PART 4

Amendments of Existing Provisions of Principal Act

Chapter 1

Amendments to Part 1 of Principal Act

6. —Section 2(1) of the Principal Act is amended—

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

“‘auditor’, in relation to a scheme or the business of a PRSA provider, means a person appointed in pursuance of this Act to act as auditor, for the purpose of this Act, of the scheme or the business of a PRSA provider, as the case may be;”,

(b) by the insertion after the definition of “the chief executive” of the following definition:

“‘contract of employment’ means—

(a) a contract of service or apprenticeship, and

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971 , and is acting in the course of that business, to do or perform personally any work or services for a third person (whether or not the third person is party to the contract),

whether the contract is expressed or implied or if express, whether it is oral or in writing,”,

(c) by the insertion after the definition of “early Retirement Rule” of the following definitions:

“‘employee’ means a person of any age who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant, within the meaning of the Civil Service Regulation Act, 1956 ) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the Local Government Act, 1941, or of a harbour authority, a health board or a vocational education committee shall be deemed to be an employee employed by the authority, board or committee, as the case may be;

‘employer’ in relation to an employee, means (except in section 49 and in Part VII) the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of ‘contract of employment’ is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer;”,

(d) by the insertion after the definition of “prospective member” of the following definitions:

“‘PRSA’ has the meaning assigned to it by section 91;

‘PRSA provider’ has the meaning assigned to it by section 91;”,

(e) by the insertion after the definition of “member” of the following definition:

“‘Member State’ means a Member State of the European Communities;”.

(f) by the insertion after the definition of “the Minister” of the following definition:

“‘multi-employer scheme’ means a scheme which applies to persons employed by more than one employer;”,

and

(g) by the insertion after the definition of “scheme” of the following definitions:

“‘section’, in relation to a sectionalised scheme, means—

(a) one of the distinct classes referred to in the definition of the latter expression into which the persons to whom the scheme applies are divided, or

(b) one of the distinct parts of the resources of the scheme referred to in the said definition which is to be applied in the manner referred to in the said definition,

or both, as the case may require;

‘sectionalised scheme’ means a multi-employer scheme under the rules of which—

(a) the persons to whom the scheme applies are divided into distinct classes, and

(b) with respect to each such class, save in accordance with such conditions as may be prescribed, a distinct part of the resources of the scheme—

(i) is required to be applied in the provision of benefits for and in respect of the persons in that class, and

(ii) cannot be applied in the provision of benefits for and in respect of the persons in any other class, other than a class with no members in reckonable service.”.

7. —Section 3(1) of the Principal Act is amended—

(a) by the substitution for paragraphs (a), (b) and (bb) of the following paragraphs:

“(a) Where—

(i) a trustee in his capacity as trustee,

(ii) an employer,

(iii) a PRSA provider,

(iv) an actuary or auditor of a scheme or a PRSA in his capacity as such actuary or auditor,

(v) 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, in his capacity as such a person, or

(vi) any other person,

contravenes a provision of this Act or a regulation thereunder, he shall be guilty of an offence.

(b) Where a person of whom a requirement is made by the Pensions Ombudsman under subsection (1) or (2) of section 137 fails to comply with that requirement, he shall be guilty of an offence.”;

and

(b) by the substitution in paragraph (c) for “(a), (b) or (bb)” of “(a)”.

8. —(1) The following subsection is substituted for subsection (5) of section 3 of the Principal Act:

“(5) Proceedings for a summary offence—

(a) under any provision of this Act (other than subsection (1)(b)) may be brought and prosecuted by the Board,

(b) under subsection (1)(b) may be brought and prosecuted by the Pensions Ombudsman.”.

(2) Subsection (6) of section 3 of the Principal Act is amended—

(a) by the substitution for “Board” of “Board or Pensions Ombudsman, as the case may be,”, and

(b) by the substitution for “Board's” of “Board's or Pensions Ombudsman's”.

9. —The following section is substituted for section 4 of the Principal Act:

10. —Section 5 of the Principal Act is amended—

(a) by the insertion after subsection (3) of the following subsections:

“(3A) Without prejudice to any specific provision of this Act, any regulations may provide—

(a) for any of the provisions of this Act, or any of those regulations, to apply to the different sections of a sectionalised scheme as though each section were a separate scheme for any or all of the purposes of this Act, and

(b) if provision as aforesaid is made in relation to a provision of this Act, that the provision so applied shall have effect subject to specified modifications, being modifications the making of which the Minister considers necessary or expedient in consequence of the application of the provision in that manner and which, in every case, conform to the purposes, principles and spirit of this Act.

(3B) For the avoidance of doubt, regulations referred to in subsection (3A) may provide for any or all of the provisions of this Act or any or all of those regulations, to apply both to the different sections of the scheme concerned as though each were a separate scheme and to the scheme as a whole.”.

and

(b) by the insertion after subsection (4) of the following subsection:

“(5) The Minister may, after consultation with the Minister for Enterprise, Trade and Employment and with the consent of the Minister for Finance, make regulations prescribing any matter or thing in relation to a scheme or PRSA for the purpose of enabling any provision of the Protection of Employees (Part-Time Work) Act, 2001 to have full effect.”.

11. —Section 5B of the Principal Act is amended by the insertion after “certain categories of external schemes” of “or any scheme provided under the Agreement between the Government of Ireland and Government of the United Kingdom of Great Britain and Northern Ireland establishing Implementation Bodies done at Dublin on the 8th day of March 1999”.

12. —The following section is inserted after section 7 of the Principal Act: