S.I. No. 279 of 2002

OCCUPATIONAL PENSION SCHEMES (PRESERVATION OF BENEFITS) REGULATIONS, 2002

The Minister for Social, Community and Family Affairs, 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:-

Citation and Commencement

1.   (1)      These Regulations may be cited as the Occupational Pension Schemes (Preservation of Benefits) Regulations, 2002.

(2)      These Regulations shall come into operation on the 2nd day of June, 2002.

(3)      The Occupational Pension Schemes (Preservation of Benefits) Regulations, 1992 ( SI No 445 of 1992 ) are hereby revoked.

Definitions

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 advisers 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;

“Special Calculations Regulations” means the Occupational Pension Schemes (Preservation of Benefits) (Special Calculations) Regulations, 2002 ( S.I No. 277 of 2002 );

“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 €3,800, or such other figure as may from time to time stand prescribed by the Minister;

“transfer payment” has the meaning given to it in section 34(2) of the Act.

Transfer Payments

3.   (1)      Subject to sub-article (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 effected is less than the nominated figure, or

(b)      the Board determines that such transfer should be effected 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 sub-article (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, or

(c)      if the transfer payment would be reduced in accordance with proviso (i) or (ii) of section 34(2) of the Act.

Termination of

Employment

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 terminates and after a period of less than one month following such termination (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)      a member's employment terminates and after a period of less than one month following such termination (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 an affiliated employer and he commences membership of a scheme of the new employer which scheme has received a transfer of monies in respect of benefits accrued by the member in the former scheme such transfer to be of an amount not less than the amount to which the member would have been entitled under section 34(2) of the Act but for this article 4(a), or

(iii)      in the case of a change in ownership of the employer or of the business of the employer a member's employment terminates and after a period of less than one month following such termination (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 or he commences membership of a scheme of the new employer which scheme has received a transfer of monies in respect of benefits accrued by the member in the former scheme such transfer to be of an amount not less than the amount to which the member would have been entitled under Section 34(2) of the Act but for this article 4(a).

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

(i)       subject to the provisions of article 4(a)(i), in the case of a centralised scheme a member's employment terminates and after a period of one month or more following such termination he commences in the relevant employment of a different employer participating in the same scheme, or

(ii)      subject to the provisions of article 4(a)(ii), a member’ s employment terminates and after a period of one month or more following such termination he commences in the relevant employment of an affiliated employer and he commences membership of a scheme of the new employer, or

(iii)      subject to the provisions of article 4(a)(iii), in the case of a change of ownership of the employer or of the business of the employer a member's employment terminates and after a period of one month or more following such termination he commences in the relevant employment of the new employer and resumes membership of the same scheme or he commences membership of a scheme of the new employer.

Reckonable Service

5.   (1)      Where a member's service in relevant employment is treated as not terminated under article 4(a):-

(a)      then notwithstanding that there shall actually have been a change of employer the member shall be treated for the purpose of the Special Calculations Regulations as being in the same employment, and

(b)      the period of the member's reckonable service prior to the termination of employment shall be treated as a period of reckonable service in the relevant employment of the new employer.

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

Interruption of Employment -- Temporary Absence

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.

Interruption of Employment

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 purpose of determining a member’ s reckonable service following the resumption of service in the relevant employment.

Modification of calculation due to change in normal pensionable age.

8.   (1)      Where the basis of calculating long service benefit under a defined benefit scheme is altered between 1 January 1991 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 basic 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 1 January 1991 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 certified 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 basic 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 basic 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.

(4)      In the case of a scheme to which this article applies the amount of additional preserved benefit shall be the greater of, namely:-

(a)  an amount calculated in accordance with the formula-

G - J

where-

G is the benefit to which the member is entitled upon termination of relevant employment under the rules of the scheme (disregarding any provision for revaluation or increase of that benefit after the date of termination of relevant employment) by reference to his new normal pensionable age, and

J is the basic preserved benefit calculated under sub-article (3), and

(b)  an amount calculated in accordance with the formula-

H - J

where-

H is a benefit of such amount as will ensure that its actuarial value is equal to the amount of any contributions (excluding additional voluntary contributions) paid by the member together with compound interest thereon at the rate, if any, applicable under the rules of the scheme to refunds of members' contributions on leaving service, and

J is the basic preserved benefit calculated under sub-article (3), and

(c)  an amount calculated in accordance with the formula

where:-

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

T is as defined in such sub-article 3(b), and

S ₁ is the period of reckonable service, if any, completed prior to 1 January 1991.

Method of Calculation

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 euro or such other amount within that range.

Persons Entitled to Make an Application

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,

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

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

Exclusion of Schemes

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.

SCHEDULE

SCHEMES EXCLUDED FROM THE PROVISIONS OF PART III OF THE ACT

Article 11

PART I

Agricultural Colleges Staff Superannuation Scheme, 1985

An Bord Pleanála (Chairman and Members) Superannuation Scheme, 1986

An Bord Pleanála 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 Atha Cliath Superannuation Scheme

Bord Bainne Cheantar Chorcaighe Superannuation Scheme

Bord na gCon Superannuation Scheme

Bord Iascaigh Mhara Craft and Manual Employees Superannuation Scheme

Bord Iascaigh Mhara Staff Superannuation Scheme

Central Bank of Ireland Superannuation Scheme

Central and Regional Fisheries Board's 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 Secondary 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 Pensions Orders, 1925 to 1981

Industrial Development Authority Staff Superannuation Scheme, 1970

Institiúid Teangeolaíochta Éireann Staff Superannuation Scheme, 1986

Institute of Public Administration Staff Superannuation Scheme, 1983

Irish Gas Board Staff Superannuation Scheme, 1980

Irish National Petroleum Corporation Superannuation Scheme, 1983

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

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

The Radiological Protection Institute of Ireland Staff Superannuation Scheme

Radio Telefís Éireann Superannuation Scheme

Regional Tourism Organisations Pension and Life Association Scheme

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

St. Patricks College Maynooth Non-Contributory Pension Plan

Scéim Aoisliúntas Fhoireann Bhord na Gaeilge, 1982

Scéim Aoisliúntas Fhoireann Udarás na Gaeltachta, 1991

Secondary Teachers' Superannuation Scheme, 1929

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation)

As a consequence of the extension of the Preservation provisions of Part III of the Pensions Act, 1990 (by Chapter 3, Part 4 of the S.I. No. 445 of 1992 ). This has been effected by the adoption of the Occupational Pension Schemes (Preservation of Benefits) Regulations, 2002 which revoke and replace S.I. No. 445 of 1992 with effect from 2 June 2002.

These Regulations provide for matters to do with the preservation of benefits including transfer payments in certain circumstances, certain situations where a change in employment or to ownership of a business occurs, and modifications to the calculation of preserved benefit where there is a change in normal pensionable age.

They also specify persons who are entitled to apply to the Pensions Board for a determination of a question under certain provisions of the Pensions Act and they provide for the exclusion of certain public service schemes from Part III.

In addition to changes arising directly from the extension of the Preservation provisions the Regulations (article 3(4)) reflect the proviso to Section 34(2) of the Pensions Act, 1990 (inserted by section 22 of the Pensions (Amendment) Act, 2002 ).

The “nominated figure” in article 2 has also been changed; it has been rounded down from £3,000 to €3,800.