator released her annual scorecard on the performance of pensions funds and retirement funds in relation to member complaints.  Effectively a number of pensions, provident, retirement and RA funds have been named and shamed for their handling of member complaints.  Please click on the following link to view the scorecard: http://www.pfa.org.za/site/index.asp