Pensions Act , 1990

Preliminary and General

1 Short title and commencement.

1.—(1) This Act may be cited as the Pensions Act, 1990.

(2) This Act shall come into operation on such day or days as may be appointed by order or orders of the Minister, either generally or with reference to a particular purpose or provision, and different days may be so appointed for different purposes and different provisions of this Act.

2 Interpretation.

2.—(1) In this Act, unless the context otherwise requires—

“actuarial value” means the equivalent cash value of a benefit (including, where appropriate, provision for any revaluation of such benefit) calculated by reference to appropriate financial assumptions and making due allowance for the probability of survival to normal pensionable age and thereafter in accordance with normal life expectancy on the assumption that the member of a scheme, at the effective date of calculation, is in a normal state of health having regard to his age;

“actuary”, in relation to a scheme, means a person appointed in pursuance of this Act to act as actuary, for the purposes of this Act, of the scheme, and “actuarial” shall be construed accordingly;

“additional voluntary contributions” means such contributions (if any) as are paid on a voluntary basis by a member of a scheme and are designed to fully provide additional benefits;

“administrator” has the meaning assigned to it by section 13 (1) of the Finance Act, 1972;

“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;

“benefits”, in relation to a scheme, means, other than in Part VII, either or both of the following, that is to say—

(a) benefit for the member of a scheme at normal pensionable age or in respect of earlier or later retirement, or on leaving the relevant employment, and

(b) benefit for the member's widow, widower, or dependants or others, on the death of the member;

“the Board” means the body established by section 9;

“chairman of the Board” shall be construed in accordance with paragraph 3 of the First Schedule;

“the chief executive” means the chief officer of the Board appointed under section 15;

“defined benefit scheme” means, subject to section 27, a scheme which is not a defined contribution scheme;

“defined contribution scheme” means, subject to section 27, a scheme which, under its rules, provides long service benefit, the rate or amount of which is in total directly determined by the amount of the contributions paid by or in respect of the member and includes a scheme the contributions under which are used, directly or indirectly, to provide—

(a) benefits, other than long service benefit, and

(b) long service benefit the rate or amount of which is in total directly determined by the part of the contributions aforesaid that is used for the provision of the long service benefit;

“the establishment day” means the day appointed by the Minister under section 8;

“functions” includes powers and duties;

“funded scheme” means a scheme under which some or all of its resources are set aside in advance to provide benefits in a manner which is independent of the employer's business activities;

“long service benefit” means the benefits which will be payable under a scheme in accordance with an obligation to or in respect of a member of a scheme on the assumption that he remains in relevant employment until such time as he attains normal pensionable age;

“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;

“the Minister” means the Minister for Social Welfare;

“normal pensionable age” means the earliest age at which a member of a scheme is entitled to receive benefits under the rules of the scheme on retirement from relevant employment, disregarding any provisions under such rules for early retirement on grounds of ill-health or otherwise;

“occupational pension scheme” means any scheme or arrangement—

(a) which is comprised in one or more instruments or agreements, and

(b) which provides or is capable of providing in relation to employees in any description of employment who reside within the State, benefits, and

(c) (i) which has been approved of by the Revenue Commissioners for the purpose of Chapter II of Part I of the Finance Act, 1972, or

(ii) the application for approval of which under Chapter II of Part I of the Finance Act, 1972, is being considered, or

(iii) which is a statutory scheme to which section 17 of the Finance Act, 1972, applies;

“prescribed” means prescribed by regulations made by the Minister under this Act;

“preserved benefit” has the meaning assigned to it by section 28 (2);

“prospective member” means any person who is already in relevant employment and who, by virtue of his contract of service or the rules of the scheme is or will be eligible to join the scheme or will in any event join the scheme if his service in relevant employment continues and the relevant terms of his contract of employment or, as the case may be, the relevant terms of the rules of the scheme remain unaltered during that time;

“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;

“regulations” means regulations made by the Minister under this Act;

“relevant employment” means any employment (or any period treated as employment) to which a scheme applies;

“resources”, in relation to a scheme, means the funds out of which the benefits provided by the scheme are payable from time to time, including the proceeds of any policy of insurance taken out, or annuity contract entered into, for the purposes of the scheme;

“revaluation percentage” has the meaning assigned to it by section 33;

“rules”, in relation to a scheme, means the provisions of a scheme, by whatever name they are called;

“scheme” means an occupational pension scheme;

“trustees”, in relation to a scheme, which is established under a trust, means the trustees of the scheme and, in relation to a scheme not so established, means the administrator of the scheme and, accordingly, references to trustees shall, except in sections 59, 62, 63 and 64, be construed as including references to administrators.

(2) In this Act—

(a) a reference to a Part is to a Part of this Act unless it is indicated that a reference to a Part of a Schedule to this Act or of some other enactment is intended,

(b) a reference to a section or a Schedule is a reference to a section of, or a Schedule to, this Act unless it is indicated that reference to some other enactment is intended,

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

(3) In this Act a reference to an enactment shall be construed as a reference to that enactment as amended or extended by any other enactment including this Act.

3 Offences.

3.—(1) (a) Where a trustee contravenes, in his capacity as trustee, a provision of this Act or a regulation thereunder, he shall be guilty of an offence.

(b) Where an actuary or auditor of a scheme contravenes, in his capacity as such actuary or auditor, a provision of this Act or a regulation thereunder, he shall be guilty of an offence.

(c) In a prosecution for an offence under paragraph (a) or (b) it shall be a defence for the accused person to prove that the contravention to which the offence relates was attributable to a contravention by one or more other persons of a provision of this Act or a regulation thereunder and that he took such reasonable steps (if any) in the circumstances as were open to him to secure the compliance of the person or persons aforesaid with the provision concerned.

(2) Where in any report, certificate or other document required for the purposes of any provision of this Act or regulations thereunder, a person makes a statement which is, to his knowledge, false or misleading in any material particular, he shall be guilty of an offence.

(3) A person guilty of an offence under subsection (1) or (2) shall be liable—

(a) on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding one year, or to both,

(b) on conviction on indictment to a fine not exceeding £10,000 or to imprisonment for a term not exceeding 2 years, or to both.

(4) Where an offence under this Act is committed by a body corporate and is proved to have been so committed with the consent or connivance of or to be attributable to any neglect on the part of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in such capacity, that person shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished as if he were guilty of the first-mentioned offence.

(5) Proceedings for a summary offence under this Act may be brought and prosecuted by the Board.

4 Exchange of information.

4.—Notwithstanding anything contained in any enactment, information held by the Board for the purposes of this Act may be transferred by the Board to the Revenue Commissioners and information held by the Revenue Commissioners for the purposes of Chapter II of Part I of the Finance Act, 1972 relating to occupational pension schemes may be transferred by the Revenue Commissioners to the Board.

5 Regulations generally.

5.—(1) The Minister may make regulations—

(a) for any purpose in relation to which regulations are provided for by any of the provisions of this Act, and

(b) for prescribing any matter or thing referred to in this Act as prescribed or to be prescribed.

(2) Except in so far as this Act otherwise provides, any power conferred thereby to make regulations may be exercised—

(a) either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified cases or classes of case, and

(b) so as to make, as respects the cases in relation to which it is exercised—

(i) the full provision to which the power extends or any lesser provision (whether by way of exception or otherwise),

(ii) the same provision for all cases in relation to which the power is exercised or different provision for different cases or classes of case, or different provision as respects the same case or class of case for different purposes of this Act,

(iii) any such provision either unconditionally or subject to any specified condition.

(3) Without prejudice to any specific provision of this Act, any regulations may contain such incidental or supplementary provisions as may appear to the Minister to be expedient for the purpose of the regulations.

6 Laying of regulations before Houses of Oireachtas.

6.—Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything done thereunder.

7 Expenses.

7.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART II Establishment of Pensions Board

8 Establishment day.

8.—The Minister may by order appoint a day to be the establishment day for the purposes of this Part.

9 Establishment of Board.

9.—(1) On the establishment day there shall stand established a body to be known as An Bord Pinsean—The Pensions Board, and in this Act referred to as “the Board”, to perform the functions conferred on it by this Act.

(2) The provisions of the First Schedule shall have effect with respect to the Board.

10 Functions of Board.

10.—(1) The functions of the Board shall be—

(a) to monitor and supervise the operation of this Act and pensions developments generally;

(b) to advise the Minister either at his request or on its own initiative on all matters relating to the functions assigned to the Board under this Act and on matters relating to pensions generally;

(c) to issue guidelines on the duties and responsibilities of trustees of schemes and codes of practice on specific aspects of their responsibilities;

(d) to encourage the provision of appropriate training facilities for trustees of schemes;

(e) to advise the Minister on standards for trustees of schemes and on their implementation;

(f) to publish an annual report and such other reports as it may from time to time consider necessary;

(g) to perform such tasks as the Minister may from time to time request.

(2) The Board shall have such powers as are necessary for or incidental to the performance of its functions.

11 Conferral of additional functions on Board.

11.—(1) The Minister may, with the consent of the Minister for Finance, by order—

(a) confer on the Board such additional functions connected with the functions for the time being of the Board as he considers appropriate, and

(b) make such provision as he considers necessary or expedient in relation to matters ancillary to or arising out of the conferral on the Board of functions so conferred.

(2) The Minister may by order amend or revoke an order under this section (including an order under this subsection).

(3) Every order made by the Minister 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 order is passed by either such House within the next 21 days on which the House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

12 Consultants and advisers.

12.—Subject to the prior approval of the Minister, the Board may from time to time engage such consultants or advisers as it may consider necessary for the performance of its functions, and any fees due to a consultant or adviser engaged under this section shall be paid by the Board out of moneys at its disposal.

13 Gifts.

13.—(1) The Board may accept gifts of money, land or other property upon such trusts or conditions (if any) as may be specified by the donor.

(2) The Board shall not accept a gift if the trusts or conditions attached to it would be inconsistent with its functions.

14 Committees of Board.

14.—(1) The Board may establish committees to assist and advise it in relation to the performance of any of its functions.

(2) The members of a committee established under this section shall be appointed by the Board.

(3) A committee established under this section may include persons who are not members of the Board.

(4) A member of a committee established under this section may be removed from office at any time by the Board.

(5) The Board may at any time dissolve a committee established under this section.

(6) The Board may appoint a person to be chairman of a committee established under this section.

(7) There may be paid out of the income of the Board to members of a committee established under this section such allowances for expenses incurred by them as the Board may, with the consent of the Minister and the Minister for Finance, determine.

15 Chief executive.

15.—(1) There shall be a chief officer of the Board who shall be known, and is referred to in this Act, as the chief executive.

(2) The chief executive shall be appointed, and may be removed from office at any time, by the Board with the consent of the Minister.

(3) The chief executive shall not be a member of the Board.

(4) The chief executive shall carry on and manage and control generally the administration and business of the Board and perform such other functions as may be determined by the Board.

(5) The chief executive shall devote the whole of his time to his duties as chief executive and shall not hold any other office or position without the consent of the Board.

(6) The chief executive shall hold office on and subject to such terms and conditions (including terms and conditions relating to remuneration) as may be approved of by the Minister with the consent of the Minister for Finance.

(7) The chief executive shall be paid, out of moneys at the disposal of the Board, such allowances for expenses incurred by him in the performance of his functions as may be determined by the Minister with the consent of the Minister for Finance.

(8) The chief executive may make proposals to the Board on any matter relating to its activities.

16 Staff of Board.

16.—(1) The Board may appoint such, and such number of, persons to be members of the staff of the Board as it may determine with the consent of the Minister and the Minister for Finance.

(2) (a) A member of the staff of the Board shall hold his office or employment on such terms and conditions (including terms and conditions relating to remuneration and superannuation) as the Board may, with the consent of the Minister and the Minister for Finance, determine.

(b) A member of the staff of the Board referred to in paragraph (a) shall be paid, out of the moneys at the disposal of the Board, such remuneration and allowances for expenses incurred by him as the Board may, with the consent of the Minister and the Minister for Finance, determine.

(c) The Board may, with the consent of the Minister, at any time remove any officer or servant of the Board from being its officer or servant.

(3) The grades of the staff of the Board, and the number of staff in each grade, shall be determined by the Board with the consent of the Minister and the Minister for Finance.

(4) The Board may perform any of its functions through or by the chief executive or any other member of its staff duly authorised by the Board in that behalf.

17 Superannuation of staff of Board.