S.I. No. 445/1992:

OCCUPATIONAL PENSION SCHEMES (PRESERVATION OF BENEFITS) REGULATIONS 1992.

OCCUPATIONAL PENSION SCHEMES (PRESERVATION OF BENEFITS) REGULATIONS 1992.

The Minister for Social Welfare, in exercise of the powers conferred on him by sections 5 , 35 , 37 and 38 of the Pensions Act, 1990 , (No. 25 of 1990), hereby makes the following Regulations:--

1. (1) These Regulations may be cited as the Occupational Pension Schemes (Preservation of Benefits) Regulations, 1992.

(2) These Regulations shall come into operation on the 1st day of January, 1993.

2. In these Regulations--

"The Act" means the Pensions Act, 1990 ;

"affiliated employer" means another employer where one of the employers is a subsidiary (within the meaning of Section 155 of the Companies Act, 1963 , (No. 33 of 1963)) of the other, or where both employers are subsidiaries of a third employer;

"agent" in relation to a scheme includes the actuaries, auditors and other accountants and the financial and other advisors to the scheme;

"authorised trade union" has the meaning assigned to it by section 54 (6) of the Act;

"the Board" has the meaning assigned to it by section 2 (1) of the Act;

"centralised scheme" means a scheme with more than one participating employer, whether or not such an employer is an affiliated employer;

"confinement" has the meaning assigned to it by Section 28 of the Social Welfare (Consolidation) Act, 1981 ;

"notify the member" means delivering a notice to the person to whom it relates, or sending it by post in a prepaid registered letter addressed to such person at the address at which he ordinarily resides;

"temporary absence" means a period of absence by a member from relevant employment

(i) on account of the pregnancy or confinement of the

member, or

(ii) in furtherance of a trade dispute as defined in Section 8 of the Industrial Relations Act, 1990 (No. 19 of 1990), or

(iii) where under the rules of the scheme a member is treated as not having ceased employment for the purposes of the scheme, or

(iv) where the period of absence is less than one month,

and

where following such absence the member resumes service in the relevant employment of the same employer;

"the nominated figure" means the figure of £3,000, or such other figure as may from time to time stand prescribed by the Minister.

3. (1) Subject to subarticle (4) of this article, for the purposes of section 35 (1) of the Act the trustees of a scheme, may effect, without the consent of the member concerned, a transfer payment from the scheme where:--

( a ) the total figure of the transfer payment from the scheme in respect of that member on the date on which the transfer is affected is less than the nominated figure, or

( b ) the Board determines that such transfer should be affected on foot of an application to it in writing by the trustees of the scheme.

(2) Where the trustees propose to effect a transfer payment in accordance with section 35 of the Act, such transfer shall not be effected unless they have notified the member concerned at least 30 days before the proposed transfer.

(3) A transfer payment in accordance with section 35 of the Act shall not be effective until the trustees have notified the member concerned of the undertaking or undertakings with whom the policies or contracts of assurance have been effected.

(4) The trustees shall not effect a transfer under subarticle (1) of this article

( a ) within a period of 2 years after the date of termination of the member's relevant employment, or

( b ) if, at the date of the proposed transfer the member concerned had made an application under section 34 (3) of the Act.

4. For the purposes of section 37 (3) of the Act:--

( a ) A member's service in relevant employment shall be treated as not terminated where:--

(i) in the case of a centralised scheme a member's employment ceases and after a period of less than one month following such cessation (or such longer period as the trustees of the scheme so decide in accordance with the rules of the scheme) he commences in the relevant employment of a different employer participating in the same scheme, or

(ii) in the case of a change in ownership of the employer or of the business of the employer a member's employment ceases and after a period of less than one month following such cessation (or such longer period as the trustees of the scheme so decide in accordance with the rules of the scheme) he commences in the relevant employment of the new employer and resumes membership of the same scheme.

( b ) A member's service in relevant employment shall be treated as terminated where:--

(i) in the case of a centralised scheme a member's employment ceases and after a period of one month or more following such cessation (or such longer period as the trustees of the scheme so decide in accordance with the rules of the scheme) he commences in the relevant employment of a different employer participating in the same scheme, or

(ii) in the case of a change in ownership of the employer or of the business of the employer a member's employment ceases and after a period of one month or more following such cessation (or such longer period as the trustees of the scheme so decide in accordance with the rules of the scheme) he commences in the relevant employment of the new employer and resumes membership of the same scheme.

5. (1) Where a member's employment is treated as not terminated under article 4 (a) the period of the member's reckonable service prior to the cessation of employment shall be treated as a period of reckonable service in the relevant employment of the new employer.

(2) Where a member's employment is treated as terminated under article 4 (b) the period of the member's reckonable service prior to the cessation of employment shall not be treated as a period of reckonable service in the relevant employment of the new employer.

6. For the purposes of section 37 (3) of the Act where a member's employment is interrupted due to temporary absence

( a ) such member's service in relevant employment shall be treated as not being terminated, and

( b ) the period of the temporary absence shall not be treated as a period of reckonable service, unless

(i) the rules of the scheme provide that such period is a period of membership of the scheme, or,

(ii) the trustees of the scheme so decide in accordance with the rules of the scheme, or

(iii) the Maternity (Protection of Employees) Act, 1981 (No. 2 of 1981) or section 72 of the Act requires that such period is a period of membership of the scheme.

7. For the purposes of section 37 (3) of the Act where a member's employment is interrupted for reasons other than temporary absence

( a ) such member's service in relevant employment shall be treated as terminated, and

( b ) the period of a member's reckonable service prior to the interruption of employment shall not be treated as a period of membership of the scheme for the purposes of determining a member's reckonable service following the resumption of service in the relevant employment.

8. (1) Where the basis of calculating long service benefit under a defined benefit scheme is altered between the commencement of Part 111 or, if later, the date of commencement of the member's relevant employment and the date of termination of the member's relevant employment and where such alteration includes a change in the member's normal pensionable age the amount of preserved benefit shall be calculated in accordance with this article instead of in accordance with Part A of the Second Schedule of the Act.

(2) In this article

"old normal pensionable age" means based on the Rules of the scheme in force immediately prior to the alteration in the basis of calculating long service benefit, the earliest age at which a member of a scheme to which this article applies was entitled to receive benefits on retirement from relevant employment disregarding any provisions under such Rules for early retirement on grounds of ill-health or otherwise;

"new normal pensionable age" means based on the Rules of the scheme in force immediately following the alteration in the basis of calculating long service benefit, the earliest age at which a member of a scheme to which this Article applies was entitled to receive benefits on retirement from relevant employment disregarding any provisions under such Rules for early retirement on grounds of ill-health or otherwise;

(3) In the case of a scheme to which this article applies the amount of preserved benefit shall be the sum of

( a ) an amount calculated in accordance with the formula

where

A is the amount of long service benefit (excluding any such benefit which is being secured by way of additional voluntary contributions or which represents a transfer of accrued rights from another scheme) calculated at the date of termination of the member's relevant employment by reference to his new normal pensionable age.

E is the period of reckonable service completed after the date on which the basis of calculation was altered.

C is the period of reckonable service that would have been completed if the member had remained in relevant employment until the new normal pensionable age and such service had continued to qualify for long service benefit,

and

( b ) an amount calculated in accordance with the formula

Where

A and C are as defined in such sub article 3 (a).

S is the period of reckonable service completed after the commencement of Part III but prior to the date on which the basis of calculation was altered.

T is a percentage calculated as follows

(i) where relevant employment is terminated within ten years after the date on which the basis of calculation was altered it shall be not less than

Where

U is the percentage certificate by the actuary at the date on which the basis of calculation was altered such that had the member's relevant employment terminated on that date the actuarial value of a preserved benefit calculated in accordance with the formula (with A, S and C calculated as defined herein)

would have equalled the actuarial value of a preserved benefit calculated on the basis of the Rules of the scheme in force immediately prior to the date on which the basis of calculation was altered and determined in accordance with Part A of the Second Schedule of the Act

V is the number of complete years of reckonable service completed after the date on which the basis of calculation was altered.

W is the number of complete years of reckonable service (subject to a maximum of 10 such years) that would have been completed from the date of such alteration if the member had remained in relevant employment until the new normal pensionable age and such service had continued to qualify for long service benefit.

(ii) where relevant employment is terminated more than ten years after the date on which the basis of calculation was altered it shall be 100 per cent.

9. For the purposes of section 37 (4) of the Act in the calculation of preserved benefit

( a ) reckonable service shall be computed to the next highest or next lowest whole month or any period within that range, provided that the same basis is used in the computation of all periods of a member's reckonable service, and,

( b ) the amount of the preserved benefit shall be computed to the next highest or next lowest whole pound or such other amount within that range.

10. For the purposes of section 38 (3) (d) of the Act the following persons shall be entitled to make an application under section 38 (2) of the Act in respect of a scheme:--

( a ) the agent to the scheme and

( b ) an authorised trade union representing a member or members of the scheme.

11. (1) The provisions of Part III of the Act shall not apply in the case of any of the schemes specified in the Schedule to these Regulations.

(2) A reference to a scheme in the Schedule to these Regulations shall be construed as a reference to that scheme as modified, amended or extended.

Article 11

SCHEDULE

Schemes Excluded from the Provisions of Part III of the Act

PART I

Agricultural Colleges Staff Superannuation Scheme, 1985.

An Bord Pleanala (Chairman and Members) Superannuation Scheme, 1986.

An Bord Pleanala Staff Superannuation Scheme, 1986.

An Bord Tráchtála Staff Superannuation Scheme, 1976.

An Chomhairle Ealaíon Staff Superannuation Scheme, 1976.

An Post Main Superannuation Scheme, 1990.

An tUdarás um Ard-Oideachas Staff Superannuation Scheme, 1980.

Bord Bainne Cheantar Bhaile Átha Cliath Superannuation Scheme.

Bord Bainne Cheanntar Chorcaighe Superannuation Scheme.

Bord na gCon Superannuation Scheme.

Bord Iascaigh Mhara Craft and Manual Employees Superannuation Scheme.

Bord lascaigh Mhara Staff Superannuation Scheme.

Central Bank of Ireland Superannuation Scheme.

Central and Regional Fisheries Boards' Staff Superannuation Scheme 1983.

Civil Service (Established) -- Superannuation Acts 1834 to 1963 and Superannuation and Pensions Act 1976.

Civil Service (Unestablished)--Non-Contributory Pension Scheme for Non-Established State

Employees.

Coillte Teoranta Main Superannuation Scheme, 1992.

Colleges of Education Pension Scheme, 1954.

Contributory Pension Scheme for Clerical Staff serving in National and Second Schools.

Contributory Pension Scheme for Non-Teaching Staff of Comprehensive and Community Schools.

Córas Iompair Éireann (Members) Superannuation Scheme, 1960.

Cork Harbour Commissioners Officers Superannuation Scheme, 1983.

Cork Harbour Commissioners Employees Superannuation Scheme, 1991.

Cork Pilotage Authority Pilot Boatmen Superannuation Scheme B.

Dublin City University Superannuation Scheme.

Dublin Institute for Advanced Studies (Superannuation) Scheme, 1947.

Dublin Institute for Advanced Studies Non-established Employees (Superannuation) Scheme, 1983.

Dublin Port and Docks Board Officers Superannuation Scheme, 1961.

Dublin Port and Docks Board Established Employees Superannuation Scheme, 1960.

Dublin Port and Docks Board Unestablished Employees Scheme, 1991.

Dublin Transport Authority Staff Superannuation Scheme, 1987.

Electricity Supply Board General Employees Superannuation Scheme.

Electricity Supply Board (Members) Superannuation Scheme, 1961.

Environmental Research Unit Staff Superannuation Scheme.

EOLAS Staff Superannuation Scheme.

FÁS Staff Superannuation Scheme, 1993.

FÁS (Closed) Superannuation Scheme, 1993.

Garda Síochána-The Garda Síochána Pensions Orders, 1925 to 1981.

Industrial Development Authority Staff Superannuation Scheme, 1970.

Institute of Public Administration Staff Superannuation Scheme, 1983.

Institiúid Teangeolaíochta Éireann Staff Superannuation Scheme, 1986.

Irish Gas Board Staff Superannuation Scheme, 1980.

Irish National Petroleum Corporation Superannuation Scheme, 1983.

The Labour Court (members) Superannuation Scheme, 1971.

Law Reform Commission Superannuation Scheme, 1982.

Legal Aid Board Staff Superannuation Scheme, 1981.

Limerick Harbour Commissioners Employees' Superannuation Scheme, 1982.

Limerick Harbour Commissioners Officers Superannuation Scheme, 1962.

Local Government (Superannuation Revision) (Consolidation) Scheme, 1986.

Local Government (Superannuation) Act, 1956 (Consolidation) Scheme, 1987.

National Building Agency Limited (Superannuation Revision) (Consolidation) Scheme, 1991.

National College of Art and Design Staff Superannuation Scheme, 1984.

National Council for Educational Awards Staff Superannuation Scheme, 1987.

National Institute for Physical Planning and Construction Research Limited (An Foras Forbartha Teoranta) Superannuation Scheme, 1975.

National Safety Council Staff Superannuation Scheme, 1991.

National School Teachers' Superannuation Scheme, 1934.

National University of Ireland General Pension Scheme.

Nominated Health Agencies Superannuation Scheme, 1981.

The ratiological Protection Institute of Ireland Staff Superannuation Scheme.

Pension Scheme for the Staff of Colleges of Home Economics, 1987.

Radio Telefís Éireann Superannuation Scheme.

Restrictive Practices Commission (Members') Superannuation Scheme, 1981 (The Competition Authority)

The Regional Tourism Organisation Pension and Life Association Scheme.

St. Patrick's College Maynooth Non-Contributory Pension Plan.

Scéim Aoisliúntas Fhoireann Bhord na Gaeilge, 1982.

Scéim Aoisliúntas Fhoireann Udaráis na Gaeltachta, 1991.

Secondary Teachers' Superannuation Scheme, 1929.

Shannon Free Airport Development Company Limited (General Employees) Superannuation Scheme, 1966.

Special Schools Superannuation Scheme, 1980.

Superannuation Scheme for officers employed under the (Oireachtas) Scheme for Secretarial Assistants.

Teagasc Staff Superannuation Scheme.

Telecom Éireann Main Superannuation Scheme, 1988.

Thomond College of Education Limerick Superannuation Scheme, 1984.

Tourist Traffic Act 1952 (General Employees) Consolidating and Amending Scheme, 1992 (Bord Failte

Éireann).

University College, Cork Pension Scheme Statute LXXIX.

University College, Dublin Pension Schemes Statute XCVI.

University College, Galway Pension Scheme Statute XVII Chapters XXV.

University of Dublin Trinity College Pension Scheme.

University of Limerick Superannuation Scheme.

Voluntary Health Insurance Board Superannuation Scheme, 1965.

Voluntary Hospitals Superannuation Scheme.

The Voluntary Hospitals (non-officers) Superannuation Scheme, 1985.

Waterford Harbour Commissioners Employees' Superannuation Scheme, 1985.

PART II

Schemes for the purpose of providing benefits to the spouses and children of members of any of the schemes specified in Part I in the event of the death of the member.

GIVEN under the Official Seal of the Minister for Social Welfare, this 23rd day of December 1992.

CHARLIE McCREEVY,

Minister for Social Welfare.

The Minister for Finance hereby consents to the making of the foregoing Regulations.

GIVEN under the Official Seal of the Minister for Finance, this 24th day of December 1992.

BERTIE AHERN,

Minister for Finance.

EXPLANATORY NOTE.

The Pensions Act 1990 provides in Part III for the preservation of occupational pension entitlements for people who leave an occupational pension scheme and who have a minimum of 5 years qualifying service in the Scheme, of which at least 2 years is after 1 January 1991. These Regulations provide for a number of matters ancillary to the provisions in the Act.

The Regulations define circumstances in which trustees of a scheme may, instead of providing a preserved benefit, effect a transfer payment from the scheme without the member's consent. They also set out the circumstances in which a person's employment is to be regarded as terminated where a change of employment occurs within a scheme covering more than one employer, where there is a change in ownership of a business, or where there is an interruption in employment.

The Pensions Act 1990 provides for the manner in which preserved benefit is to be calculated in the normal course. The Regulations set out how these calculations are to be modified where there is a change in the normal pensionable age under a scheme before a person leaves employment.

Under the Act the Pensions Board is responsible for determining questions relating to the application of Part III of the Act to particular schemes. Trustees, employers and scheme members are entitled to apply to the Board for such a determination. The Regulations specifies other persons who are entitled to make an application to the Board in connection with any questions arising in relation to this Part of the Act.

Provision is also made for the exclusion of certain public service schemes from the application of Part III of the Pensions Act.