PART III

Preservation of Benefits

27. —(1) In this Part and the Second Schedule , except where the context otherwise requires—

“qualifying service”, in relation to a member of a scheme, means the aggregate of every period of reckonable service, whether or not continuous in each case, under—

(a) the scheme,

(b) every other scheme relating to the same employment,

(c) every other scheme relating to any other employment in respect of which rights to long service benefit have been granted under the scheme in substitution for accrued rights under such other scheme:

Provided that no such period, or part thereof, shall be counted more than once;

“transfer payment” has the meaning assigned to it by section 34 (2).

(2) Where the rate or amount of part of the long service benefit payable under a defined benefit scheme is directly determined by an amount of contribution paid by or in respect of the member, then, for the purposes of this Part and the Second Schedule , the scheme in so far as it relates to such part of the long service benefit shall be treated as a defined contribution scheme and, in so far as it relates to other benefits (including the remaining part of the long service benefit) shall be treated as a defined benefit scheme.

(3) References in this Part and the Second Schedule to a defined contribution scheme or a defined benefit scheme shall be construed as including references to a part of such scheme.

28. —(1) Subject to section 37 , this Part and the Second Schedule shall apply to any member of a scheme who has service in relevant employment after the commencement of this Part.

(2) A member of a scheme whose service in relevant employment terminates otherwise than on death after the commencement of this Part but before normal pensionable age and who has completed at least 5 years' qualifying service of which at least 2 such years fall after the commencement of this Part, shall be entitled to a benefit (in this Act referred to as a “preserved benefit”).

29. —(1) In this section—

“contingent pension” has the meaning assigned to it by subsection (5);

“scheme” means a defined benefit scheme.

(2) A preserved benefit shall be provided under a scheme only in respect of—

(a) a long service benefit, or

(b) where, by the exercise of an option under subsection (5), the trustees so determine, a contingent pension.

(3) A preserved benefit shall be calculated in accordance with Part A of the Second Schedule .

(4) Subject to subsection (5), on the death of a member of a scheme who is entitled to a preserved benefit under the scheme before such benefit commences to be payable, an amount shall be payable under the scheme to his personal representative in respect thereof equal to the actuarial value of the preserved benefit (including any preserved benefit under subsections (6) and (7) immediately before the death of the member concerned.

(5) (a) Where a scheme provides for a pension payable to, or for, either or both the widowed spouse or any dependants of the member concerned in the event of that member's death while in relevant employment prior to his attaining normal pensionable age (in this section referred to as “a contingent pension”) the trustees of the scheme may, in lieu of the benefit specified in subsection (4), provide under the scheme a contingent pension calculated in accordance with paragraph 1 of Part A of the Second Schedule and such benefit shall be deemed to form part of that member's preserved benefit.

(b) For the purposes of paragraph (a), references in paragraph 1 of Part A of the Second Schedule to long service benefit shall be construed as references to a contingent pension within the meaning of this section.

(6) Where a member of a scheme is entitled to additional long service benefit under the scheme by virtue of the payment of additional voluntary contributions, a preserved benefit in respect of such benefit shall be calculated in accordance with paragraph 3 of Part A of the Second Schedule and shall be provided in addition to the preserved benefit under subsection (2):

Provided that if the member has received a refund of any such contributions paid by him during any period of reckonable service prior to the commencement of this Part, then, in calculating the amount of any preserved benefit under this subsection, any period of reckonable service prior to the commencement of this Part shall be disregarded.

(7) Where additional long service benefit has been granted under a scheme to a member in respect of a transfer of accrued rights from another scheme, that benefit shall be provided in addition to the preserved benefit under subsection (2):

Provided that if the member has received a refund of the contributions paid by him to the other scheme prior to the commencement of this Part which were included in the rights transferred from the other scheme then, in calculating the amount of any preserved benefit under this subsection, any additional long service benefit accrued under that other scheme prior to the commencement of this Part, shall be disregarded.

30. —(1) In this section—

“appropriate contributions” shall be construed in accordance with subsections (4), (5) and (6);

“scheme” means a defined contribution scheme.

(2) A preserved benefit shall be provided under a scheme and it shall be such that its actuarial value at the date on which payment of it commences is equal to the accumulated value on that date of the appropriate contributions in respect of the member concerned under the scheme.

(3) On the death of a member of a scheme who is entitled to a preserved benefit before such benefit commences to be payable, an amount shall be payable under the scheme to his personal representative in respect thereof equal to the accumulated value of the appropriate contributions under the scheme in respect of the member immediately before his death.

(4) Subject to subsections (5) and (6), the appropriate contributions shall be the contributions paid by or in respect of the member concerned for the purposes of long service benefit from the commencement of this Part, or, if later, the date of the commencement of the relevant employment, but excluding additional voluntary contributions and any payment representing a transfer of accrued rights from another scheme.

(5) Where a member of a scheme is entitled to additional long service benefit under the scheme by virtue of the payment of additional voluntary contributions, the appropriate contributions shall be all such contributions:

Provided that if the member has received a refund of any such contributions paid by him prior to the commencement of this Part, the appropriate contributions shall be the contributions paid by him from the commencement of this Part.

(6) Where additional long service benefit has been granted under a scheme to a member in respect of a transfer of accrued rights from another scheme, the appropriate contributions shall be the amount of the payment received by the trustees of the scheme in respect of such accrued rights:

Provided that if the member has received a refund of contributions paid by him, prior to the commencement of this Part, under that scheme which were included in the rights transferred, the appropriate contributions shall be the portion of the payment received by the trustees which represented rights accrued after such commencement.

(7) Where benefits under a scheme are secured under one or more policies of assurance, the accumulated value, on the date on which payment of preserved benefit commences, of the appropriate contributions paid by or on behalf of a member shall, for the purposes of this Part, be the proportion of the proceeds of every such policy applicable to those contributions.

31. —(1) A preserved benefit shall be payable out of the resources of the scheme.

(2) Except as provided for in this Part, a preserved benefit shall be payable in accordance with, and subject to, the rules of the scheme being the rules as at the date of the termination of the relevant employment.

32. —A member of a scheme who is entitled to preserved benefit under the scheme in accordance with the provisions of this Part shall not be entitled to receive a refund of any contributions paid to that scheme after the commencement of this Part.

33. —(1) In this section and Part B of the Second Schedule “revaluation year” means a year beginning not less than 5 years after the commencement of this Part.

(2) Where in respect of any preserved benefit payable under a defined benefit scheme to or in respect of a member and calculated in accordance with paragraph 1 or 3 or both of Part A of the Second Schedule , there is a period of at least one year between—

(a) the commencement of the first revaluation year or the date of the termination of the member's relevant employment, whichever is the later, and

(b) the date on which he attains or would attain normal pensionable age or the date of his death, whichever is the earlier,

then, the preserved benefit shall be revalued annually as soon as may be after the end of each revaluation year in accordance with the provisions of Part B of that Schedule.

(3) A revaluation shall not be made under this section in respect of a member of a scheme after—

(a) the date of payment of preserved benefit to or in respect of him, or

(b) the date of his attainment of normal pensionable age, or

(c) the date of his death,

whichever is the earliest.

(4) The Minister, after consultation with the Minister for Finance, shall, in respect of each revaluation year, prescribe the percentage (in this Act referred to as “the revaluation percentage”) by which the preserved benefit is to be increased by the revaluation thereof under this section for that year.

(5) The percentage prescribed under subsection (4) in respect of a revaluation year shall be—

(a) the percentage that equals the increase in the general level of consumer prices during that year calculated by the Minister in such manner as he thinks appropriate, or

(b) 4 per cent,

whichever is the lesser.

(6) The Minister may by regulations vary the percentage specified in subsection (5) (b), but any such variation shall not apply in the case of preserved benefit the entitlement to which arises before the date of the making of the regulations concerned.

(7) Where, in the opinion of the Minister, no increase in the general level of consumer prices occurred during a revaluation year, he shall not prescribe a percentage under subsection (4) in relation to that year and the revaluation of any preserved benefit that, but for this subsection, would fall to be made as soon as may be after the end of that year shall not be made.

34. —(1) This section shall apply to a member of a funded scheme who is entitled to a preserved benefit under this Part.

(2) A member of a scheme to whom this section applies shall be entitled to the transfer of an e (in this Part referred to as a “transfer payment”) in accordance with subsection (3) equal—

(a) in the case of a defined benefit scheme, to the actuarial value of the preserved benefit on the date on which the relevant application under subsection (3) is received by the trustees, and

(b) in the case of a defined contribution scheme, to the accumulated value on that date of the appropriate contributions under the scheme in respect of the member:

Provided that where benefits under such a scheme are secured under one or more policies of assurance, the accumulated value of the appropriate contributions shall be the proportion of the proceeds of every such policy applicable to those contributions.

(3) A member of a scheme who is entitled to a transfer payment under subsection (2) may exercise such right by making an application in writing to the trustees of the scheme providing them with such information as they may reasonably require and directing them to apply the transfer payment—

(a) in the making of a payment to another scheme, or

(b) in the making of one or more payments falling to be made under policies or contracts of assurance that are effected on behalf of the member with one or more undertakings (within the meaning of the Insurance Act, 1989 ) and that are approved of by the Revenue Commissioners under Chapter II of Part I of the Finance Act, 1972 .

(4) Where the trustees of a scheme receive an application under subsection (3), they shall apply the transfer payment concerned, within the period of 3 months following the date of the receipt of the application, in the manner directed by the application under subsection (3).

(5) Where—

(a) a person has exercised the entitlement conferred on him under subsection (2), and

(b) the trustees of the scheme from which the transfer payment is being made have complied with the provisions of subsection (4),

then, they shall be discharged from any obligation to provide benefits to which the transfer payment relates.

(6) Where a member of a scheme directs the application of a transfer payment in accordance with subsection (3) (a), the trustees of the scheme to which the transfer payment is being made shall accept such payment and shall provide benefits of an actuarial value that is equivalent to the amount of the transfer payment in such form as they may determine.

(7) A member of a scheme shall not be entitled to a transfer payment under this section if—

(a) payment of his preserved benefit has commenced, or

(b) he fails to exercise the entitlement within a period of 2 years (or such longer period as may be provided for by the scheme or determined by the trustees of the scheme) after the date of the termination of the relevant employment concerned.

35. —(1) Notwithstanding anything contained in section 34 , the trustees of a scheme may, in such circumstances as may be prescribed, instead of providing a preserved benefit out of the resources of the scheme, effect, without the consent of the member concerned, a transfer payment from the scheme by making one or more payments referred to in section 34 (3) (b).

(2) Where the trustees of a scheme have effected a transfer payment in accordance with subsection (1) they shall be discharged from any obligation to provide benefits to which the transfer payment relates.

36. —Any provision of a scheme—

(a) providing for the forfeiture of a preserved benefit, or

(b) enabling the employer of a member to exercise a lien on the member's preserved benefit,

shall be disregarded for the purpose of this Part.

37. —(1) Where the Minister is of the opinion that the benefits provided under schemes or categories of schemes during a period that the Minister considers to be of reasonable length for the purposes of this subsection are no less favourable to the members concerned than those required by this Act to be provided under the schemes or categories of schemes, he may by regulations made with the consent of the Minister for Finance exclude those schemes or categories of schemes from the application of this Part and the Second Schedule .

(2) Where the Minister considers that it would be unreasonable, having regard to their nature and character, and would be contrary to the interests of their members, to require specified schemes or categories of schemes to comply fully with specified provisions of this Part and the Second Schedule , he may by regulations made with the consent of the Minister for Finance provide that those provisions shall apply in relation to those schemes or categories of schemes with specified modifications, being modifications that in the opinion of the Minister are reasonable and do not materially alter those provisions.

(3) Where the Minister so provides by regulations, then notwithstanding anything in this Part, in the cases specified in the regulations—

(a) a period of a person's reckonable service under a scheme in different employments may be treated for the purposes of this Part as a period of reckonable service under the scheme in such one or more of those employments as may be specified;

(b) a person's reckonable service in any employment may be treated in the case of interruption of such employment as terminated or not terminated.

(4) The Minister may by regulations specify the method of calculating preserved benefit payable under schemes and for such adjustments of the amounts of such benefit as may be necessary to facilitate its computation.

38. —(1) The provisions of this Part, of any regulations made there under and of the Second Schedule shall override any rule of a scheme to the extent that that rule conflicts with those provisions.

(2) Any question as to—

(a) whether any provision of this Part (including the application of any provision as modified by regulations), any regulations made thereunder or the Second Schedule conflicts with any rule of a scheme, or

(b) whether a scheme is a defined benefit scheme or a defined contribution scheme for the purposes of this Part,

shall be determined by the Board on application to it in writing in that behalf by a person specified in subsection (3).

(3) The following persons shall be entitled to make an application under subsection (2) in respect of a scheme:

(a) the trustees of the scheme;

(b) any person who is an employer of persons in relevant employment to which the scheme applies;

(c) any member or prospective member of the scheme;

(d) such other persons (if any) as may be prescribed, being persons who, in the opinion of the Minister, ought to be entitled to make such an application.

(4) An appeal to the High Court on a point of law from a determination of the Board under subsection (2) in relation to a scheme, may be brought by the person who made or a person who was entitled to make the application concerned under subsection (2).

39. —Nothing in the other provisions of this Part or in the Second Schedule shall be construed as precluding a scheme from providing benefits, in lieu of preserved benefit, on a higher scale, or payable at any earlier time or otherwise more favourably than is provided for under this Part:

Provided that—

(a) such benefits are of an actuarial value that is equivalent to or greater than that of preserved benefit,

(b) on the death of a member before any such benefit commences to be payable the amount thereof shall not be less than the amount that would, but for this section, have been payable by virtue of section 29 (4) or 30 (3), as appropriate,

(c) a member who is entitled to preserved benefit under this Part shall not be entitled to receive a refund of any contributions paid to the scheme after the commencement of this Part.