Category: Private sector

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Employee or independent contractor

Introduction
The quotation taken from a judgment of US Supreme Court Judge Wiley Blount Rutledge is as true today as when it was handed down in a case nearly seventy years ago. But it is perhaps even more relevant today than it was then, its relevance best understood against some of the practices by employers − sometimes with the complicity of the employees, and sometimes not.

Let me give a few practical examples. Suppose entity A has a defined organisation structure with stipulated qualifications and fixed salaries. And suppose entity A wants to employ a relative of one of its top brass, for a) a position that is not on the establishment; or b) the relative does not possess the requisite qualification; or, c) the relative possesses the requisite qualification, but is to be paid remuneration higher than the one fixed on the establishment.

Another is a government on which the budget authority has imposed an employment and wage freeze. Yet another is one which wants to circumvent the law requiring the deduction of income tax and NIS from employees’ earnings.

Many entities faced with these situations choose the route of engaging the person not as an employee but as an independent contractor.

And as the examples indicate, this practice is undertaken by all employers, governments and the private sector alike. I am surprised how many employers – and employees – think that once a position is labelled independent contractor, many of the obligations to which an employer is otherwise subject, do not apply.

Employers 2, Employees 0
There is a further and equally important consideration. Coverage under employment laws boils down to whether or not the individuals in question are ‘employees’ and whether or not the entity in question is an ‘employer.’ So if you fall and break your leg, the law to be applied often hinges on whether you are an employee.

And from a financial perspective, it has been estimated that classifying individuals as independent contractors instead of as employees might result in a savings of twenty to forty per cent of labour costs. No pensions, no medical, no allowances, no overtime, no nothing − just salaries.

So employers have everything to gain, and little to lose by defining a person as an independent contractor rather than an employee.

But this has serious public policy implications by characterizing an individual as an employee, which include protection under various employment laws as well as a requirement that PAYE must be paid. It is surprising that we do not hear in Guyana of more cases reaching the courts because the problem is both widespread and acute.

Ram & McRae, the accounting firm is often called on to advise businesses on the distinction between employer and employee and this column draws on some of the research undertaken in consequence thereof.

A real case
Two years ago, an interesting case came before the UK Supreme Court. The facts as set out provided a useful framework to determine the employer/employee question. The company, Autoclenz Limited had a contract to valet cars. Twenty valeters signed contracts with Autoclenz to provide car cleaning services. The contracts contained the following clauses indicative of a contractor relationship:

• There was no duty to accept work

• There was a right of substitution (to send the work elsewhere)

• They expressly described themselves as self-employed

• They paid their own tax

• They purchased their own insurance, uniforms and some materials.

In reality, Autoclenz Limited provided all the cleaning products and equipment and arranged group insurance cover. The valeters submitted weekly invoices to Autoclenz Limited for their work. Autoclenz Limited deducted a fixed sum for the provision of cleaning materials and insurance from the payment due each week. The valeters were responsible for payment of their tax and NIC.

Subsequently, the valeters brought claims to a tribunal seeking a declaration that they were workers and an order for Autoclenz Limited to pay them the national minimum wages and unpaid holiday pay under the Working Time Regulations 1998. Autoclenz Limited argued that the statutory rights were not available to them as they were contractors.

The courts
The tribunal decided in favour of the valeters on the grounds that the degree of control exercised by Autoclenz Limited fully integrated the valeters into its business and that the contract terms permitting the valeters to provide substitutes and suggesting a lack of mutual obligations did not reflect the reality of the situation. In practice, the valeters were required to turn up for work every day and to notify Autoclenz Limited in advance if they were unable to work. In other words, several of the terms were shams.

Autoclenz Limited appealed to the Employment Appeal Tribunal (EAT) which allowed the appeal in part and held that the valeters were not employees but that they were workers. This displeased both sides and so Autoclenz Limited appealed against the decision that the valeters were workers while the valeters cross-appealed against the decision that they were not employees.

The Court of Appeal reinstated the tribunal’s decision, dismissing Autoclenz Limited’s appeal and allowing the valeters’ cross-appeal. The Court of Appeal held that, when determining an individual’s status, tribunals should look at the actual legal obligations of the parties. It was not necessary to show a common intention of the parties to mislead. Autoclenz Limited appealed to the Supreme Court.

And so the case went to the UK Supreme Court which unanimously dismissed Autoclenz Limited’s appeal and upheld the decision of the Court of the Appeal that the valeters were employed under contracts of employment and thus entitled to receive the national minimum wage and statutory paid annual leave.

The principle
In the process the Supreme Court ruled as too narrow a long-standing rule that as long as the written contract is not a ‘sham’, its terms would prevail. Because of the hierarchy of courts in the UK, tribunals and courts will be able to set aside express contractual terms which are inconsistent with the reality of the relationship of the parties, without having to establish a common intention of the parties to mislead.

Even as the case wound through the judicial system, the judgment of MacKenna J in the case Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance was cited with approval. He said: “A contract of service exists if these three conditions are fulfilled.

(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.

(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master.

(iii) The other provisions of the contract are consistent with its being a contract of service … Freedom to do a job either by one’s own hands or by another’s is inconsistent with a contract of service, though a limited or occasional power of delegation may not be.”

Conclusion
My view is that the practice by employers deprives workers of significant rights and exposes them to serious obligations. As noted earlier their rights to protection by employers for industrial injuries and death are restricted if not entirely eliminated. And on the other hand the employer shifts his responsibility to deduct and pay over taxes and NIS which now become the obligation of the employee.

I am not hopeful that the government is keen or mindful of cleaning up a situation in which it is itself involved. Here is how. It may receive funding from the British to pay the salaries for some climate change consultant. By law, that money should be paid into the Consolidated Fund as grant and then paid out as an expenditure by way of an appropriation. This government has no appetite for such accountability. It is simply paid to the consultant as an independent contractor without taxes etc, being deducted and paid over.

I would like to see the GRA directing some resources and attention to this issue. It will bring in lots more tax revenues. And I hope too that the Attorney General and the Minister of Labour would direct their attention to any omissions in the law. They will protect the workers.

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Twenty years later – part 3

Introduction
Today I return to and conclude the topic started on December 16, 2012 to mark the 20 year anniversary of Business Page. I chose the banking sector to mark the occasion because that sector was in the inaugural column, and I thought it would be useful to see how the sector had performed over the two decades. Twenty years ago the Government played a big role in the banking and financial sectors in Guyana. It owned and operated the Guyana National Co-operative Bank (GNCB) and also had major interests in the National Bank of Industry and Commerce (NBIC) and the Guyana Bank for Trade and Industry (GBTI). The only other commercial banks operating in Guyana twenty years ago were the Bank of Baroda Ltd, an Indian-owned multinational, and a branch of the Canadian-owned Bank of Nova Scotia. Other players in the financial sector were the Guyana Co-operative Agricultural Development Bank (GAIBANK) and the Guyana Co-operative Mortgage Finance Bank (GCFS), both wholly-owned Government entities, and the New Building Society Limited.

Twenty years later the government is completely out of commercial banking, GNCB and GAIBANK are no more in existence or operational while two new domestic banks are closing in on their own twenty years of operation. In other words, there is only one additional operator in the commercial banking sector and no new international bank in the twenty years since 1992. The ownership structure is one of concentration and control with one of the international banks (Scotiabank) still operating as a branch and the other (Baroda) a wholly owned subsidiary. RBL, GBTI and Citizens Bank are all subsidiaries with a majority shareholder, while DBL’s ownership structure is somewhat more complex, with its annual report disclosing that there is no shareholder whose interest exceeds 5% but whose annual general meeting, among the commercial banks, is probably attended by the least number of members.

In the tables in today’s column we see that those banks have all done extremely well, surpassing the growth in the economy many times over. Let us take profits before tax. From nothing the Demerara Bank Limited and Citizens Bank Inc. recorded pre-tax profits in 2011 of $1,279 million and $1,389 million respectively; the National Bank of Industry and Commerce which was renamed the Republic Bank (Guyana) Limited and acquired the operations, liabilities and certain assets of the GNCB has seen its pre-tax profits increase from $335 million in 1991 to $3,175 million in 2011, an increase of 847% while the GBTI which reported pre-tax profits of $571 million in 1991 saw those profits rising to $1,961 million in 2011, an increase of 243%. The performance of the Bank of Nova Scotia was no doubt equally impressive although under then prevailing laws that branch was not required to report on the performance of its domestic operations.

While the growth of the economy, inflation and the scale of their services would have contributed to the increased profitability of the banks, they would inevitably have benefited from the barriers to entry in the sector with the government very reluctant to grant further banking licences. There is no study of which I am aware into the operations of the sector to examine the effects on the economy, beyond some fierce competition for market share, which the concentration of ownership can facilitate.

This kind of research which goes well beyond a newspaper column, is what one should expect from the Bank of Guyana and the University of Guyana, and it would be helpful for a better understanding of the sector and the formulation of policy initiatives if such a study, or indeed studies were undertaken.

What is clear, however, is that while in the years immediately following 1992, it was almost obligatory for the Minister of Finance to comment critically on the high spread between the rates of interest charged on loans and advances and those paid on deposits, that no longer happens. Moreover with a number of the banks taking up membership of the Private Sector Commission the question of spreads seems completely off the table.

The following two tables show some indicators in the landscape in which the commercial banks have operated. Inflation has declined dramatically; the banks’ prime lending rate has been halved while the rate of interest paid on savings accounts has fallen much more steeply. Meanwhile and counter-intuitively the exchange rate of the Guyana dollar to the United States dollar has fallen from $122.75 to $203.75.

Table 1

2013.01.13_Table1

Source: Bank of Guyana publications

Some aggregate numbers
The banks have become bigger, much bigger. Measured in Guyana dollars, their assets have increased by 1,218%; deposits by an even larger 1,338%, loans and advances by 1,780%. The comparable US dollar percentages are 694%, 766% and 1,033%. As noted above and shown in Table 4, growth has translated to handsome profits.

Commercial Banks

Table 2

2013.01.13_Table2

Source: Bank of Guyana publications

Market share
While concerns may be expressed about the conduct of the commercial banks in a wider sense, there is no doubt in my mind that there is intense competition for loans and advances to customers.

There appears to be far too restrictive policy on making loans to non-resident companies which almost invariably have to bring money into the country on the mistaken ground of crowding out rather than borrowing from the local banking sector. At December 31, 2011 loans and advances by the commercial banks were less than 50% of their deposits which many consider are not growing as fast as they can because of interest rates that deter rather than encourage savings.

The banks however face some countervailing challenges when it comes to the economy. Some of the main players in some of the fastest growing sectors such as gold, construction, the narco-sector (which has earned special mention), the still huge underground economy and the Chinese and Brazilians, seem more interested in shipping money out of Guyana rather than borrowing from the commercial banks.

As a result of the restrictive lending rules and the nature of key sectors of the economy, market share in the banking sector, and more especially in their hugely profitable lending operations, is vital to profitability. This is how the banks stood in (2011), the last date at which figures are available. These numbers are more than just instructive.

Table 3

2013.01.13_Table3

Other Income & Salary Ratios

Table 4: 1991 and 2011 comparatives for NBIC/RBL & GBTI and 2011 for Citizens Bank (Guyana) Inc. (CBI), Demerara Bank Limited (DBL) & Bank of Baroda (BOB).

2013.01.13_Table4

One area of concern about the banks are the charges they impose on what might appear to be their miscellaneous services such as foreign exchange operations, letters of credit, returned cheques, copies of statements, etc. Interestingly, while in the case of NBIC/RBL, the percentage which such other income bears to its other income and net interest income has increased from 22% in 1991 to 27% in 2011, in the case of GBTI that percentage has fallen from 27% to 24%. Comparable percentages for the other banks are Citizens Bank 25%, Demerara Bank 28% and Bank of Baroda 33%.

Another interesting statistic is that in every bank, the salary and related costs are more than covered by other income alone, maybe strengthening the argument for more favourable interest rates, subject to the usual rules applying to risk levels.

The future
The picture for the banking sector looks rosy.

The sector will continue to be driven by technology and the banking licence – which has no carrying value on the balance sheet – will continue to be the most valuable asset, a licence to make money. While some entities will pursue the bricks and mortar strategy at least one other will see that as not the smartest approach to banking in an increasingly technologically driven environment.

Technology will play an even greater role in the sector as mobile money takes root and measures to strengthen controls and prevent increasingly clever and daring frauds continue.

But then the future is never certain. While money laundering will continue to play a significant role in the economy, with the non-bank cambios prominent, the commercial banks’ risk will not be helped by the tepid supervision of money laundering. This is likely to increase as the distributive trade continues its evolution.

There is no new legislation on the horizon and the principal regulator of the sector will continue to pursue conservative, non-interventionist policies.

Without some kind of revolutionary thinking and approaches neither the consumer nor the labour movement will exert any influence on the sector.

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Twenty years later – part 2

Correction, addition and appreciation
In last week’s column I stated as the year in which the Government of Guyana took over the assets, liabilities and operations of the Royal Bank of Canada as 1994. In fact the year was 1984. And I omitted to note that the percentage of the shares in the Guyana Bank for Trade and Industry Limited (GBTI) held and sold in 1994 by the Government of Guyana to the Beharry Group was 30% at a price of G$15 per share.

Finally I would like to express my appreciation to the Republic Bank (Guyana) Limited, GBTI, the Bank of Nova Scotia and Demerara Bank Limited which responded to my short survey for information for this column. I find it particularly disappointing that Citizens Bank Limited, the principal banker of Ram & McRae did not respond to the survey. I thank as well Mr Rajendra Rampersaud of the Bank of Guyana for making available information from the BoG’s library.

Finally, to the readers of this column warm wishes for a merry Christmas and 2013.

Introduction
Last week I noted how the regulatory and statutory landscape for banking has changed over the past twenty years. The changes have been more than evolutionary, affecting both the operations of the banks as well as the environment in which they operate. Shortly before 1992, the Hoyte administration had removed practically all exchange controls and had made trading on foreign currency with the introduction of the non-bank cambios with several paper controls but little meaningful supervision and enforcement, not unlike the money laundering that takes place openly in the country.

For more than a decade this column has drawn attention to the operations of these non-bank cambios arguing their usefulness and the objectives which they were expected to serve had ceased to exist. More than twenty years later, these non-bank cambios are seen as a fixture of the foreign currency landscape.

It was no surprise to me that Republic Bank noted as a concern of the earlier decades the question of security. In August 2006 the Rose Hall branches of RBL and Demerara Bank were victims of one of the most daring robberies in the history of banking in Guyana, traumatising the staff of the banks for a considerable time thereafter. I recall going up to Rose Hall immediately after the robbery to collect staff members of Ram & McRae who had to lock themselves in a washroom of RBL during the episode. They were still visibly shaken.

Wherever located, banks are now protected by armed guards and high quality electronic cameras monitoring all their perimeters and every movement by customers and staff. In fact so paranoid have the banks become that they no longer allow the use of mobile telephones in the banks, something that is still permitted in the USA.

Death of the consumer movement and advocacy
Part of the landscape then was a fairly active consumer movement and a willingness by the government to challenge the banks on what were considered exorbitant charges, unreasonable spreads between their buying and selling prices for foreign currencies, and the spread between their cost of funds and the rates of interest they charge on lending those funds. In those days, Ministers of Finance Asgar Ally and later Bharrat Jagdeo would rail about the interest spreads on funds. Now there is no consumer movement to challenge the plethora of charges imposed unilaterally by the banks while the government seems willing to extend every conceivable tax shelter to the commercial banks, even where they do not ask for such concessions.

In other words in respect of taxes the government has become the banks‘ major lobbyists and no longer analyses let alone questions the operations of the banks. In fact sometimes the relationship between the banks – or at least one of them – is so close as to allow what this column considered an improper foreign exchange transaction in a particular case.

I recall some years ago then President Jagdeo expressing surprise and alarm when I drew his attention to the effective rates of taxes paid by some of the banks. Yet, nothing has been done.

The banks’ best friends
Banking is indeed a regulated business but it is also a closed business with the government refusing to allow new entrants and allowing existing players to operate more like price-fixing cartels than genuine competitors. By the very regulations, the sector is largely protected from the vicissitudes and developments around the world, prompting Mr Jagdeo to refer, with some hyperbole, to a ring-fencing of the economy. Any detailed study of the history of the two entrants to the sector since 1992 will almost certainly show that the investors had recovered their capital within a few years, protected by a tax system that allows dividends to be paid tax-free and any capital gains arising from the disposal of shares in those companies to be exempt from taxes. On the other hand, the government sees no problem with charging at the rate of 20% the capital gains on the sale by a retired worker of her only house.

Bricks and mortar
Let us now compare the operations of the commercial banks twenty years ago and what now prevails. Rather than just accept, or rather than rely on, the words of the bank managers who provided some very useful insights into their operations in 1991 and 1992, I also went back to the financial statements and annual reports of two of our major players as well as of the Bank of Guyana for those years. In 1992 commercial banking was mainly about bricks and mortar – the customer wishing to transact any business would present herself to the bank, whether to make a deposit, withdraw money or negotiate for a loan. And more to the point, the banks had their branches mainly in the cities and towns and customers would have to travel some distance to do their business.

In fact the annual report of GBTI shows that it was not until 1992 that that Bank opened its Regent Street branch in the heart of the city. It seems fair to say that the bricks and mortar concept still largely drives commercial banking in Guyana both among the pre-1992 banks as well as those that came after. GBTI now has some nine branches and a new multi-billion head office adorning the Kingston skyline – almost all since 1992.

Republic Bank too has seen an explosion in the number of branches and the construction of a new head office since 1992. Like GBTI, Republic Bank also has nine branches. Demerara Bank has its head office and main branch in Camp Street Georgetown and five branches, including one in Essequibo and two in Berbice. Like Demerara Bank, Citizens Bank has its head office and main branch in Camp Street Georgetown and three branches.

Lethem in Region 9 is currently served only by GBTI but one should expect that others will follow to exploit the opportunities offered by the Brazil-Lethem trade link. Bartica, now more than just the gateway to the interior is served by both the Bank of Nova Scotia and Citizens Bank. Corriverton and Diamond on the Georgetown-Timehri corridor are both served by three of the commercial banks and by the New Building Society, the country’s only real building society. None of the banks disclose the profitability of their branches or have indicated the rate of return they expect in order to establish a branch, but the traffic flowing through many of these branches indicates that the driving factor might be less the volume of business than to keep up with the competition.

Changes, changes
If we were to form conclusions purely from the banks’ annual reports, we might think that the range of services has remained fairly unchanged since 1992. The balance sheets of the banks twenty years ago disclosed deposits in the form of savings, current and fixed deposits; lending in the form of loans and advances, mortgages and overdrafts; and investments mainly in government securities. The income statements reflected these items in the form of interest paid and received; investment income and other income mainly from foreign exchange transactions.

The survey and empirical evidence indicate however that the banks have moved away from a focus primarily on asset-based core lending and deposit products and now provide a suite of products and services designed to meet “specific market’s needs.” One bank indicated that its products and services have been enhanced to cater directly to segments such as commercial and small business versus retail.

The customer wanting to withdraw money does not have to rush to the bank before it closes, often before lunch, but now has a choice of Automatic Teller Machines available twenty-four hours per day seven days per week. Twenty years later it is normal for banks to offer internet banking, debit cards, local dollar credit cards and international credit cards. Customers of Scotiabank have seen their passbooks replaced by ABM cards and the PIN.

Technology and law
Many of the changes, while driven by customer expectations and a desire for instant everything, were made possible by changes in technology and telephony. Twenty years ago the Chairman of GBTI included as a highlight under the caption Computerisation “extensive research … towards upgrading our Management Information Systems” and the expectation that “the network to be fully operational by the end of 1993.” In 2012, technology rules.

Dramatic changes have also been witnessed in terms of statutory obligations in which even routine company functions like the paying of a dividend has to be sanctioned by the Bank of Guyana which also requires more and more frequent reports; new rules of accounting so that in 1991 notes to the financial statements of NBIC ran to a mere four pages compared with forty-four pages twenty years later. In fact even the auditor’s report has seen its own growth, increasing from five lines twenty years ago to twenty-one pages currently.

To be continued

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Twenty years later

Introduction
Twenty years and four days ago, Business Page became a feature of the Sunday Stabroek. The year 1992 is generally regarded as a breakthrough year for democracy and the return of free and fair elections in Guyana. But economically, former President Desmond Hoyte and his Finance Minister Carl Greenidge had already placed the economy on the path of market-based economic recovery within the framework of an Economic Recovery Programme (ERP) under the direction of and with the support of the International Monetary Fund and the international community.

Let us recall that in his presentation of the 1992 Budget on March 30, 1992, Mr Greenidge had reported growth of 6.1% in real GDP, “dramatically halting three years negative growth.” Indeed so optimistic was Mr Greenidge about the performance of the economy that he conveyed the famous message to those pundits and their parties who had made “tenebrous predictions” that the ERP would not work, with the admonition “the one who says it cannot be done should never interrupt the one who is doing it.”

ERP
Mr Greenidge was of course referring mainly to elements in the trade union movement, the WPA, the PPP/C and even some independent critics. The PPP/C had put its own spin on the ERP, describing it as Empty Rice Pot. So the loss by Hoyte of the October 1992 elections to the PPP/C under Cheddi Jagan brought with it uncertainty about the direction Dr Jagan would take the country and specifically whether he would re-introduce socialism.

After all, Marxism-Leninism had been the guiding philosophy of the Peoples’ Progressive Party which he formed and led until his death.

The ERP has had its serious consequences including a widening of the income gap of unprecedented proportions. But it also had its benefits, and while many would question key segments of the programme, it brought with it many improvements, including massive write-offs of a crippling debt burden which had developed for several years, and also only the second phase of significant tax reform since income tax was introduced in Guyana in 1929.

When Business Page first appeared in December 1992, the Guyana economy had continued the improvements witnessed in 1991.

In 1992 the economy grew by 7.7%, the fastest rate of growth ever recorded in Guyana; aggregate expenditure had moderated; inflation had declined from 75% to 15%; the overall deficit on the balance of payments fell from US$66 million in 1991 to US$41 million in 1992; the stock of public debt had already begun to fall; and the exchange rate had stabilized following the unification of the official and the market exchange rates.

Asgar Ally
Not that these developments impressed the first PPP/C Minister of Finance who in his 1993 Budget speech wrote, “the apparent economic recovery is fragile as major structural obstacles to sustained growth still persist.” Add to this Jagan’s mantra of lean and clean, weeding out corruption, expanding democracy and giving every Guyanese a fair chance to benefit from the country’s resources, and we see why there was some uncertainty among the banking community.

For better or worse, it will remain one of Guyana’s unanswerable questions why Dr Jagan allowed pragmatism to trump his ideology, but it was a major relief among the business and investing community that his government, first under his choice of Finance Minister Mr Asgar Ally, retained the ERP for several more years. That continuation was to result in one of the longest running IMF programmes anywhere in the world.

Banking in 1992
It was against that background that Business Page appeared with its first column captioned ‘Our banks must adopt a more positive role.’ That column made several comments and recommendations with regard to the commercial banking sector and I thought it useful to see how far and in what ways the banking sector in particular has changed in twenty years.

Of course at that time the government was the dominant player in the banking and financial sector. It controlled the National Bank of Industry and Commerce, the former Royal Bank of Canada whose assets, liabilities and operations were acquired by the Government of Guyana in 1994.

The government had also acquired the assets, liabilities and operations of Barclays Bank PLC and vested these into the Guyana Bank of Trade and Industry Limited. On January 1, 1990 the operations, assets and liabilities of Republic Bank (Guyana) Limited, which had arisen from the US Chase Manhattan Bank were merged with GBTI. Bank of Baroda had quietly been carrying on its own operations, as did the Bank of Nova Scotia.

Importantly the government also owned and operated the Guyana National Co-operative Bank (GNCB), the Guyana Co-operative Mortgage Finance Bank and the Guyana Co-operative Agricultural Development Bank.

In 1992 therefore the banking system was largely state-controlled. Indigenous banks had become the vogue and we recall that the GNCB, GAIBANK and the Mortgage Finance Bank had been established with the aim of fast-tracking economic development by making it easier for individuals and businesses to access capital for business and social purposes.

Such state control over such a key sector had problems beyond losses of staggering amounts, as politics became a major consideration in the operations of the institutions, although it was less so in the case of NBIC and GBTI.

Bank ownership
Since 1992, there have been substantial changes in the ownership and operations of commercial banks in Guyana. GNCB had acquired the portfolio of GAIBANK which was subsequently closed, but in 2003 certain assets and liabilities of GNCB were sold to what was by then Republic Bank (Guyana) Limited.

In October 1997, the government’s shareholding in NBIC – approximately 47% – was sold to Republic Bank of Trinidad and Tobago and the name NBIC was changed to Republic Bank (Guyana) Limited. The Republic Bank of Trinidad and Tobago now owns 51% of the local subsidiary while other substantial shareholders (defined as 5% shareholding) include Demerara Mutual Life Assurance Society Limited, GTM and Trust Company Guyana Limited.

GBTI was sold to the locally owned Beharry Group of Companies which now controls 61% of GBTI’s shares. The remaining shares appear to be spread among several non-substantial shareholders.

But there were new players as well. In January 1992 Demerara Bank Limited was incorporated as a private limited liability company and received its licence to carry on banking business in October 1994. It was subsequently registered as a reporting issuer under the Securities Industry Act in 2003. According to this Bank’s 2011 annual report, no shareholder owns more than 5% of its shares.

Another entrant to the market was the Citizens Bank which started out in November 1993 as a Jamaican initiative, but all its shares were subsequently acquired by Guyanese. It is now a subsidiary of Banks DIH Limited, a publicly traded company. Apart from Banks DIH, other substantial shareholders include Continental Agencies Limited (16.7%), the Hand-in-Hand Group (8.7%), and the Hand-in-Hand Pension Scheme (7.8%).

Regulatory changes
Another defining feature of then and now is the regulatory landscape. In 1992, banks were regulated under the Banking Act and, whether they were private or public companies, operated purely under the Companies Act, Cap 89:01 which had seen no amendment of substance since it appeared on the statute books in 1913. The Banking Act was repealed in 1995 with the passing of the Financial Institutions Act that brought about some sweeping changes to the industry.

For one, the capital stock of a company carrying on banking business has been increased substantially. The capital stock specified by the Banking Act for a Guyana company to be granted a licence was initially not less than G$500,000 unimpaired by losses. In 1986 this requirement was increased to the greater of 10% the demand and time liabilities or one million dollars.

At the 1965 exchange rate the requirement was equivalent to approximately US$200,000 compared with US$24,096 in 1986 and US$4000 in 1992! Under the Financial Institutions Act the minimum capital of a deposit-taking financial institution is $250 million. The FIA also has capital requirements for branches of international banks such as Scotiabank and provides for a build-up of a statutory reserve fund equivalent to its paid up capital.

The FIA is a modern piece of legislation that has been supervised by the Bank of Guyana, the FIA regulator, in a very professional and co-operative manner. While the reporting requirements are quite considerable the commercial banks have not complained and actually praise the BOG for its adoption of risk-based audits, a key requirement under the FIA.

By December 1992, the Companies Act 1991 had been passed in the National Assembly repealing the earlier Act, but it was several years after the call by the 1992 Business Page and others that the Act was finally brought into force. What was more significant however was the passing of the Securities Industry Act which regulates, among other things, public companies. That Act too has largely been well received by the two publicly traded commercial banks and its regulator, the Securities Council, has had far fewer issues with them than with some other public companies.

One of the other principal regulatory changes is the Anti-Money Laundering and Prevention of Terrorism Act. This Act sets up a Financial Intelligence Unit to pursue money laundering by requiring a range of bodies to report transactions. The operation of the Act has however proved quite onerous and there are complaints about the manner in which it is administered by an appointee of the Minister of Finance.

Next week: I have invited the commercial banks to provide me with some brief information on their own operations over the intervening twenty years. I will share the results with readers.

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Clico and immunity

Introduction
Perhaps it is the constant stream of news coming out of Trinidad about Commissions of Enquiry, referring files to the Director of Public Prosecution or about police investigations in that country. Or perhaps it is the knowledge that Clico Guyana is partly responsible for the sorry state in which the NIS finds itself, or that the individual who directly contributed to the loss to this country of close to seven billion Guyana dollars walks free, or the unsatisfactory conduct of the liquidation of the company, or the fact that so far my request to the courts for access to relevant files has come up with nought.

Then we have the rounds of telephone interviews being given by politicians to the newspapers and speeches made at hugely expensive dinners in which words like crisis at the NIS or the resolution of the Clico debacle are regarded as taboo. After all, the self-employed could not care two hoots about whether the NIS sinks or swims or whether anyone is held responsible for the failure in which so many authorities are in an incestuous game to protect each other.

To square the circle we have the political opposition which has spent inordinate energy on the “symbol” of Rohee. It is now close to four years since I wrote an open piece in which I said that the parliament must do something about Clico and suggested a number of measures they should consider.

In that call I noted that the National Insurance Scheme (NIS) alone is exposed to Clico for well in excess of six billion dollars or more than 20% of the funds accumulated by the NIS over its forty years of existence. I pointed out that members of Parliament ought to be aware that under the National Insurance Scheme Act any temporary insufficiency in the assets of the (NIS) Fund to meet its liabilities has to be met from appropriations by Parliament. In other words, they would have to approve the money to be funded by taxpayers. The politicians’ response has been less than adequate.

Red ink
Shortly before the call on the National Assembly, I had written about the widening financial instability enveloping Guyana as a result of Clico and Stanford and wrote that when the dust settles, the taxpayers, NIS contributors and beneficiaries, members of pension and medical schemes and depositors in Clico and potentially in Hand-in-Hand Trust (HIHT) and the New Building Society could lose collectively several billions from the fall-out in the financial sector. Of these only the NBS came out largely unscathed since its own $70 million loss had nothing to do with the Clico or Stanford.

Let me briefly fast-forward to today. As of now, while several pension funds and the NIS are still holding anywhere between six and seven billion dollars of worthless paper, the majority of Guyanese including the several politicians have quietly recovered most of their money and some of them began counting their blessings around this time last year. They are not going to open their mouths, while when they do it amounts to nothing, and the private sector is only willing to repeat all kinds of platitudes or safe criticisms sent with signals to the government that this is for show only.

Part of the problem with Clico is that the approach to Clico from the very beginning has been without resort to facts, a point made ad nauseam over the years. Some of it was clearly carelessness or laziness. For example, when the President assured the nation on February 5, 2009 shortly after the collapse began that Clico’s assets were sufficient to meet its liabilities he was repeating a company line without having read the December 31, 2007 analysis showing that 81% of the company’s assets was invested in related parties, all of which were under various degrees of threat (SN February 7; Business Page Feb 8 2009).

Collective failure
But it was partly skin-saving as well since Clico was a collective failure of a number of institutions and individuals. In transactions that came under the supervisory lens of both the Commissioner of Insurance and the Bank of Guyana, no one it appeared noticed or felt competent to deal with a company that issued “insurance policies” with premiums running into billions of dollars having a statutory fund of less than fifty million dollars. As pressure mounted on the President and on those with direct responsibility for the sector, the President in his typical style threatened prosecution against the directors and management of Clico if fraud were found. That threat could not be serious for the simple reason that the President knew that the sole Guyanese director and officer was the company’s CEO who would have been the decider over who should be favoured in getting their money back from the fast sinking ship. That is one secret that never saw daylight.

We knew from the newspapers here that the government of Trinidad and Tobago had moved against CEO Lawrence Duprey and finance specialist Andre Monteil for civil and/or criminal conduct in the collapse of the insurance giant Clico and its parent CL Financial. I reported that a civil lawsuit was brought by Trinidad’s Central Bank and Clico against Duprey and Monteil for alleged mismanagement and misappropriation of Clico assets and that Attorney General Anand Ramlogan had directed that all files coming out of the probe into the collapse of insurance giant Clico should be forwarded to Director of Public Prosecutions (DPP) Roger Gaspard to determine if criminal charges should be laid against Duprey and Monteil.

The story is different in Guyana because of the political and personal relationships that control Guyana. The key players in the Clico saga three years ago were President Jagdeo, Finance Minister Dr Ashni Singh, Clico’s CEO Ms Geeta Singh-Knight all of whom currently hold and enjoy various forms of public office, and Ms Maria Van Beek, former Commissioner of Insurance who left the country following an attempt on her life.

Complicity
They all knew but did nothing about the company breaching the provisions of the Insurance Act and compounded its unlawful conduct by failure to comply with a demand/request by the regulator to repatriate the Statutory Fund. They did nothing of consequence.

It is not as if there are no penalties. Section 19 of the Insurance Act provides that any person who contravenes any provision of the Act, or any of its regulations or any direction or requirement made by the Commissioner of Insurance, is guilty of an offence. Unlike the normal presumption in law where the prosecution has the burden of proving beyond reasonable doubt the guilt of the accused, the Insurance Act shifts the burden to the “person” to prove that s/he did not knowingly commit the offence of omission or commission.

In what in normal circumstances would be real noose-tightening, the law goes on to provide that where an offence is committed by a company – in this case Clico – and the offence is proved to have been committed with the consent or connivance of, or to have been facilitated by any neglect on the part of, any director, principal officer, or other officer or an actuary or auditor of the company, he, as well as the company, shall be deemed to be guilty of the offence. Ms Singh-Knight was both a director and principal officer of the local company and most certainly it would have been to Ms Singh-Knight that the Commissioner of Insurance would have been addressing correspondence and directions.

Playing a supporting role then was the Central Bank Governor who failed to appreciate the nature of the product that Clico was offering and the Bank’s responsibility to regulate it.

One big happy family
Now we have moved on to phase 2 in a liquidation that breaks many of the rules, some players have changed. Ms Van Beek has gone and her place has been taken by a lawyer Ms Tracy Gibson whose supervisory responsibility of the insurance sector is conflicting with her unlawful role as an assistant to the liquidator. Mr Jagdeo is busy with his accolades and ventures while Dr Singh remains as Minister. The Bank of Guyana has seen its Governor appointed liquidator over a company to the demise of which his Bank contributed in no small measure. Ms Singh-Knight has been promoted and for all practical purposes granted a pardon, Chartered Accountant Mr Maurice Solomon is another unlawful assistant liquidator to Mr Williams while Senior Counsel Ashton Chase is the attorney. Mr Solomon in turn has been appointed a liquidator of Caribbean Resources Limited, one of Clico’s big debtors. Given that tens of millions of dollars of fees are being paid out by cheques signed by Mr Solomon and Ms Gibson one might have expected some better accounting with the reporting of the transactions under the liquidation and compliance with the Companies Act.

Conclusion
It is not that some people are receiving moneys outside of the law that bothers me. It is that a responsible and competent liquidator has a duty to look for wrongdoings by the company prior to the order for liquidation. Mr Williams is an extremely decent man in the best tradition of that word. But inexperience alone does not explain his unwillingness to date to have pre-liquidation transactions and conduct reopened for examination.

I am sure our private sector leaders read the regional pages of the Stabroek News. The news coming out of Trinidad and Tobago must surely suggest to them that an enquiry into Clico for possible criminal conduct is long overdue. We have been duped before by President Jagdeo who responded to calls for action on Clico by insisting on a similar investigation into Globe Trust. When his bluff was called he changed tack – no investigation into Clico in consideration for no investigation into Globe Trust. What a clever deed!

Let us hope that the next leader of the private sector to speak at a function will at least recognise the twin issues of Clico and the NIS.