Number 7 of 2004

PUBLIC SERVICE SUPERANNUATION (MISCELLANEOUS PROVISIONS) ACT 2004

ARRANGEMENT OF SECTIONS

SCHEDULE 1

Bodies to which the definition of “Public Service Body” does not apply

SCHEDULE 2

PART 1

Consequential Amendments to Act Relating to Sections 2(7) and 11(2)

PART 2

Consequential Amendments to Acts Relating to Sections 3 and 10

Number 7 of 2004

PUBLIC SERVICE SUPERANNUATION (MISCELLANEOUS PROVISIONS) ACT 2004

AN ACT TO REMOVE THE COMPULSORY RETIREMENT AGE FOR CERTAIN CATEGORIES OF NEW ENTRANTS INTO THE PUBLIC SERVICE ON OR AFTER 1 APRIL 2004, TO INCREASE THE PENSIONABLE AGE FOR CERTAIN CATEGORIES OF NEW ENTRANTS INTO THE PUBLIC SERVICE FROM THAT DATE, INCLUDING MEMBERS OF EITHER HOUSE OF THE OIREACHTAS AND CERTAIN OFFICE HOLDERS, AND TO MAKE CONSEQUENTIAL PROVISIONS, TO PROVIDE FOR CERTAIN OTHER CATEGORIES OF NEW ENTRANTS, FOR TRANSITIONAL MATTERS AND FOR THE MAKING OF A SCHEME OR SCHEMES FOR THE GRANTING OF SUPERANNUATION BENEFITS TO OR IN RESPECT OF NEW ENTRANTS INTO THE PERMANENT DEFENCE FORCE APPOINTED ON OR AFTER 1 APRIL 2004, AND TO PROVIDE FOR CONNECTED MATTERS. [25th March 2004]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Interpretation.

1.—(1) In this Act, except where the context otherwise requires:

“1980 Regulations” means the Civil Service Superannuation Regulations 1980 ( S.I. No. 188 of 1980 );

“Civil Service” means the Civil Service of the Government and the Civil Service of the State;

“death benefit” means a superannuation benefit payable under a public service pension scheme on the death of the member;

“European Parliament”, in relation to membership, means membership in respect of a constituency within the State and includes, in respect of former membership, a former member of the European Assembly in respect of such a constituency;

“health board” means—

(a) a health board established under the Health Act 1970 ,

(b) the Eastern Regional Health Authority,

(c) an Area Health Board established under the Health (Eastern Regional Health Authority) Act 1999 , or

(d) the Health Board Executive;

“Minister” means the Minister for Finance;

“new entrant” shall be read in accordance with section 2 ;

“preserved benefit” means, in the case of a public servant who leaves before reaching the age for receipt of a pension, a deferred superannuation benefit which is payable at a date later than the date of the public servant's date of leaving office;

“public servant” means—

(a) a person who is employed by a public service body,

(b) a member of the Permanent Defence Force,

(c) a member of either House of the Oireachtas or a member of the European Parliament,

(d) the holder of a qualifying office,

but, subject to section 2 (2), does not include—

(i) the President,

(ii) a member of the judiciary,

(iii) the Master of the High Court,

(iv) a taxing master, or

(v) a county registrar;

“public service body” means—

(a) the Civil Service,

(b) the Garda Síochána,

(c) the Permanent Defence Force,

(d) a local authority for the purposes of the Local Government Act 2001 ,

(e) a health board,

(f) a vocational education committee established under section 7 of the Vocational Education Act 1930 ,

(g) a body, other than a body set out in Schedule 1—

(i) established by or under any enactment (other than the Companies Acts 1963 to 2003), or

(ii) established under the Companies Acts 1963 to 2003 in pursuance of powers conferred by or under another enactment, and financed wholly or partly by means of moneys provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government,

and in respect of which a public service pension scheme exists or applies or may be made,

(h) any body, other than a body set out in Schedule 1, wholly or partly funded out of moneys provided by the Oireachtas or from the Central Fund or the growing produce of that Fund and in respect of which a public service pension scheme exists or applies or may be made,

(i) any subsidiary of a body to which paragraph (d), (e) or (g) relates and in respect of which a public service pension scheme exists or applies or may be made,

and reference to “public service” shall be read accordingly;

“public service pension scheme” means an occupational pension scheme or pension arrangement, by whatever name called, for any part of the public service which—

(a) is provided for under the Superannuation Acts 1834 to 1963 or any other enactment to like effect, or

(b) is made by a relevant Minister or which has been approved or requires the approval or consent, however expressed, of either or both a relevant Minister and the Minister,

but is not a scheme or arrangement in respect of a body or category of bodies set out in Schedule 1;

“qualifying office” has the same meaning as it has in section 13 (inserted by the Oireachtas (Allowances to Members) and Ministerial, Parliamentary and Judicial Offices (Amendment) Act 1977 ) of the Ministerial and Parliamentary Offices Act 1938 , that is to say—

(a) a ministerial office within the meaning of that section as amended by the Oireachtas (Allowances to Members) and Ministerial and Parliamentary Offices (Amendment) Act 1973 , or

(b) a secretarial office within the meaning of that section as amended by the Oireachtas (Allowances to Members) and Ministerial, Parliamentary and Judicial Offices (Amendment) Act 1983 and the Ministerial, Parliamentary and Judicial Offices and Oireachtas Members (Miscellaneous Provisions) Act 2001 ;

“relevant Minister”, in relation to a public service pension scheme, means the Minister or Ministers of the Government responsible for the making or approval of, or granting consent to, such scheme;

“retirement benefit” means a superannuation benefit which is payable on retirement or discharge;

“specified fire brigade employee” means a whole-time employee of a fire authority under the Fire Services Act 1981 whose duties include the attendance at fires and whose conditions of employment, as determined by a local authority under section 158(1)(b) of the Local Government Act 2001, require him or her to retire at 55 years of age;

“subsidiary” means a subsidiary within the meaning of the Companies Act 1963 ;

“superannuation benefit” means a pension, gratuity or other allowance payable on resignation, retirement, discharge or death to or in respect of a member or former member of a public service pension scheme in accordance with the terms of the scheme.

(2) In this Act—

(a) a reference to a section or schedule is a reference to a section of, or schedule to, this Act, unless it is indicated that a reference to some other provision is intended,

(b) a reference to a subsection or paragraph is a reference to the subsection or paragraph of the provision in which the reference occurs unless it is indicated that a reference to some other provision is intended.

(3) A reference to another enactment is to that enactment as amended or modified at any time by any enactment.

New entrant.

2.—(1) Subject to subsections (2) to (6), reference in this Act to “new entrant” means a person who is not serving in a public service body, or a body to which Schedule 1 relates, on 31 March 2004 but becomes a public servant on or after 1 April 2004.

(2) Where a person is not a public servant (by virtue of the exclusions to “public servant” in section 1 ) but is a person to whom—

(a) paragraph (i) of those exclusions relates and such person holds, or had held on or before 31 March 2004, the office to which that paragraph relates, or

(b) paragraph (ii), (iii), (iv) or (v) of those exclusions relates and such person holds on 31 March 2004 an office or position to which one of those paragraphs relates or to whom subsection (3) would apply if the office or position were that of a public servant within the meaning of this Act,

then, where such person on or after 1 April 2004 becomes a public servant for the purposes of this Act, then that person shall be deemed not to be a new entrant.

(3) Where—

(a) a person on 31 March 2004—

(i)   stands seconded from the public service to a body not in the public service, either within or outside the State or both, or

(ii) is absent on leave with or without pay from the public service,

and

(b) that person is entitled to resume his or her office or position or another office or position within the public service,

then that person shall not be treated as a new entrant if he or she resumes his or her office or position, or takes up another office or position, within the public service on or after 1 April 2004.

(4) Where—

(a) a person duly receives a written offer of appointment as a public servant before 1 April 2004 and takes up that offer after that date,

(b) a person was serving in a public service body or a body to which Schedule 1 relates prior to 31 March 2004 and left such an office or position and takes up appointment as a public servant on or after 1 April 2004—

(i) under the same contract of employment, or

(ii) no later than 26 weeks following the last day of service prior to 31 March 2004,

or

(c) a person who immediately before 1 April 2004 stood admitted as a trainee Garda to the Garda College at Templemore,

and where—

(I) but for this subsection, subsection (1) would apply to him or her, and

(II) where paragraph (a) applies, the terms of the offer of appointment would be contravened if subsection (1) were to apply,

then, such person shall not be regarded as a new entrant and the provisions applicable to a public servant shall, but only in so far as the application of provisions relating to retirement age and superannuation, as the case may be, apply in the same manner as to a person serving in the public service on 31 March 2004.

(5)  (a)  Where before 1 April 2004 a person was a member of either House of the Oireachtas or the European Parliament, or was a holder of a qualifying office, then such person shall not be regarded as a new entrant for the purposes of any superannuation benefit payable in respect of membership of the Oireachtas or the European Parliament or in respect of any qualifying office.

(b)  A person who holds or has held the office of Taoiseach shall not be regarded as a new entrant in relation to any superannuation benefit payable in respect of the holding of a qualifying office.

(6) Where on or after 1 April 2004 a public servant who is not a new entrant ceases to serve in a public service body or in a body to which Schedule 1 relates and does so otherwise than for employment in another public service body or in a body to which Schedule 1 relates, then that person shall, if he or she subsequently applies for an office or position within the public service, be treated as a new entrant in respect of such subsequent service unless he or she takes up appointment—

(a) under the same contract of employment, or

(b) as a public servant no later than 26 weeks following the last day of service prior to cessation.

(7) For the purpose of supplementing subsection (5), the Act referred to in columns 1 and 2 of Part 1 of Schedule 2 is amended to the extent specified in column 3 of that Part opposite the references to the Act concerned.

Removal of compulsory retirement age for new entrants to public service.

3.—(1) Except where otherwise provided for by this Act, a person who is a new entrant to the public service shall not be obliged to retire on age grounds.

(2) For the purpose of supplementing subsection (1) and section 10 , the Acts referred to in columns 1 and 2 of Part 2 of Schedule 2 are amended to the extent specified in column 3 of that Part opposite the references to the Act concerned.

Compulsory retirement age for new entrants to Garda Síochána.

4.—(1) A person who is appointed as a new entrant to the Garda Síochána on or after 1 April 2004 shall cease to be a member—

(a) on attaining the age of 55 years, or

(b) at a later age up to the age of 60 years subject to the Commissioner of the Garda Síochána being satisfied that the member is fully competent and available to undertake, and fully capable of undertaking, the duties of his or her position as a member of the Garda Síochána.

(2) For the purposes of subsection (1)(b) the Commissioner of the Garda Síochána shall require, at such intervals as the Commissioner considers appropriate, certification as to the health and fitness of the member concerned by a medical practitioner nominated by the Commissioner.

(3) For the purposes of subsections (1) and (2), where the member concerned is the Commissioner of the Garda Síochána, then references to the Commissioner of the Garda Síochána or to the Commissioner in those subsections shall be read as references to the Minister for Justice, Equality and Law Reform.

Amendment of Superannuation (Prison Officers) Act 1919, etc.

5.—(1) The Superannuation (Prison Officers) Act 1919 is amended by substituting the following for section 1(1)(a):

“(a) 55 years shall be substituted for 60 years or 65 years, as appropriate, as the age of retirement which without a medical certificate a superannuation allowance may be granted and, accordingly, sections 10 and 11 of the Superannuation Act 1859 (as amended by the Public Service Superannuation (Miscellaneous Provisions) Act 2004) shall, in their application to such officers as aforesaid, have effect as if for ‘60 years’ or ‘65 years’ there were substituted ‘55 years’; but where any such officer, other than an officer who is a new entrant—

(i) is covered by—

(I) the report of Departmental Council, Department of Justice, known as the Agreed Report No. 8/1983 which was signed on behalf of the Staff Side on 21 September 1983 and on behalf of the Official Side on 3 October 1983, or

(II) the report known as the Civil Service Conciliation and Arbitration (Higher) Scheme Conciliation Council Report 1/88 which was adopted on behalf of the Staff Side and on behalf of the Official Side on 16 February 1988,

and

(ii) has in aggregate 30 years' service as such an officer,

then ‘50 years’ shall be so substituted instead of ‘55 years’;

(aa) 60 years shall be substituted for 65 years as the age at which preserved benefit (within the meaning of section 1 of the Public Service Superannuation (Miscellaneous Provisions) Act 2004, other than in so far as it relates to a death benefit) can be paid and, accordingly, section 6 of the Superannuation Act 1909 (as amended by the Public Service Superannuation (Miscellaneous Provisions) Act 2004) shall, in its application to such officers as aforesaid, have effect as if for ‘65 years’ there were substituted ‘60 years’;”.

(2) The Superannuation Acts 1834 to 1963 shall have effect in respect of the class of officers who are prison governors, subject to the Superannuation (Prison Officers) Act 1919 as if, with effect from 16 February 1988, that class of officers had been prescribed under and for the purposes of section 1(1) (as adapted by the Superannuation (Prison Officers) Act 1919, Adaptation Order 1933 (S.R. & O. No. 71 of 1933 )) of the Superannuation (Prison Officers) Act 1919.

Compulsory retirement age and new entrant fire brigade employees.

6.—Section 3 shall not apply to a specified fire brigade employee who is a new entrant.

Compulsory retirement age and new entrants to Permanent Defence Force.

7.—Section 3 shall not apply to new entrants to the Permanent Defence Force other than in respect of new entrants to the Army Nursing Service.

Pension schemes, etc., and new entrants to Permanent Defence Force, etc.

8.—(1) No superannuation benefit shall be granted and no other arrangements shall be entered into for the provision of such benefit to or in respect of a member of the Permanent Defence Force who is a new entrant otherwise than—

(a) in accordance with a scheme under this section, or

(b) with the consent of the Minister for Defence and the Minister.

(2) The Minister for Defence shall, with the consent of the Minister, make a scheme or schemes for the purposes of granting superannuation benefits to or in respect of members of the Permanent Defence Force appointed on or after 1 April 2004 who are new entrants.

(3) Every scheme made under subsection (2) shall, subject to section 10 (2), fix the time and conditions of retirement for all members of the Permanent Defence Force to or in respect of whom superannuation benefits are payable under the scheme and different times and conditions may be fixed in respect of different classes of such members.

(4) The Minister for Defence may, with the consent of the Minister, make a scheme amending or revoking a scheme under this section (including a scheme under this subsection).

(5) Every scheme under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the scheme is passed by either such House within the next 21 days on which that House has sat after the scheme has been laid before it, the scheme shall be annulled accordingly but without prejudice to the validity of anything previously done under that scheme.

Non application to Chaplaincy Service.

9.—This Act does not apply to members of the Chaplaincy Service to the Defence Forces and the provisions of the Defence Forces (Pensions) Acts 1932 to 1975 relating to any such member shall continue to apply as if this Act had not been enacted.

Pensionable age generally.

10.—(1) Subject to subsections (2) to (6) and sections 5 and 11, no superannuation benefit other than death benefits shall be paid in respect of service as a new entrant before he or she reaches the age of 65 years.

(2) Subject to subsection (6)—

(a) where a member of the Permanent Defence Force other than the Army Nursing Service is a new entrant, then no superannuation benefit shall be paid in respect of service as a new entrant before he or she reaches the age of 50 years, other than death benefits, and

(b) in the case of members of the Army Nursing Service, subsection (1) shall apply.

(3) Subject to subsection (6), where a member of the Garda Síochána is a new entrant, no superannuation benefit shall be paid in respect of service as a new entrant before he or she reaches the age of 55 years, other than death benefits.

(4) Subject to subsection (6), nothing in this section shall be read as prohibiting a provision in a public service pension scheme from setting the age at which preserved benefit, other than a death benefit, first becomes payable at an age later than the age at which a retirement benefit is payable.

(5) Subject to subsection (6), where a specified fire brigade employee is a new entrant, no superannuation benefit shall be paid before he or she reaches the age of 55 years, other than death benefits.

(6) Nothing in this section or section 3 shall affect any provision by or under any enactment or public service pension scheme which provides for the award of superannuation benefits at a date earlier than that specified in those sections or in the amendments provided for by Part 2 of Schedule 2—

(a) on the grounds of ill health, or

(b) where it is provided for by the provisions of a public service pension scheme, on 31 March 2004, in the case of compulsory cessor of office or position before 65 years of age, or

(c) for any other specified purpose under any enactment or public service pension scheme that applies to a new entrant and is approved by the relevant Minister and the Minister after 31 March 2004.

Pensionable age for new entrants to Houses of Oireachtas, etc.

11.—(1) In respect of a new entrant to whom either or both paragraph (c) or (d) of the definition of “public servant” in section 1 relates, no superannuation benefit shall be paid before he or she reaches the age of 65 years other than on grounds of ill-health, death or as provided for by section 10 (6)(c).

(2) For the purpose of supplementing subsection (1), the Act referred to in columns 1 and 2 of Part 1 of Schedule 2 is amended to the extent specified in column 3 of that Part opposite the references to the Act concerned.

Accrual rate for pension purposes.

12.—(1) For new entrants to a local authority the provisions of the Local Government (Superannuation) (Consolidation) Scheme 1998 ( S.I. No. 455 of 1998 ) that provide for any excess of a person's service over 20 years to be doubled for superannuation purposes do not apply.

(2) Subsection (1) does not apply to a fire brigade employee to whom section 10 (5) applies.

(3) Section 65 of the Mental Treatment Act 1945 does not apply to new entrants.

Reckoning for superannuation purposes of service after a specified age.

13.—Except where otherwise provided for by this Act and subject to accruing a maximum pension as provided for as of 31 March 2004 by or under any enactment or public service pension scheme, any restriction on reckoning of service for superannuation purposes after a person reaches a specified age shall not apply to a new entrant.

Application to existing pension provisions.

14.—The provisions of every public service pension scheme shall be read subject to this Act and every such scheme shall have effect accordingly.

Removal of doubts.

15.—Where a doubt, question or dispute arises in the operation of this Act in respect of whether or not a person is or is not a new entrant, then such doubt, question or dispute shall be determined by the Minister.

Short title and collective citation.

16.—(1) This Act may be cited as the Public Service Superannuation (Miscellaneous Provisions) Act 2004 .

(2) The Defence Forces (Pensions) Acts 1932 to 1975, this subsection, sections 8, 9 and 10(2) and, in so far as it relates to those sections, section 1 may be cited together as the Defence Forces (Pensions) Acts 1932 to 2004.

SCHEDULE 1

Bodies to which the definition of “Public Service Body” does not apply

Section 1 .

1.   A body which has an occupational pension scheme or arrangement that is made or may be made under the agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland establishing Implementation Bodies done at Dublin on 8 March 1999.

2.   Aer Lingus Group p.l.c.

3.   Aer Rianta c.p.t.

4.   Arramara Teoranta.

5.   Bord Gáis Éireann.

6.   Bord na gCon.

7.   Bord na Móna.

8.   Córas Iompair Éireann.

9.   Coillte Teoranta.

10. Electricity Supply Board.

11. A harbour authority within the meaning of section 7 of the Harbours Act 1996 relates.

12. Horse Racing Ireland.

13. Irish National Stud Company Limited.

14. Irish Aviation Authority.

15. An Post.

16. An Post National Lottery Company.

17. Radio Teilifís Éireann.

18. Railway Procurement Agency.

19. Voluntary Health Insurance Board.

20. A subsidiary of any body to which this Schedule relates, including a subsidiary of any subsidiary.

SCHEDULE 2

Section 2(7) and Section 11(2) .

PART I

Consequential Amendments to Act Relating to Sections 2(7) and 11(2)

PART 2

Consequential Amendments to Acts Relating to Sections 3 and 10

Section 3 and 10 .