AUTOMATIC ENROLMENT RETIREMENT SAVINGS SYSTEM ACT 2024

• (e) specify both a direction in paragraph (a), a requirement in paragraph (b) or (c), or both, and an award referred to in paragraph (d).

• (2) An award of compensation referred to in subsection (1)(d) shall be of such amount as the adjudication officer considers just and equitable having regard to all the circumstances but shall not exceed 4 weeks’ remuneration in respect of the employee’s employment calculated in such manner as may be prescribed.

• (3) A decision of the Labour Court under section 44 of the Act of 2015, on appeal from a decision of an adjudication officer to which this section applies, shall affirm, vary or set aside the decision.

• (4) In this section, in relation to cases where a person’s employment has ceased, references to an employer include references to a former employer, and references to an employee include references to a former employee.

• (5) In this section—

“employer”, in a case where emoluments are paid on behalf of another person, includes a reference to that other person;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

130. Amendment of Act of 2015

130. The Act of 2015 is amended—

• (a) in section 2, in the definition of “official body”—

• (i) in paragraph (n), by the substitution of “Authority,” for “Authority, or”, and

• (ii) by the insertion of the following paragraph after paragraph (n):

• “(na) An tÚdarás Náisiúnta um Uathrollú Coigiltis Scoir, or”,

• (b) in section 41(7)—

• (i) by the substitution in paragraph (i) of “dispute, and” for “dispute.”, and

• (ii) by the insertion of the following paragraph after paragraph (g):

• “(ga) in the case of a dispute relating to sections 127 and 128 of the Automatic Enrolment Retirement Savings Act 2024, it has been referred to the Director General after the expiration of the period of 6 months beginning on the day immediately following the date of the occurrence of the dispute,”,

• (c) in Schedule 1, by the insertion in Part 2 of the following paragraph after paragraph 20 (inserted by section 35 of the Protected Disclosures (Amendment) Act 2022):

“21. Sections 127 and 128 of the Automatic Enrolment Retirement Savings System Act 2024”,

• (d) in Schedule 5, by the insertion in Part 1 of the following paragraph after paragraph 30:

“31. Sections 127 and 128 of the Automatic Enrolment Retirement Savings System Act 2024”,

and

• (e) in Schedule 6—

• (i) by the insertion in Part 1 of the following paragraph after paragraph 40 (inserted by section 40(e) of the Work Life Balance and Miscellaneous Provisions Act 2023):

“41. Section 129 of the Automatic Enrolment Retirement Savings System Act 2024”,

and

• (ii) by the insertion in Part 2 of the following paragraph after paragraph 40 (inserted by section 40(e) of the Work Life Balance and Miscellaneous Provisions Act 2023):

“41. Section 129 of the Automatic Enrolment Retirement Savings System Act 2024”.

Chapter 5 Offences

131. Offences in relation to contributions

131. (1) An employer who—

• (a) fails to pay at or within a prescribed time any contribution which he or she is liable to pay under section 59, or

• (b) makes a deduction from the gross pay of an employee in respect of any contribution which the employer is liable under section 59 to pay and fails to pay at or within a prescribed time the contribution in respect of which the deduction was made,

is guilty of an offence.

• (2) An employer, or a servant or agent acting on behalf of the employer, who, for the purpose of evading or reducing the amount of an employer’s liability in respect of a contribution which the employer is liable to pay under section 59 and which he or she has not paid—

• (a) knowingly makes any statement or representation (whether written or verbal) which is to his or her knowledge false or misleading in any material respect, or knowingly conceals any material fact, or

• (b) produces or furnishes, or causes or knowingly allows to be produced or furnished, any document or information which he or she knows to be false in a material particular,

is guilty of an offence.

• (3) If an offence under subsection (1) is committed by an employer who pays emoluments on behalf of another person and the offence is proved to have been committed with the consent or connivance of that other person, that other person shall, as well as the employer, be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

• (4) Where an employer has been convicted under subsection (1) of the offence of failing to pay any contributions which he or she is liable under section 59 to pay, the employer is liable to pay to the Authority a sum equal to the amount which the employer has failed to pay and an interest rate calculated in accordance with section 138 and, on such conviction, if notice of the intention to do so has been served with the summons or warrant, evidence may be given of the failure on the part of the employer to pay other contributions in respect of the same person during the 3 years immediately before the date when the notice was so served, and on proof of that failure the court may order the employer to pay to the Authority a sum equal to the total of all the contributions which the employer is so proved to have failed to pay and an interest rate calculated in accordance with section 138, and the employer’s right of appeal against the conviction under subsection (1) shall include a right to appeal against that order.

• (5) Where a person (referred to in this subsection as “the principal”) has been convicted of an offence under subsection (3) on proof that an offence by an employer under subsection (1), of failing to pay any contributions which the employer is liable under section 59 to pay, was committed with the consent or connivance of the principal, the principal is liable to pay to the Authority a sum equal to the amount which the employer has failed to pay and an interest rate calculated in accordance with section 138 and, on such conviction, if notice of the intention to do so has been served with the summons or warrant, evidence may be given of the failure on the part of the employer to pay other contributions in respect of the same person during the 3 years immediately before the date when the notice was so served, and on proof of that failure the court may order the principal to pay to the Authority a sum equal to the total of all the contributions which the employer is so proved to have failed to pay and an interest rate calculated in accordance with section 138, and the principal’s right of appeal against the conviction under subsection (3) shall include a right to appeal against that order.

• (6) Where a sum is payable under subsection (4) and subsection (5) in respect of the same unpaid contributions, the sum may be recovered under either (but not both) of those subsections.

• (7) Any sum paid under subsection (4) or (5) shall be treated as a payment in satisfaction of the unpaid contributions, and those contributions shall not be recoverable by any person from the employee.

132. Offences and penalties

132. (1) A person guilty of an offence under section 24(3), 50(8), 53(9), 128 or 131 shall be liable on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months or both.

• (2) A person guilty of an offence under section 122(5), 123(9) or 140 shall be liable—

• (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months or both, or

• (b) on conviction on indictment, to a fine not exceeding€50,000 or imprisonment for a term not exceeding 3 years or both.

• (3) 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 any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any 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 or she were guilty of the first-mentioned offence.

• (4) Where the affairs of a body corporate are managed by its members, subsection (3) applies in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

133. Summary proceedings

133. Summary proceedings for an offence under this Act may be brought and prosecuted by the Authority.

134. Costs

134. Where a person is convicted of an offence under this Act the court shall order the person to pay to the Authority the costs and expenses, measured by the court, incurred by the Authority in relation to the investigation, detection and prosecution of the offence unless the court is satisfied that there are special and substantial reasons for not so doing.

135. Time limit for instituting summary proceedings

135. Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under this Act may be instituted at any time within three years from the date on which the offence was alleged to have been committed.

136. Admissibility of certain documents in proceedings for offence

136. (1) In proceedings for an offence under this Act—

• (a) a payroll document, or a document that purports to be a payroll document, shall be admissible as evidence of the matters specified in the document,

• (b) a document (other than a payroll document) prepared or kept in the ordinary course of business, or that purports to have been prepared or kept in the ordinary course of business, by a person who had, or may reasonably be considered to have had, personal knowledge of the matters specified in the document shall be admissible as evidence of the matters specified in the document, and

• (c) a document that purports to be a reproduction in legible form of a document to which paragraph (a) or (b) applies stored in non-legible form shall be admissible as evidence of the matters specified therein, if the court before which the proceedings have been brought is satisfied that it was reproduced in the course of the normal operation of the reproduction system concerned.

• (2) Subsection (1)(b) and subsection (1)(c) (in so far as it relates to a document to which subsection (1)(b) applies) shall not apply to a document—

• (a) containing information that is privileged from disclosure in proceedings for an offence,

• (b) prepared for the purposes, or in contemplation, of—

• (i) the investigation of any offence,

• (ii) an investigation or inquiry carried out pursuant to or under any enactment,

• (iii) any proceedings whether civil or criminal, or

• (iv) proceedings of a disciplinary nature,

or

• (c) prepared after the alleged commission of the offence concerned.

• (3) Nothing in this section shall operate to render inadmissible in proceedings for an offence any document as evidence of any matter specified therein, that is so admissible by virtue of any rule of law or enactment other than this Act.

• (4) In this section—

“business” includes any trade, profession or other occupation carried on—

• (a) for reward or otherwise, and

• (b) either in the State or outside the State;

“employer”, in a case where emoluments are paid on behalf of another person, includes a reference to that other person;

“payroll document” means a payslip, payroll ledger, book of account or other document prepared or kept by or on behalf of an employer in respect of one or more than one of his or her employees that contains a record of payments or deductions made by, or on behalf of, that employer in respect of the employee or employees concerned.

137. Presumptions in proceedings for offence

137. (1) In proceedings for an offence under this Act, it shall be presumed, unless the contrary is shown, that a payroll document referred to in section 136 found on the premises of any employer relates to an employee of that employer.

• (2) Where a document is retrieved from an electronic storage and retrieval system, it shall be presumed, unless the contrary is shown, that the person who ordinarily uses that system is the author of the document.

• (3) In this section—

• (a) “employer” has the same meaning as in section 136, and

• (b) in relation to cases where a person’s employment has ceased, references to an employer include references to a former employer, and references to an employee include references to a former employee.

Chapter 6 Miscellaneous

138. Interest on arrears of contributions

138. (1) Any contribution payable by an employer shall carry interest from the date when the contribution becomes due and payable until payment and the amount of that interest shall be determined in accordance with subsection (2).

• (2) The interest referred to in subsection (1) shall be determined by the following formula—

C x D x P

where—

C is the contribution due and payable which remains unpaid,

D is the number of days (including part of a day) during which the contribution remains unpaid, and

P is the rate of interest payable at a daily rate of 0.0274 per cent.

• (3) The interest payable under this section shall be—

• (a) payable without any deduction of income tax and shall not be allowed as a deduction in computing any income, profits or losses for any of the purposes of the Tax Acts, and

• (b) deemed to be a debt due to the Authority and shall be payable to the Authority.

• (4) In proceedings under this section—

• (a) a certificate signed by an authorised officer certifying that a stated amount of interest is due and payable by the person against whom the proceedings were instituted shall be evidence until the contrary is proven that that amount is so due and payable, and

• (b) a certificate so certifying and purporting to be signed as specified in this subsection may be tendered in evidence without proof and shall be deemed until the contrary is proved to have been signed by an authorised officer.

• (5) In this section, “Tax Acts” has the same meaning that it has in section 1(2) of the Taxes Consolidation Act 1997.

139. Court may order employer or employee to pay arrears of contributions

139. (1) The Authority may apply to the court for an order requiring an employer or an employee to pay arrears of contributions.

• (2) An application under subsection (1) to the District Court shall be to a judge of the District Court for the time being assigned to the district court district within which the employer or employee, in respect of which the application under subsection (1) is made, is located.

• (3) An application under subsection (1) to the Circuit Court shall be to a judge of the Circuit Court for the circuit within which the employer or employee, in respect of which the application under subsection (1) is made, is located.

• (4) The court may make an order under subsection (1) if it is satisfied—

• (a) that any contributions payable to the Authority by an employer have become due and remain unpaid, or

• (b) that any participant contributions payable to the Authority by an employee have not been deducted by the employer from the gross pay of the employee and have not been paid to the Authority.

• (5) In making an order under this section, the court may make an order—

• (a) that any contribution payable in respect of an employee from a date specified by the court shall be paid to the Authority by the employer concerned,

• (b) that any participant contributions in respect of an employee from a date specified by the court shall be paid to the Authority by the employee concerned,

• (c) that the employee shall be treated as having been assigned an enrolment date or re-enrolment date (as the case may be) as of a date specified by the court, and

• (d) that interest is applied on the contributions payable to the Authority in accordance with section 138.

• (6) In this section, in relation to cases where a person’s employment has ceased, references to an employer include references to a former employer, and references to an employee include references to a former employee.

• (7) In this section—

• (a) “court” means—

• (i) the District Court,

• (ii) the Circuit Court, or

• (iii) the High Court,

and

• (b) “employer”, in a case where emoluments are paid on behalf of another person, includes, except in subsection (4), a reference to that other person.

140. Forgery of documents

140. (1) A person who forges, or utters knowing it to be forged, a notice, certificate or other document purporting to be issued, granted or given under this Act (in this section referred to as a “forged document”) is guilty of an offence.

• (2) A person who alters with intent to defraud or deceive, or utters knowing it to be so altered, a notice, certificate or other document issued, granted or given under this Act (in this section referred to as an “altered document”) is guilty of an offence.

• (3) A person who, without lawful authority, has in his or her possession a forged document or an altered document is guilty of an offence.

141. Recovery of moneys

141. The Authority may recover an amount due under sections 131, 138 and 139 as a simple contract debt in any court of competent jurisdiction from the person by whom it is payable.

Footnotes