National Provident Fund Final Report [Part 75]
Below is the seventy-fifth part of the serialized edited version of the National Provident Fund Commission of Inquiry Final Report that first appeared in the Post Courier newspaper in 2002/3.
NPF Final Report
This is the 75th extract from the National Provident Fund (now known as NASFUND) Commission of Inquiry report. The inquiry was conducted by retired justice Tos Barnett and investigated widespread misuse of member funds. The report recommended action be taken against several high-profile leaders, including former NPF chairman Jimmy Maladina. The report was tabled in Parliament on November 20 by Prime Minister Sir Michael Somare.
Executive Summary Schedule 8 Continued
Air Niugini Employees Demand Payout Of Their Employee Contributions/Communication Unions Demand Payouts of State’s Contributions
The PTC(C) Act provided the employers of the old PTC with an option of a payout of their own component of the benefits from POSFB.
No such option was provided for the Air Niugini employees, but there were numerous requests from Air Niugini employees for payout of their own share of contributions. This was related to the fact that Air Niugini management, including trustee Koivi, had reached an extra legal agreement with the union that NAC employees who continued in employment with Air Niugini would be offered the payout of their contributions previously made to POSF.
Mr Kaul advised the NPF board during their 111th board meeting on February 20, 1998 that it was anticipated Air Niugini employees would demand payout of their own contributions following the transfer of funds from POSF. The board resolved to offer Air Niugini employees payout of their own contributions during this meeting. This was contrary to the NPF Act and not sanctioned by any other legislation.
On February 24, 1998, Mr Kaul informed Air Niugini that the NPF board had resolved in their 111th board meeting on February 20, 1998, to payout the employee contributions to the employees. On the same date, the NAEA was also advised of the NPF board’s decision.
The NAEA acknowledged Mr Kaul’s letter and responded with requests for clarification on other issues raised by Mr Kaul in his letter of January 24, 1998.
PNGCWU Queries Timing Of The Payout Of The State’s Share And Drafting Of The Deed
On March 3, 1998, Mr Kaul responded to PNGCWU queries regarding the payout to former PTC employees of the State’s share of contributions.
Mr Kaul explained to the PNGCWU that there was no provision in the PTC(C) Act 1996 for the payout of the employers (State) component of the contributions.
In any event without receipt of funds from the state, NPF could not and would not payout the State’s share of contribution in the manner being requested by the unions. NPF’s current legal obligations were limited to withdrawals, which were permitted under the NPF Act (i.e. on retirement, death or retrenchment).
Mr Kaul directed Mr Leahy on March 25, 1998, to immediately finalise the amendments to the deed.
The draft deed records that the State’s total unpaid contribution amounted to K23,785,056.23.
POSFB wrote to NPF on April 16, 1998 confirming the total funds being transferred to NPF as:
“The total fund share of the transfer is K17,625,057.02 and this has already been paid to NPF. The State share component is K24,475,074.65, which has increased from the previous amount of K23,785,056.23 as advised per our letter of 7 November 1997. The increase has come about as a result of another lot of transfers effected on 21/04/98 for a few employees of the above authorities whose balances were never transferred in the previous transfers. This is a matter, which the NPF management will deal directly with the National Government through your department.
Please refer enclosure.” (Exhibit T2)
Unions Heighten Demands For The State To Pay Its Share of Contributions
The PNGCWU wrongly believed that the execution of the deed would enable NPF to payout the State’s share of contributions to its members. When they realised that this was not to happen, they threatened industrial action in mid 1998.
113th Board Of Trustees Meeting
At the 113th board meeting held on July 22, 1998, Mr Leahy informed the board that NPF had paid out K3,279,952.20 to those Air Niugini employees wanting payouts of their own contributions.
At the same meeting, the minutes record that Noel Wright advised the board of a K4 million overdraft for the purpose of covering the payout of Telikom, Post PNG and Air Niugini employees. Mr Wright’s reason given as explanation for the overdraft facility of K4 million was misleading and incorrect.
Mr Fabila Seeks The Involvement Of DOF To Assist In Negotiations With PNGCWU
Because of the slow progress in the negotiations with the unions, Mr Fabila requested the DoF to assist with the negotiations.
Minster Briefed On The Deed
Ori Avea of DoF provided a brief to Minister Lasaro on July 17, 1998, on the status of the deed and the outstanding issues concerning the finalisation of the deed.
Mr Fabila’s Brief To The Minister
Mr Fabila wrote a brief to Minister Lasaro on August 3, 1998, setting out the background to the dispute and at the same time requesting the Minister to reject the unions claim for full payout of the States share of contributions.
114th Board Of Trustees Meeting
On August 18, 1998, NPF instructed Carter Newell Lawyers to write to the PNGCWU requesting them to clarify and justify their demands for the payout.
At the 114th board meeting on September 1, 1998, Mr Leahy advised the board that NPF had not received any advice about the deed.
Mr Fabila advised the board that there was no legal entitlement for NPF to payout the State’s share of its contributions. The board endorsed Mr Fabila’s stand.
Strike Action By Unions
The union went out on strike during September/ October 1998. Telikom instigated legal action against the union for loss of income associated with the strike.
The deed was finally signed on October 29, 1998.
The Negotiated Settlement Of Strike Action
The board resolved in their 115th board meeting on November 6, 1998 to continue to resist the union’s demand.
The legal action and strike were, however, amicably settled through the signing of two agreements involving the State, the various communications entities POSF, NPF and PNGCWU, which agreed that the State share would be paid to the communication employees in three tranches during December 1998 and 1999.
To enable this to happen, the State paid the required funds to NPF in November 1998, May 1999 and November 1999 and the funds were paid out to the former PTC employees by NPF soon after they were received. (See full details at paragraph 29 below).
At paragraph 4.22.1, the commission has found that:
(a) THE trustees failed in their fiduciary duties to the members by:
- ALLOWING payments to Air Niugini employees of the employee contributions in breach of the NPF Act. These payments were made preferentially and not equitably to other members; and
- ENTERING into a memorandum of agreement, which was contrary to the NPF Act;
(b) Despite the board resolution of December 11, 1997, which resolved to payout the State contributions to the transferred employees NPF management and board subsequently maintained a strong and legally correct resistance to PNGCWU’s claims for payout of the State share;
(c) After the Deed of Acknowledgement of Debt was executed, which (technically) meant that NPF began to receive the benefit of the transferred State share of contributions (the benefit being in the form of interest payments on the NPF loan to the Sate) the PNGCWU took strike action to obtain payout by NPF of the State share to former PTC employees who had continued in employment with the new corporate entities;
(d) Under the pressure of the strike action, (and pressure from the Government) NPF capitulated to union demands and agreed to pay out the State share in three tranches to all former PTC members who had transferred to NPF and continued in employment;
(e) The trustees would probably be liable in any future action brought by affected members regarding the preferential treatment accorded to transferred former NAC and PTC employees that effectively enabled them to avoid the write down (if they remained NPF members through to the end of 1998 and 1999); and
(f) Noel Wright provided misleading and false information to the board of trustees when he informed the board that K4 million overdraft was secured in June 1998 for the Post PNG, Telikom PNG and Poreporena Freeway loans.
Deed Of Acknowledgement Of Debt And MOA
The deed was drafted by DoF and reviewed by NPF. It was finally signed on October 29, 1998.
The summary of the deed is as follows:
- It recognised that on January 1, 1997, all assets, rights, liabilities and obligations of PTC and NAC were transferred to the corporatised entities Post PNG Limited and Telikom PNG Limited and Air Niugini Limited respectively;
- IT recognised that the superannuation of the corporatised entities came under the NPF Act and therefore these entities were required to register and contribute to NPF;
- THE State unconditionally acknowledged its liability to NPF effective from January 1, 1997 for its unpaid share of contributions for the employees of the corporatised PTC and NAC. The total debt acknowledged was K23,531,053;
- IT said that the State would repay the principal sum in full on December 31, 2006, but allowed for repayment prior to that date;
- THE State agreed to pay interest at a rate of 15.67 per cent. A discount of 1 per cent was allowed if it was paid within three business days of the interest payment falling due date. It stated that interest was payable at the end of each quarter and that the interest for 1997 was due on December 31, 1997;
- IT stated that interest on the unpaid interest was to be calculated daily and compounded monthly at the rate of 15.67 per cent; and
- THE State agreed that the security for the principal sum would be a charge over its interest in Post PNG Limited, Telikom PNG Limited and Air Niugini Limited.
It is noted that:
- POSF advised that the State’s final total unpaid share transferred to NPF on May 1, 1998 was K24,475,074.65 (commission document 1171), however, the deed only acknowledged a debt of K23,531,053 to NPF. This error was carried over by NPF when billing the Sate for interest payable under the loan, which resulted in significant shortfalls in interest being paid. (See paragraph 29 below).
The State’s unpaid share of contributions assumed by NPF was in effect a long-term commercial loan by NPF to the State. Long-term loans are a permitted type of investment for NPF.
There was a request dated October 24, 1997 for Ministerial approval of this loan.
The commission has been unable to ascertain whether Ministerial approval was granted.
In paragraph 5.1.2, the commission has found that:
(a) Management failed in their duties to the members because:
- THE deed understated the State’s liability to NPF by K944,022;
- NO attempt has been made to seek repayment of the K944,022 and no interest has been paid by the State on this amount;
- NO agreement or arrangement was in place for the State to repay the K944,022 and interest thereon; and
- NO attempt was made to enforce interest payable for 1997 as stipulated by the Deed
(b) MR Leahy failed his duty when he instructed the DoF to capitalise the 1997 interest on the POSF State share loan without board approval. He also failed to ensure that this amount was paid or that it was stipulated in the Deed of Acknowledgement of Debt;
(c) THE board of trustees failed in their fiduciary duties to the members because:
- THE State’s liability to NPF, as acknowledged in the deed, was understated by K944,022;
- NO attempt had been made to seek repayment from the State of the K944,022 and the interest payable on this amount;
- NO agreement or arrangement was in place in respect of the State repaying the K944,022 and interest thereon; and
- NO attempt was made to enforce payment interest payable for 1997 as stipulated by the deed.
Payout Of State Share To PTC Employees — 1999
Of the total K15,049,421 State’s share due to the employees of Telikom and Post PNG, K6 million was received on November 11, 1998 and was payed out to the former PTC employee members on December 4 and 7, 1998. The balance remaining to be paid by the State was K9,049,421.
The second payout of K6 million from the State was paid into the NPF bank account on May 18, 1999, and was paid out to Telikom and Post PNG employees in June and July 1999.
NPF received the final instalment of K3,049,412 on November 15, 1999.
Two payouts totalling K966,073.05 were made out of this final instalment.
This commission has not been able to determine when the remaining K2,083,338.95 was paid out to the employees.
In paragraph 6.1, the commission has found that:
(a) THE trustees failed in their fiduciary duties to the members because payments of the State share of contributions made to Post PNG and Telikom PNG employees were made in breach of the NPF Act.
(b) THE trustees are open to actions brought by affected members in respect of the preferential treatment accorded to Post PNG and Telikom PNG employees, which effectively enabled these employees to avoid the write-down suffered by other members.
In order to understand the make up of interest income due under the deed, it is important to note:
- Interest was payable effective from January 1, 1997;
- 1997 interest accrued was payable December 31, 1997;
- THE deed was signed on October 29, 1998, which set the interest at a rate of 14.67 per cent if it was paid within three business days of the due date, or 15.67 per cent as set out in Clause 3 of the deed.
- Between January 1, 1997 and October 29, 1998 (the date the deed was signed), it is apparent from correspondence that there was an expectation by both the NPF and the State that interest was to be charged at 12.67 per cent with a default rate of 14.67 per cent.
Interests Income Due To NPF — Error In Principal Sum
In 1997, the correct principal sum representing the true value of the State’s share of contributions was K24,475,075.
The correct interest rate chargeable was 12.67 per cent as this was the common understanding of both parties.
Instead, NPF calculated the 12.67 per cent on an incorrect principal sum of K23,785,056.
On this principal sum, which was short by K690,019, NPF then billed the State for interest of only K3,013,567.
When the State failed to pay this amount on the due date, Herman Leahy, without NPF board authority to do so, agreed that the interest be capitalised and that this fact be written into the deed.
In fact, the 1997 capitalisation of interest was not recorded in the deed.
This miscalculation of the principal sum in 1997 was carried over into 1998 and 1999 during which period’s interest was charged on a principal sum, which was considerably less than the actual amount of the loan outstanding from time to time.
Error In Interest Rate Charged
The deed signed on October 29, 1998, specified an interest rate of 15.67 per cent with a discounted rate of 14.67 per cent for prompt payment within three business days of the due date.
In fact, Mr Wright and his successors continued to bill the State at the former rate of 12.67 per cent even when payment was made outside the three-day period of grace.
This resulted in very substantial underpayment of interest by the State throughout the period under review.
TO BE CONTINUED