No. 32/1993:

SOCIAL WELFARE (NO. 2) ACT, 1993

ARRANGEMENT OF SECTIONS

PART I

PRELIMINARY

Section

1. Short title and construction.

2. Definition.

PART II

SOCIAL INSURANCE FOR PERSONS ENGAGED IN SHARE FISHING

3. Amendment of section 2 of Principal Act (definitions).

4. Optional contributors and optional contributions.

5. Social Insurance Fund.

6. Return of contributions paid in error.

7. Disability benefit (conditions for receipt and duration of payment).

8. Unemployment benefit (conditions for receipt and duration of payment).

9. Amendment of section 79 of Principal Act (pay-related benefit).

10. Commencement.

PART III

MISCELLANEOUS AMENDMENTS

11. Amendment of section 2 of Principal Act (definitions).

12. Qualifying conditions for disability benefit (volunteer development workers).

13. Qualifying conditions for unemployment benefit (volunteer development workers).

14. Records to be maintained.

PART IV

AMENDMENT OF PENSIONS ACT, 1990

15. Amendment of Pensions Act, 1990 .

ACTS REFERRED TO

Number 32 of 1993

SOCIAL WELFARE (NO. 2) ACT, 1993

AN ACT TO AMEND AND EXTEND THE SOCIAL WELFARE (CONSOLIDATION) ACT, 1993 , TO AMEND AND EXTEND THE PENSIONS ACT, 1990 AND TO PROVIDE FOR CONNECTED MATTERS.

[21st December, 1993]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART I PRELIMINARY

1.—(1) This Act may be cited as the Social Welfare (No. 2) Act, 1993 .

(2) The Social Welfare (Consolidation) Act, 1993 , and this Act (other than section 15) shall be construed together as one.

2.—In this Act "the Principal Act" means the Social Welfare (Consolidation) Act, 1993 .

PART II SOCIAL INSURANCE FOR PERSONS ENGAGED IN SHARE FISHING

3.—Section 2 (1) of the Principal Act is hereby amended by—

( a ) the insertion after the definition of "occupational injuries insurance" of the following definitions:

"optional contribution' means a contribution paid under Chapter 4A of Part II;

'optional contributor' means a person engaged in share fishing paying optional contributions;",

( b ) the insertion after the definition of "pensionable age" of the following definition:

"'person engaged in share fishing' means a self-employed contributor who is a member of the crew of a fishing vessel and whose principal means of livelihood is derived from a share in the profits or the gross earnings of the working of the vessel;",

( c ) the substitution for the definition of "qualifying contribution" of the following definition:

"'qualifying contribution' means the appropriate employment contribution or self-employment contribution which was paid or would have been paid but for section 10 (1) (c) or (d) or section 18 (1) (d) in respect of any insured person or the appropriate optional contribution which was paid or would have been paid but for section 24B (1) (b);",

and

( d ) the insertion in the definition of "reckonable income" after "self-employed contributor" of "or an optional contributor,".

4.—The Principal Act is hereby amended by the insertion after section 24 of the following Chapter:

"Chapter 4A

Optional Contributors and Optional Contributions

Optional contributors and contributions.

24A-(1) A person engaged in share fishing shall, subject to such conditions as may be prescribed, be entitled to opt to become an insured person ('optional contributor') paying contributions under this Chapter ('optional contributions') which shall be payable in each contribution year with effect from the contribution year ending on the 5th day of April, 1994 at such time and in such manner as may be prescribed.

(2) An optional contributor shall cease to be an optional contributor if he—

( a ) ceases to be a person engaged in share fishing,

( b ) ceases to be a self-employed contributor, or

( c ) fails, in any contribution year, to pay an optional contribution which by virtue of being an optional contributor, he is liable to pay.

Rates of optional contributions and related matters.

24B-(1) Optional contributions shall be payable by optional contributors in accordance with the following provisions—

( a ) Subject to paragraph (b), an optional contributor shall pay an optional contribution of an amount equal to 5 per cent. of his reckonable income in the preceding contribution year, or the sum specified in section 18 (1) (h), whichever is the greater.

( b ) An optional contribution shall not be payable in respect of so much (if any) of the reckonable income of an optional contributor in any contribution year which exceeds the sum specified in section 18 (1) (d).

(2) Subject to regulations under section 24C, where an optional contribution has been paid by an optional contributor of not less than the amount that he is liable to pay under subsection (1), he shall be regarded as having paid contributions for each contribution week in that contribution year and, where the contribution paid is less than the appropriate amount aforesaid, no contribution shall be regarded as having been paid by the optional contributor in respect of any week of that contribution year.

(3) Regulations may provide for adjustments in the calculation of amounts payable in respect of optional contributions to facilitate computation and for the elimination from optional contributions of amounts of not more than 5p and for the rounding up of amounts of more than 5p but less than 10p to 10p.

(4) Optional contributions shall be disregarded in determining whether the contribution conditions for any benefit other than disability benefit, unemployment benefit or treatment benefit are satisfied:

Provided that the contribution conditions for the said benefits shall not be regarded as being satisfied unless all optional contributions payable by an optional contributor in accordance with the provisions of this Chapter have been paid.

Regulations providing for determination of optional contributions payable and related matters.

24C.—Regulations may be provided for—

( a ) the determination of optional contributions payable, the amount or rates of such contributions, and the contribution weeks in respect of which such contributions shall be regarded as having been paid, in the case of a person who—

(i) becomes for the first time an optional contributor,

(ii) ceases to be an optional contributor, or

(iii) in any contribution year has reckonable earnings and reckonable income,

and

( b ) any matter ancillary or incidental to any of the matters referred to in the preceding paragraph of this section.".

5.—Section 6 of the Principal Act is hereby amended by—

( a ) the insertion after paragraph (b) of subsection (1) of the following paragraph:

"( bb ) contributions in respect of optional contributors,",

and

( b ) the insertion in subsection (2) after "self-employment contributions" of "optional contributions".

6.—The Principal Act is hereby amended by the substitution for section 28 of the following section:

"Return of contributions paid in error.

28. -Regulations may provide for the return, subject to any conditions, restrictions and deductions specified in the regulations, of any sums paid in error by way of employment, self-employment, voluntary or optional contributions.".

7.—The Principal Act is hereby amended by—

( a ) the substitution for paragraph (c) of section 32 (1) of the following paragraph:

"( c ) that the claimant has—

(i) prescribed reckonable weekly earnings, or

(ii) in the case of a person who qualifies for disability benefit by virtue of having paid optional contributions, prescribed reckonable weekly income,

in excess of a prescribed amount in the prescribed period.",

and

( b ) the insertion after section 35 of the following section:

"Duration of payment (optional contributors).

35A.—( a ) Notwithstanding section 35, where in any period of interruption of employment a person, having satisfied the contribution conditions contained in section 32 by virtue of having paid optional contributions, has been entitled to disability benefit for 312 days, he shall not be entitled to the said benefit for any subsequent day of incapacity for work unless before that day he has requalified for benefit in accordance with paragraph (b).

( b ) Where a person to whom paragraph (a) applies has paid optional contributions in the contribution year following the benefit year which includes the said 312th day, he shall requalify for disability benefit in the benefit year subsequent to the contribution year in respect of which the said optional contributions have been paid.".

8.—The Principal Act is hereby amended by—

( a ) the insertion after section 42 of the following section:

"Conditions for receipt (optional contributors).

42A-(1) It shall be a condition for the receipt of unemployment benefit in respect of any day by a person engaged in share fishing that—

( a ) it is not a day on which he is engaged in share fishing and it is a day in respect of which he makes reasonable efforts to obtain such work, and

( b ) there was no work on, or in connection with, the fishing vessel of which he is a member of the crew available for him on that day for the reason that—

(i) as a consequence of weather conditions, the fishing vessel could not reasonably have put to sea for the purposes of fishing, or

(ii) the fishing vessel was undergoing repairs or maintenance, not being repairs or maintenance constituting work within the meaning of subsection (2).

(2) For the purposes of subsection (1), work includes any work done to the fishing vessel or its nets or gear by way of repairs (including running repairs) or maintenance, or in connection with the laying up of nets and gear or their preparation for fishing which at the time of its performance is necessary for the safety or reasonable efficiency of the fishing vessel, or is likely to become so necessary in the near future, and which it is the duty of a person engaged in share fishing (whether by agreement, custom, practice or otherwise) to undertake without remuneration other than by way of a share in the profits or the gross earnings of the working of the fishing vessel, but any other work done to the fishing vessel or its nets or gear, shall be disregarded.",

( b ) the substitution for paragraph (c) of section 43 (1) of the following paragraph:

"( c ) that the claimant has—

(i) prescribed reckonable weekly earnings, or

(ii) in the case of a person who qualifies for unemployment benefit by virtue of having paid optional contributions, prescribed reckonable weekly income,

in excess of a prescribed amount in the prescribed period.",

and

( c ) the insertion after subsection (4) of section 46 of the following subsection:

"(4A) Notwithstanding the provisions of this Chapter, in the case of a person who satisfies the contribution conditions contained in section 43 by virtue of having paid optional contributions—

( a ) where he has been entitled to unemployment benefit for 78 days in any benefit year he shall not thereafter be entitled to the said benefit in respect of any day of unemployment in that benefit year, and

( b ) the first day of unemployment in any benefit year shall be treated as the commencement of a separate period of interruption of employment.".

9.—section 79 (2) of the Principal Act is hereby amended by the insertion after paragraph (a) of the following paragraph:

"(aa) share fishing, or".

10.—This Part shall come into operation on such day as the Minister may appoint by order.

PART III MISCELLANEOUS AMENDMENTS

11.—Section 2 (1) (as amended by section 3) of the Principal Act is hereby amended by—

( a ) the insertion after the definition of "deciding officer" of the following definition:

"developing country' means any country which the Minister, having regard to the countries so designated by the United Nations, the World Bank or the International Labour Organisation as developing countries and after consultation with the Minister for Foreign Affairs, may determine, for the purposes of this Act, to be a developing country;",

( b ) the insertion after the definition of "the Minister" of the following definition:

"'non-governmental agency' means any organisation which has as one of its functions the promotion of relief and development in developing countries through the sponsoring or aiding of projects involving the employment of volunteer development workers in those countries;",

and

( c ) the insertion after the definition of "voluntary contributor" of the following definition:

"'volunteer development worker' means a person who is employed temporarily outside the State in a developing country and has secured such employment either—

( a ) by or through the organisation known as the Agency for Personal Services Overseas or by or through a non-governmental agency in the State, or

( b ) by or through a governmental or non-governmental agency in any Member State other than the State, or

( c ) directly with the government of a developing country,

and who is employed by any of the aforesaid agencies or by the government of the developing country or by both under conditions of remuneration similar to local conditions applying in the said country and who was resident in the State immediately prior to taking up such employment;".

12.—Section 32 of the Principal Act is hereby amended by the insertion after subsection (8) of the following subsection:

"(9) The requirement contained in subsection (1) (c) that the claimant must have prescribed reckonable weekly earnings in excess of a prescribed amount in the prescribed period shall not apply in the case of a claim for disability benefit made by a person in the benefit year in which that person, having been a volunteer development worker, returns to the State from a developing country or in the next succeeding benefit year.".

13.—Section 43 of the Principal Act is hereby amended by the insertion after subsection (6) of the following subsection:

"(7) The requirement contained in subsection (1) (c) that the claimant must have prescribed reckonable weekly earnings in excess of a prescribed amount in the prescribed period shall not apply in the case of a claim for unemployment benefit made by a person in the benefit year in which that person, having been a volunteer development worker, returns to the State from a developing country or in the next succeeding benefit year.".

14.—The Principal Act is hereby amended by the insertion after section 215 of the following section:

"Records to be maintained.

215A. -(1) For the purposes of this Act, the Minister may by regulations require—

( a ) an employer or any other person to maintain such records as may be prescribed of any person in his employment and of any person engaged by him under a contract for service to perform a service, or

( b ) a person engaged under a contract for service to perform a service to maintain such records as may be prescribed of any person engaged to perform that service either with him or on his behalf whether under a contract for service or under any other arrangements made or to be made by him.

(2) Records required to be maintained under subsection (1) shall be held at such place and for such period as may be prescribed.

(3) A person who fails to comply with this section shall be guilty of an offence.".

PART IV AMENDMENT OF PENSIONS ACT, 1990

15.—The Pensions Act, 1990 , is hereby amended by the substitution for section 62 of the following section:

"Selection by members of funded schemes of persons for appointment as trustees.

62.—(1) The Minister shall provide by regulations, in respect of schemes having not less than a specified number of members, that the members of any such scheme may select, or approve of the selection by the employer concerned, of a person or a specified number of persons who shall be appointed to be a trustee or trustees of the scheme (or who shall be retained as such trustee or trustees, as the case may be).

(2) Regulations under this section—

( a ) shall determine the circumstances in which a person, or category of persons, who, having been admitted to membership of the scheme and remaining entitled to any benefit under the scheme, is or are to be regarded for the purpose of this section as being a member or members of the scheme,

( b ) may specify the manner in which the selection, or the approval of the selection by the employer concerned, of a person or persons for appointment or retention as a trustee or trustees by members of schemes, for the purpose of subsection (1), shall be made, and

( c ) may make such other provision as the Minister considers necessary or expedient for the purpose of this section and for enabling it to have full effect.".