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14 2009

Financial Measures (Miscellaneous Provisions) Act 2009

PART 3

Transfer of Assets of Certain Pension Funds to National Pensions Reserve Fund

Interpretation (Part 3).

3 .— (1) In this Part:

“Act of 1990” means the Pensions Act 1990 ;

“Act of 2000” means the National Pensions Reserve Fund Act 2000 ;

“ additional voluntary contributions” has the same meaning as in the Act of 1990;

“ assets” shall be construed in accordance with subsection (2);

“ benefits” includes pensions, gratuities and any other allowances payable under a relevant pension scheme;

“ the Commission” means the National Pensions Reserve Fund Commission;

“ covered other pension fund” means a pension fund referred to in column A of Part 2 of Schedule 1 ;

“ covered pension fund” means a covered other pension fund or a covered university pension fund;

“ covered university pension fund” means a pension fund referred to in column A of Part 1 of Schedule 1 ;

“ relevant body” , in relation to a covered pension fund and the relevant pension scheme for the fund, means the body specified for the relevant covered pension fund in column B of the relevant item in Schedule 1 ;

“ relevant Minister” means—

(a) in relation to a covered university pension fund and its relevant pension scheme, the Minister for Education and Science, or

(b) in relation to a covered other pension fund and its relevant pension scheme, the Minister specified for the fund in column C of the relevant item in Part 2 of Schedule 1 ;

“relevant pension scheme”, in relation to a covered pension fund, has the meaning given by section 4 ;

“Reserve Fund” means the National Pensions Reserve Fund established by the Act of 2000;

“transfer order” means an order made under section 5 (1);

“ university pension scheme” means the relevant pension scheme in relation to a covered university pension fund.

(2) A reference in this Part to the assets of a fund is a reference to—

(a) in the case of a fund that is established as a trust, the assets subject to the trust, and

(b) in the case of a covered pension fund that is not established as a trust, the assets held by the relevant body concerned for the purposes of the fund,

but does not include any assets identified by the fund as being held for the purposes of a defined contribution scheme (within the meaning of the Act of 1990) financed by additional voluntary contributions.

References to “relevant pension scheme”.

4 .— (1) In this Part, a reference to the relevant pension scheme in relation to a covered pension fund is a reference—

(a) if no transfer order has been made in relation to the fund, to the pension scheme for the purposes of which the fund was established, or

(b) if a transfer order has been made in relation to the fund, to the pension scheme contained in the instruments or provisions specified for that purpose in the order.

(2) On and after the date of effect of a transfer order in relation to a covered pension fund, the provisions of that order that specify the instruments or provisions that contain the relevant pension scheme are conclusive as to those instruments or provisions.

Transfer orders.

5 .— (1) The Minister for Finance where that Minister is the relevant Minister in relation to a covered pension fund, and in any other case the relevant Minister in relation to the covered pension fund concerned acting with the consent of the Minister for Finance, may make a transfer order in relation to the fund.

(2) Before making a transfer order in relation to a covered pension fund the relevant Minister shall consult—

(a) in the case of a fund that is constituted as a trust, the trustees of that trust, and

(b) the board of directors or other governing body of the relevant body for the fund,

to the extent that he or she considers necessary or reasonable in the circumstances.

(3) Consultation that took place before the passing of this Act with the persons concerned satisfies the obligation in subsection (2).

(4) A transfer order—

(a) shall specify its date of effect,

(b) shall either set out a list of the instruments or provisions that contain the relevant pension scheme, or contain some other appropriate means of identifying those instruments or provisions, and

(c) may make any provision necessary to give effect to the transfer of assets under the order.

(5) In subsection (4) “ instrument ” includes a trust deed, a university statute and a college statute.

(6) Notice of the making of a transfer order shall be published as soon as practicable in Iris Oifigiúil.

(7) A transfer order shall be laid before each House of the Oireachtas as soon as may be after it is made.

Effect of transfer order on assets of funds.

6 .— (1) On the date of effect of a transfer order in relation to a covered pension fund, the assets of the fund are by virtue of this section transferred to the Reserve Fund, and thereafter form part of the assets of that Fund.

(2) On the date of effect of a transfer order in relation to a covered pension fund—

(a) any trust in relation to the assets of the fund is terminated,

(b) the trustees under any such trust cease to be trustees, and cease to be liable as trustees for anything done in relation to that fund on or after the date of effect,

(c) the relevant body ceases to be liable in relation to the fund for anything done on or after the date of effect, and

(d) the provisions of any trust deed, university statute, college statute or other instrument or instruments (other than provisions specified in the transfer order as setting out part of the relevant pension scheme) constituting the fund cease to have effect.

(3) If a trust deed in relation to a covered pension fund contains any provision to the effect that the relevant pension scheme ceases to operate on the termination of the trust, then the provision is of no effect to the extent that it so provides.

Relevant pension scheme to continue after making of transfer order.

7 .— (1) Where a transfer order has been made in relation to a covered pension fund, the relevant pension scheme continues to operate, subject to this Part, on and after the coming into effect of the order.

(2) If before the making of a transfer order in relation to a covered pension fund the board of directors or other governing body of the relevant body concerned were not the administrators of the relevant covered pension scheme, on the date of effect of the order that board of directors or other governing body becomes the administrators of the scheme.

(3) The persons who were members, immediately before the making of a transfer order in relation to a covered pension fund, of the relevant pension scheme continue, on and after the coming into effect of the order, to be members of the scheme. For all purposes each such member’s membership of the scheme is to be taken to have been uninterrupted.

Transfer of assets under transfer order.

8 .— (1) The transfer of an asset under a transfer order is not subject to any form of taxation.

(2) Any instrument necessary to give full effect to or record a transfer of an asset under a transfer order is not subject to stamp duty.

Application of certain other Acts.

9 .— (1) A transfer order has effect for the purposes of this Part notwithstanding anything in the Act of 1990.

(2) The Act of 1990 continues to apply to a relevant pension scheme after the date of effect of a transfer order in relation to the covered pension fund concerned to the same extent as that Act applied to the scheme before that date.

(3) Notwithstanding section 6(1)(c) (as amended by section 3 (b) of the Investment of the National Pensions Reserve Fund and Miscellaneous Provisions Act 2009 ) of the Act of 2000, where assets transferred under a transfer order include securities issued under section 54 (1) of the Finance Act 1970 , the Commission may hold or dispose of those securities as it sees fit.

(4) Nothing in this Part affects the operation of section 25 (8) of the Universities Act 1997 so far as it relates to superannuation.

Value of assets transferred to be offset against contributions to Reserve Fund.

10 .— (1) Where a transfer order has been made in relation to a covered pension fund, the value of the assets transferred pursuant to the order shall be taken to be in satisfaction or part-satisfaction, as the case requires, of the obligation of the Minister for Finance under section 18(2) of the Act of 2000 to make contributions to the Reserve Fund in the current year.

(2) If the aggregate value of assets transferred to the Reserve Fund under transfer orders in a year, added to any contributions made to the Reserve Fund in the same year under subsections (2), (5A) and (5C) of section 18 (as amended by section 6 (c) of the Investment of the National Pensions Reserve Fund and Miscellaneous Provisions Act 2009 ) of the Act of 2000, is greater than the amount required to be paid into the Reserve Fund in that year under section 18(2) of the Act of 2000, the excess amount shall be taken to be in satisfaction or part-satisfaction, as the case requires, of the amount required under that section to be paid into that Fund in any subsequent year or years.

(3) For the purposes of subsections (1) and (2)

(a) as soon as practicable after a transfer order is made in relation to a covered pension fund, the trustees of the fund (or, where there is no trust deed, the board or governing body of the relevant body in relation to the fund) shall cause a valuation, on the same basis as a valuation of resources for the purpose of an actuarial valuation under Part IV of the Act of 1990, to be made of the assets of the fund as at the date of effect of the transfer order, and

(b) the Commission shall determine the value of the assets of the fund, as at the date of effect of the transfer order, in consultation with the Minister, having regard to that valuation.

Exercise of discretions under relevant pension scheme after making of transfer order.

11 .— (1) If before the coming into effect of a transfer order in relation to a covered pension fund a provision of the relevant pension scheme conferred a discretion in relation to one or more members’ rights or benefits, the provision continues in effect after the coming into effect of the order, but the discretion is to be exercised, where the Minister for Finance is the relevant Minister in relation to the scheme, by that Minister, and in any other case by the relevant Minister in relation to the scheme and the Minister for Finance acting jointly.

(2) After the coming into effect of a transfer order in relation to a covered pension fund, the Minister for Finance where that Minister is the relevant Minister in relation to the scheme, and in any other case the relevant Minister in relation to the scheme and the Minister for Finance acting jointly, may delegate, in writing, the exercise of a discretion referred to in subsection (1)

(a) in the case of a university pension scheme, to the Higher Education Authority or the governing body of the relevant body concerned, and

(b) in the case of any other relevant pension scheme, to the board of directors or other governing body of the relevant body concerned.

Continuation of scheme regarding obligations and benefits.

12 .— (1) After a transfer order has been made in relation to a covered pension fund, the relevant pension scheme has effect, in relation to the making of contributions by members and the employers concerned and in relation to benefits, in accordance with subsections (2) to (5).

(2) An obligation to make contributions referred to in subsection (1) has effect as an obligation—

(a) in the case of each member’s obligation to make contributions, to make those contributions to the relevant body concerned, or to permit the relevant body to withhold those contributions from salary, wages or other payments due, in each case at the same rate as immediately before the date of effect of the relevant transfer order, and

(b) in the case of an employer’s obligation to make contributions, to make those contributions at the same rate as immediately before the date of effect of the order,

to be paid into or disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance or otherwise paid or disposed of as that Minister may direct.

(3) After a transfer order has been made in relation to a covered pension fund, any right of members of the relevant pension scheme to make voluntary contributions (including contributions for any purchase of notional service and buyback of years, repayment of a marriage gratuity and a transfer value paid in to the benefit of the member, but not including additional voluntary contributions treated under the Act of 1990 as paid to a defined contribution scheme (within the meaning given by that Act), or contributions to a PRSA (within the meaning given by that Act)) to the scheme continues to have effect according to the terms of the scheme.

(4) As soon as practicable after the coming into effect of a transfer order in relation to a covered pension fund, the relevant body in relation to the relevant pension scheme shall set up, subject to the approval of the Minister for Finance where that Minister is the relevant Minister in relation to the scheme, and in any other case the relevant Minister in relation to the scheme and the Minister for Finance, an appropriate mechanism to account separately for contributions referred to in subsections (2) and (3).

(5) On and after the coming into effect of a transfer order in relation to a covered pension fund, the obligation to pay benefits in accordance with the relevant pension scheme becomes an obligation of the relevant body in relation to the scheme.

(6) If the aggregate of members and employers’ contributions paid to or withheld or retained by a relevant body under subsections (2) and (3) (being contributions that the Minister has directed the body to apply to the payment of benefits under the relevant pension scheme) are insufficient to meet the body’s obligations to pay those benefits in accordance with the scheme, the Minister for Finance shall make good the deficiency by payments to the relevant body from funds provided by the Oireachtas for the purpose.

Changes in rules of covered pension schemes.

13 .— (1) Section 25 (7) of the Universities Act 1997 and the Fifth Schedule to that Act continue to apply in relation to a relevant pension scheme that is a university pension scheme after a transfer order is made in relation to the relevant covered pension fund, but that section and Schedule are not to be taken to authorise the amendment of the order.

(2) On and from the passing of this Act, a relevant pension scheme (other than a relevant pension scheme to which subsection (1) applies) may be amended only with the approval of the Minister for Finance where that Minister is the relevant Minister in relation to the scheme, and in any other case the relevant Minister in relation to the scheme and the Minister for Finance.

Complaints and disputes.

14 .— (1) Nothing in this Part or in any transfer order affects the jurisdiction of the Pensions Ombudsman established by section 127 of the Act of 1990 to investigate and determine a complaint or dispute in relation to the relevant pension scheme.

(2) If a relevant pension scheme confers on a Minister the function of settling disputes by arbitration or otherwise, after the coming into effect of a transfer order in relation to the covered pension fund concerned that Minister continues to have that function.

(3) If procedures of the kind referred to in section 132 of the Act of 1990 have been established in relation to a relevant pension scheme, after the coming into effect of a transfer order in relation to the covered pension fund concerned those procedures continue to have effect.