The question of which of the above three approaches would apply in a particular litigation is, to a large extent, a factual question. Much will depend on the text of the employment contract, the rules of the Fund, all oral obligations between the parties, the worker`s access to rules and knowledge, etc. These and several other factors determine, if any, the exact content of the employer`s pension promise to the worker. „The Fund`s rules do not mention the employer`s general obligation to advise a member of a quota right that he or she may not be aware of. However, it is customary for membership in the Fund and entitlement to benefits within the meaning of the Fund`s rules to be included in the employment contract. It is then possible to ascertain whether this is a tacit clause in the employment contract that would draw the employer`s attention to the terms of the contract that bound them, including the conditions contained in the pension fund rules, which could be beneficial to the worker. 7. If the employer violates a contractual pension clause, the worker may apply for an infringement by the labour tribunal or the courts. No initiation The first possibility is that pension benefits are not included in the employment contract at all.
According to this theory, benefits, although they are the result of the employment relationship, once they come into force and the worker joins the Fund, are governed independently of the employment contract. One of the difficulties of this approach is that it seems that pension benefits can be left to discretion and changed by a simple change in the rules. In addition, the employer`s exercise of the withdrawal rule could require a worker to join another fund with significantly lower benefits. In this approach, the worker`s recourse would be to challenge the exercise of discretion rather than impose a contractual right to such benefits. The Warrant Officer then clarified that „the contractual terms (the rules of the fund) relating to pension benefits will be included in the employment contract.“ (9) English law seems to have addressed the issue of partial integration within collective agreements and stresses that it is appropriate to include a specific clause or rule in the employment contract and to question the purpose of that integration. (10) While South African commentators (11) have supported this approach, the issue has not yet been resolved in our courts. In the event of a pension plan change, it is imperative that the employer consult with active and future pension plan members with active and future pension plan members for a period of at least 60 days. This is a requirement for pension consultation. This requirement differs from any consultation on labour law (for example. B consultation on changing the terms of sale). This may change depending on the type of automatic registration system in place and the impact on existing pension plans.
An employer may not be required to participate in the automatic registration system if it has an existing pension plan. We will know more as we get closer to the 2021 launch date and publish bills. One of the difficulties, arguing that all the rules are included in the employment contract, is that some rules are simply not suitable for reception. For example, in the context of an employment contract between the employer and the worker, the rules of procedure that deal with the choice of directors or their skills and obligations are not in their place. Another feature of the comprehensive integration approach is that the employer`s powers to modify, withdraw and liquidate are also included in the employment contract.