ARTICLE 43 – RAISING THE RETIREMENT AGE TO SIXTY-FIVE – LEGAL ISSUES, PROS AND CONS

By:      Darrell Bartholomew

            Attorney-at-Law

            Martin Anthony George & Co.

            Attorneys-at-Law

Retirement age is the age at which a person normally stops working, and is typically tied to the age at which they become eligible to receive a pension and/or retirement benefits. Where a mandatory retirement age is set, such as in Trinidad and Tobago, it is usually seen as an accomplishment to be celebrated when an employee reaches such an age.    

CURRENT LAW

The Pensions Act Chapter 23:52 sets out the mandatory retirement age for public officers appointed by the Service Commission. Section 14 of the Act states:

“14. The Service Commission may require an officer to retire from the service of Trinidad and Tobago at any time after he attains the age of sixty years or, in special cases, at any time after he attains the age of fifty years.”  

This statutory provision applies to public officers who have been appointed to a substantive position in the public service. It simply means that the Service Commission may require an officer at the age of sixty (60) years, to retire, and put into practice, this effectively translates to an employee retiring upon attaining the age of sixty (60) years. Alternatively, in special cases, an officer may retire at fifty (50) years old, but that officer must provide cogent medical evidence that they are not able to perform the duties assigned to them in their substantive position. Under this Act, officers who were appointed to what the Act refers to as a “pensionable office”, may receive a pension and gratuity, dependent on their length of service. 

Senior citizens’ pension, commonly known in the local parlance as “old aged pension”, is another type of pension in Trinidad and Tobago, and is not to be confused with the pension one receives upon retirement from the Government Service as detailed above. Eligibility in relation to senior citizens’ pension is irrespective of whether one worked in the Government Service or not, and is provided for in the Senior Citizens’ Pension Act Chapter 32:02. Section 4 (1) of the Act is as follows:

“4. (1) The conditions for the receipt of a pension by any person are –

• the person must have attained the age of sixty-five years;
• the person must have been ordinarily resident in Trinidad and Tobago-

(i) for a period of twenty years immediately preceding the claim for a pension; or

(ii) for a period of fifty years in the aggregate.”

As such, for an individual to be able to receive senior citizens’ pension, they must be at least sixty-five (65) years old, and they must either have been living in Trinidad and Tobago for the past twenty (20) years before claiming for this pension, or for a total of fifty (50) years cumulatively.   

LEGAL ISSUES

By virtue of Section 53 of the Constitution of the Republic of Trinidad and Tobago, Parliament is empowered to make laws, subject to certain restrictions outlined in Section 54 of the Constitution. When one speaks of Parliament in terms of making laws, Section 29 of the Constitution teaches us that Parliament consists of the President of the Republic of Trinidad and Tobago, as well as the House of Representatives and the Senate.

Acts of Parliament are normally passed by a majority (more than half) of the members of each of the houses of Parliament. However, an Act may contain certain restrictions on how any proposed amendments thereof are to take place, such as Section 54 of the Constitution, which specifies certain special majorities, such as two thirds or three fourths, which are needed to amend certain parts of the Constitution. Given that none of the statutory provisions concerning retirement age are contained in the Constitution, no amendment thereof is required, and so no issue of a special majority of Parliament would appear respectfully, to arise.

This trend towards increasing the retirement age is prevalent in many countries, with several of them already taking legislative steps to implement same. There are also practical considerations where, as in Trinidad & Tobago, the State may be unable to properly fund the upcoming wave of retirements with a mass of people due to reach the age of sixty (60) years in short order. Thus, a financial face-saving measure has been this shifting of the goal post by the Government seeking to raise the retirement age to sixty-five (65) years, thus allowing persons to continue working and earning a salary before retiring and having to rely upon a pension.

There are those who have posited that raising the retirement age to sixty-five (65) years is a deprivation of your constitutional right to enjoyment of “property” in the form of your pension at the age of sixty (60) years. This however appears, respectfully, to be a spurious, specious and speculative argument, as there is the option of applying for early retirement once one has satisfied the basic number of working years, usually thirty-three and a third (33 ¹/₃) years. Additionally, can it really be a deprivation of your enjoyment of “property” in the form of your pension benefits, when in fact you are being given the option to not just get a pension, but to actually keep working and get your full salary for five more years, while still being entitled to receive your retirement benefits at sixty-five (65) years.

Of course, the law is never always as clear-cut as this and there may yet be some creative and ingenuous litigation on this issue and the courts may ultimately have to decide; but from an individual perspective, it really comes down to a person’s choice as to whether they wish to apply for early retirement at sixty (60) years or to keep working till the age of sixty-five (65) years. So, the raising of the retirement age to sixty-five (65) years, does not force you to keep working till the age of sixty-five (65) years, it merely gives you the option of so doing – if you choose.

© 2020 MARTIN ANTHONY GEORGE & CO