PART VII

Amendments to Pensions Act, 1990

42. —Section 2 of the Pensions Act is hereby amended—

(a) by the substitution for the definition of “auditor” of the following definition:

“‘auditor’, in relation to a scheme, means a person appointed in pursuance of this Act to act as auditor, for the purposes of this Act, of the scheme;”,

(b) by the insertion of the following definitions after the definition of “defined contribution scheme”:

“‘early retirement rule’ means a provision of a scheme under which a member may retire with entitlement to an immediate benefit where either—

(i) the member's right is subject to the consent of some person or the satisfaction of some condition not relating only to age or period of service in relevant employment or both, or

(ii) the calculation of the member's immediate retirement benefit involves or may involve the use of an actuarial reduction factor related to his age at the date of his retirement;

‘external member’ in relation to a scheme, means any person who, having been admitted to membership under the rules of the scheme, remains entitled to any benefit under the scheme in respect of a period of service whilst employed outside the State;

‘external scheme’ means a scheme established under the law of a country other than the State;”,

(c) by the insertion of the following definition after the definition of “funded scheme”:

‘“immediate retirement benefit’ means a benefit payable to a member under the rules of a scheme immediately on retirement from relevant employment but does not include a refund of the member's contributions with or without interest or a transfer of an amount of money from the scheme—

(i) to another scheme, or

(ii) for application under a policy or contract of insurance approved by the Revenue Commissioners under Chapter II of Part I of the Finance Act, 1972 ,”,

(d) by the substitution for the definition of “normal pensionable age” of the following definition:

“‘normal pensionable age’ means the later of—

(a) the earliest age at which a member of a scheme is entitled under the rules of the scheme (disregarding any early retirement rule) to receive an immediate retirement benefit, or

(b) the age of 60 years:

Provided that if a member of a scheme is required to retire from relevant employment at an age below 60 years with entitlement under the rules of the scheme to receive an immediate retirement benefit, normal pensionable age means the age at which the member is required to retire from relevant employment;”,

(e) by the insertion after subparagraph (iv) of the definition of “occupational pension scheme” of the following subparagraph:

“or

(v) which has been approved by the Revenue Commissioners for the purpose of one or more of the following, that is to say, section 32 of the Finance Act, 1921, or section 34 of the Finance Act, 1958 , or sections 222 or 229 of the Income Tax Act, 1967 ,”,

and

(f) by the substitution for the definition of “reckonable service” of the following definition:

“‘reckonable service’ means service in the relevant employment during membership of the scheme but does not include service as a member of the scheme where either—

(a) the only benefit thereunder is in respect of death prior to normal pensionable age, or

(b) the member has been notified in writing by the trustees that such service does not entitle him to long service benefit;”.

43. —(1) Section 3 (1) of the Pensions Act is hereby amended by the insertion after paragraph (b) of the following paragraph:

“(bb) Where a person who is required under regulations made under section 5A, to carry out any of the duties imposed upon trustees by this Act or by any regulations thereunder contravenes, in his capacity as such a person, a provision of this Act or any regulations thereunder, he shall be guilty of an offence.”.

(2) Section 3 (1) (c) of the Pensions Act is hereby amended by the substitution of “paragraph (a), (b) or (bb)” for “paragraph (a) or (b)”.

44. —The Pensions Act is hereby amended by the insertion after section 5 of the following section:

“5A.—Regulations may provide that the provisions of this Act and of regulations thereunder shall apply to—

(a) schemes with external members, or

(b) external schemes, or

(c) schemes where the majority of the trustees are not resident within the State,

with and subject to such modifications as may be prescribed and such regulations may require persons other than the trustees of such schemes to carry out in relation to those schemes any of the duties imposed upon trustees by this Act or by regulations thereunder.”.

45. —Section 37 of the Pensions Act is hereby amended by the insertion after subsection (4) of the following subsection:

“(4A) Regulations may specify the method of calculating preserved benefit payable under schemes where on termination of relevant employment a member has periods of reckonable service in more than one scheme relating to the same employment.”.

46. —The Pensions Act is hereby amended by the substitution for section 41 of the following section:

“41.—(1) Subject to section 52, this Part shall apply to any scheme other than—

(a) a defined contribution scheme, or

(b) a scheme under which service in the relevant employment after the 1st day of January, 1993, does not entitle the members to long service benefit and, where any long service benefit is determined by reference to a member's earnings, such earnings in the case of all members relate to a date or a period prior to the 1st day of January, 1993.

(2) Notwithstanding subsection (1), section 48 shall apply to any scheme other than a defined contribution scheme.”.

47. —(1) Section 56 of the Pensions Act is hereby amended by the substitution for subsection (3) of the following subsection:

“(3) For the purposes of this Act a person shall not be qualified for appointment as auditor of a scheme—

(a) unless he is qualified to be appointed as an auditor of a company in accordance with the Companies Acts, 1963 to 1990, or

(b) if he is a member of a class of persons standing prescribed for the time being for the purposes of this section.”.

(2) Subsection (4A) (inserted by section 59 of the Act of 1992) of section 56 of the Pensions Act is hereby repealed.

48. —Section 59 of the Pensions Act is hereby amended by the insertion after paragraph (d) of the following paragraph:

“(e) if the scheme is wound up, to apply the resources of the scheme in discharging its liabilities without undue delay in accordance with the rules of the scheme and where applicable, with section 48.”.

49. —Section 63 of the Pensions Act is hereby amended by the substitution for subsection (1) of the following subsection:

“(1) The High Court (in this Part referred to as ‘the Court’) may, on application to it by the Board by petition, make an order—

(a) for the removal of a trustee of a scheme and the appointment of a new trustee, and

(b) that a trustee so removed shall not act as a trustee of a scheme for such period as the Court may order.”.

50. —The Pensions Act is hereby amended by—

(a) the insertion after section 64 of the following section:

“64A.—(1) The provisions of this Part and of any regulations made thereunder shall override any rule of a scheme to the extent that that rule conflicts with those provisions.

(2) Any question as to—

(a) whether any provision of this Part (including the application of any provision as modified by regulations) or any regulations made thereunder conflicts with any rule of a scheme, or

(b) whether a scheme is a defined benefit scheme or a defined contribution scheme for the purposes of this Part,

shall be determined by the Board on application to it in writing in that behalf by a person who, in relation to the scheme, corresponds to a person mentioned in section 38 (3) in relation to the scheme mentioned therein.

(3) An appeal to the High Court on a point of law from a determination of the Board under subsection (2) in relation to a scheme, may be brought by the person who made, or a person who was entitled to make, the application concerned under subsection (2).”,

and

(b) the insertion in section 26 (1) (a) of “64A” after “58”.

51. —Section 65 of the Pensions Act is hereby amended by the insertion after the definition of “employer” of the following definition:

“‘equality officer’ means an equality officer of the Labour Relations Commission appointed under section 37 of the Industrial Relations Act, 1990 ;”.

52. —(1) The Third Schedule to the Pensions Act is hereby amended by the substitution for paragraph 1 of the following paragraph:

“1. The benefits for the purposes of this paragraph shall be all future benefits payable under the rules of the scheme to or in respect of a person who at the effective date of the certificate is receiving benefits or has reached normal pensionable age, excluding future increases in such benefits which are, at the effective date of the certificate, contingent upon the exercise of some person's discretion.”.

(2) The Third Schedule to the Pensions Act is hereby amended by the substitution for paragraph 2 of the following paragraph:

“2. The benefits for the purposes of this paragraph shall be any additional benefits secured for or granted to or in respect of a member of a scheme under the scheme by way of additional voluntary contributions or a transfer of rights from another scheme. Such benefits shall be calculated as at the effective date of the certificate and shall be—

(a) where, at the effective date of the certificate, the member's service in relevant employment has terminated and a transfer payment has not been applied in accordance with section 34 or 35, preserved benefit payable in respect of such additional benefits calculated in accordance with Part III or, if no such preserved benefit is payable, the benefits payable under the rules of the scheme in respect of the additional voluntary contributions or the transfer of rights, and

(b) where, at the effective date of the certificate, the member is in relevant employment, preserved benefit in respect of such additional benefits calculated in accordance with Part III, as if the member's service in relevant employment had terminated on such date but disregarding any provision requiring the completion of a minimum period of qualifying service.”.