Occupational Pension Schemes (Preservation of Benefits) Regulations, 2002

JurisdictionIreland
CitationIR SI 279/2002
Year2002

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...

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