S.I. No. 317/1991 - Social Welfare (Agreement With Canada on Social Security) Order, 1991.

S.I. No. 317 of 1991.

SOCIAL WELFARE (AGREEMENT WITH CANADA ON SOCIAL SECURITY) ORDER, 1991.

WHEREAS the arrangements in respect of matters relating to social security set out in the Agreement in the Schedule to this Order (hereinafter called "the Agreement") were made by the Government of Ireland with the Government of Canada;

AND WHEREAS it is provided in Article 22 of the Agreement that the Agreement will come into force on the first day of the second month following the month in which each Party to the Agreement shall have received from the other Party written notification that it has complied with all statutory and constitutional requirement's for entry into force of the Agreement;

AND WHEREAS the aforesaid written notification was received by each Party to the Agreement from the other Party to the Agreement during the month of November, 1991.

NOW THEREFORE the Minister for Social Welfare, in exercise of the powers conferred on him by Sections 3 and 307 of the Social Welfare (Consolidation) Act, 1981 (No. 1 of 1981), hereby makes the following Order:—

1. This Order may be cited as the Social Welfare (Agreement with Canada on Social Security) Order, 1991.

2. The Agreement shall come into force on the 1st day of January, 1992.

3. On and from the 1st day of January, 1992 the social Welfare Acts 1981 to 1991 and the regulations made under those Acts insofar as they relate to old age (contributory) pensions, retirement pensions, invalidity pensions, widows (contributory) pensions, orphans (contributory) allowance and death grant and the liability of a person employed outside the State to the payment of employment and self-employment contributions shall be modified to the extent necessary to take account of and give effect to the Agreement.

GIVEN under the Official Seal of the Minister for Social Welfare this

9th day of December, 1991.

BRENDAN DALY,

Minister for Social Welfare.

SCHEDULE.

Agreement on Social Security

between

Ireland and Canada.

______________

The Government of Ireland

and

the Government of Canada,

Resolved to co-operate in the field of social security,

Have decided to conclude an agreement for this purpose,

and

Have agreed as follows:

PART I.

GENERAL PROVISIONS

Article I.

Definitions.

1. For the purposes of this Agreement,

( a ) "Government of Canada" means the Government in its capacity as representative of Her Majesty the Queen in right of Canada and represented by the Minister of National Health and Welfare;

( b ) "legislation" means the laws and regulations specified in Article II;

( c ) "competent authority" means, as regards Canada, the Minister or Ministers responsible for the administration of the legislation of Canada; and, as regards Ireland, the Minister for Social Welfare;

( d ) "reckonable period" means a period of contributions or residence used to acquire the right to a benefit under the legislation of either Party; as regards Canada, it also means a period during which a disability pension is payable under the Canada Pension Plan; and, as regards Ireland, it also means a period in respect of which contributions have been treated as paid or credited or a period in respect of which contributions would have been paid but for the operation of the earnings ceiling;

( e ) "benefit" means, as regards Canada, any cash benefit, pension or allowance for which provision is made in the legislation of Canada; p and, as regards Ireland, any benefit under the legislation of Ireland specified in subparagraph 1 (b) of Article II; and, as regards either Party, unless otherwise provided in this Agreement, includes any increase or additional allowance applicable to a benefit;

( f ) "employed person" means, as regards Ireland, an employed contributor;

( g ) "self-employed person" means, as regards Ireland, a self-employed contributor.

2. Any term not defined in this Article has the meaning assigned to it in the applicable legislation.

Article II.

Legislation to Which the Agreement Applies.

1. This Agreement shall apply to the following legislation:

( a ) with respect to Canada:

(i) the Old Age Security Act and the regulations made thereunder, and

(ii) the Canada Pension Plan and the regulations made thereunder;

( b ) with respect to Ireland:

the Social Welfare Acts 1981 to 1990 and the regulations made thereunder to the extent that they provide for and apply to:

(i) old age (contributory) pension,

(ii) retirement pension,

(iii) widow's (contributory) pension,

(iv) invalidity pension,

(v) orphan's (contributory) allowance,

(vi) death grant and

(vii) the liability for the payment of employment and self-employment contributions.

2. This Agreement shall apply also to any legislation which amends, supplements, consolidates or supersedes the legislation specified in paragraph 1.

3. This Agreement shall apply to laws or regulations which extend the legislation of a Party to other categories of beneficiaries only if no objection on the part of that Party has been communicated to the other Party prior to the coming into force of such laws or regulations.

Article III.

Person to Whom the Agreement Applies

This Agreement shall apply to any person who is or who has been subject to the legislation of Canada or Ireland, and to the dependants and survivors of such a person within the meaning of the applicable legislation of either Party.

Article IV.

Equality of Treatment.

1. Any person who is or who has been subject to the legislation of a Party, and the dependants and survivors of such a person, shall be subject to the obligations of the legislation of the other Party and shall be eligible for the benefits of that legislation under the same conditions as citizens of the latter Party.

2. Paragraph (1) shall also apply to a citizen of the first Party who has never been subject to the legislation of that Party, and to the dependants and survivors of such a citizen.

Article V.

Export of Benefits.

Unless otherwise provided in this Agreement,

( a ) benefits payable under the legislation of one Party to any person described in Article III, including benefits payable by virtue of this Agreement, shall not be subject to any reduction, modification, suspension, cancellation or confiscation by reason only of the fact that the person resides in the territory of the other Party, and they shall be paid in the territory of the other Party; and

( b ) benefits payable under this Agreement to a person who is or who has been subject to the legislation of both Parties, or to the dependants or survivors of such a person, shall also be paid in the territory of a third State.

PART II.

PROVISIONS CONCERNING THE APPLICABLE LEGISLATION .

Article VI.

1. Subject to the following provisions of this Article,

( a ) an employed person who works in the territory of one Party shall, in respect of that work, be subject only to the legislation of that Party; and

( b ) a self-employed person who ordinarily resides in the territory of one Party and who works for his or her own account in the territory of the other Party or in the territories of both Parties shall, in respect of that work, be subject only to the legislation of the former Party.

2. An employed person who is subject to the legislation of one Party and who is assigned to work in the territory of the other Party for the same employer having a place of business in the territory of the former Party shall, in respect of such employment, be subject only to the legislation of the former Party for a period of 24 months. An extension of this period may however be agreed upon by the competent authorities of both Parties.

3. ( a ) Paragraph 2 shall apply to a person who is sent to work on an installation situated in the continental shelf area of a Party in connection with the exploration of the seabed and sub-soil of that area or the exploitation of its mineral resources, as though that installation were situated in the territory of that Party.

( b ) For the purposes of this Article, the continental shelf area of a Party includes every area beyond the territorial seas of that Party that, in accordance with international law and the laws of that Party, is an area in respect of which that Party may exercise rights with respect to the seabed and sub-soil and their natural resources.

4. A person who, but for this Agreement, would be subject to the legislation of both Parties in respect of employment as a member of the crew of a seagoing ship shall, in respect of that employment, be subject only to the legislation of Ireland if the ship is flying the Irish flag and only to the legislation of Canada in any other case.

5. ( a ) An employed person shall, in respect of the duties of a government employment performed in the territory of the other Party, be subject to the legislation of the latter Party only if he or she is a citizen thereof or ordinarily resides in its territory. In the latter case that person may, however, elect to be subject only to the legislation of the former Party if he or she is a citizen thereof. Article IV shall not apply to extend this right to a person who is not a citizen of the former Party.

( b ) The election referred to in subparagraph (a) shall be made by giving notice thereof within six months after the duties are undertaken or, if the employed person is already performing the duties at the date of the entry intoforce of this Agreement, within six months after that date.

( c ) The employer of a person referred to in this paragraph shall respect all the requirements prescribed for all other employers by the applicable legislation.

( d ) The provisions of this paragraph shall apply equally to a person employed by an Irish governmental agency.

6. The competent authorities of the Parties may, by common agreement, modify the application of the provisions of this Article with respect to any persons or categories of persons.

Article VII.

Definition of Certain Periods of Residence with Respect to the Legislation of Canada.

For the purpose of calculating benefits under the Old Age Security Act,

( a ) if a person is subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada during any period of residence in the territory of Ireland, that period shall be considered as a period of residence in Canada for that person as well as for that person's spouse and dependants who reside with him or her and who are not subject to the legislation of Ireland as an employed person or as a self-employed person; and

( b ) if a person is subject to the legislation of Ireland during any period of residence in the territory of Canada, that period shall not be considered as a period of residence in Canada for that person and for that person's spouse and dependants who reside with him or her and who are not subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada by reason of employment or self-employment.

PART III.

PROVISIONS CONCERNING BENEFITS.

CHAPTER 1.

TOTALIZING OF PERIODS.

Article VIII.

1. If a person is not entitled to the payment of a benefit because he or she has not completed sufficient reckonable periods under the legislation of one Party, entitlement to the payment of that benefit shall be determined by totalizing these periods and those specified in paragraphs 2, 3 and 4 of this Article, provided that the periods do not overlap.

(2) ( a ) For the purposes of determining entitlement to the payment of a benefit under the Old Age Security Act of Canada, a reckonable period under the legislation of Ireland or a period of residence in Ireland, after the age at which periods of residence in Canada may be considered under that Act, shall be considered as a period of residence in Canada.

( b ) For the purposes of determining entitlement to the payment of a benefit under the Canada Pension Plan, a calendar year in which at least 13 qualifying contributions have been recorded under the legislation of Ireland shall be considered as a year for which contributions have been made under the Canada Pension Plan.

3. For the purposes of determining the entitlement of a person for a benefit, other than a death grant, under the legislation of Ireland,

( a ) a week ending on or before December 31, 1965 which is a reckonable period under the Old Age Security Act of Canada shall be considered as a contribution week in respect of which the person has a qualifying contribution under the legislation of Ireland;

( b ) a year commencing on or after January 1, 1966 which is a reckonable period under the Canada Pension Plan shall be considered as a contribution year in respect of which the person has qualifying contributions in respect of 52 contribution weeks under the legislation of Ireland; and

( c ) a week commencing on or after January 1, 1966 which is a reckonable period under the Old Age Security Act of Canada and which is not part of a reckonable period under the Canada Pension Plan shall be considered as a contribution week in respect of which the person has a qualifying contribution under the legislation of Ireland.

4. For the purpose of determining the entitlement of a person for a death grant under the legislation of Ireland,

( a ) a year commencing on or after January 1, 1971 which is a reckonable period under the Canada Pension Plan shall be considered as a contribution year in respect of which the person has qualifying contributions in respect of 52 contribution weeks under the legislation of Ireland;

( b ) a week commencing on or after October 1, 1970 which is a reckonable period under the Old Age security Act of Canada and which is not part of a reckonable period under the Canada Pension Plan shall be considered as a contribution week in respect of which the person has a qualifying contribution under the legislation of Ireland; and

( c ) the period from October 1, 1970 to December 31, 1970 which is part of a reckonable period under the Canada Pension Plan shall be considered as a period in respect of which the person has 13 qualifying contributions under the legislation of Ireland.

Article IX.

1. If the total duration of the reckonable periods completed under the legislation of one Party is less than one year and if, taking into account only those periods, no right to a benefit exists under that legislation, the competent authority of that Party shall not be required to award benefits in respect of those periods by virtue of this Agreement.

2. These periods shall, however, be taken into consideration by the competent authority of the other Party to determine eligibility for benefits under the legislation of that Party through the application of Article VIII.

CHAPTER 2.

BENEFITS UNDER THE LEGISLATION OF CANADA.

Article X.

Benefits under the Old Age Security Act.

1. If a person is entitled to the payment of a pension or spouse's allowance solely through the application of the totalizing provisions of Chapter 1 of this Part, the competent authority of Canada shall calculate the amount of the pension or spouse's allowance payable to that person in conformity with the provisions of the Old Age Security Act governing the payment of a partial pension or a spouse's allowance, exclusively on the basis of the periods of residence in Canada which may be considered under that Act.

2. Paragraph 1 shall also apply to a person who is entitled to the payment of a pension in Canada but who has not resided in Canada for the minimum period required by the Old Age Security Act for entitlement to the payment of a pension outside Canada.

3. Notwithstanding any other provision of this Agreement,

( a ) the competent authority of Canada shall not be liable to pay an Old Age Security pension outside Canada unless the periods of residence in Canada and in Ireland, when totalized as provided in Chapter 1 of this Part, are at least equal to the minimum period of residence in Canada required by the Old Age Security Act for entitlement to the payment of a pension outside Canada; and

( b ) the spouse's allowance and the guaranteed income supplement shall be paid outside Canada only to the extent permitted by the Old Age Security Act.

Article XI.

Benefits under the Canada Pension Plan.

If a person is entitled to the payment of a benefit solely through the application of the totalizing provisions of Chapter 1 of this Part, the competent authority of Canada shall calculate the amount of benefit payable in the following manner:

( a ) the earnings-related portion of such benefit shall be determined in conformity with the provisions of the Canada Pension Plan, exclusively on the basis of the pensionable earnings under that Plan; and

( b ) the flat-rate portion of the benefit shall be determined by multiplying:

(i) the amount of the flat-rate portion of the benefit determined in conformity with the provisions of the Canada Pension Plan

by

(ii) the fraction which represents the ratio of the periods of contributions under the Canada Pension Plan in relation to the minimum qualifying period required under that Plan to establish entitlement to that benefit, but in no case shall that fraction exceed the value of one.

CHAPTER 3.

BENEFITS UNDER THE LEGISLATION OF IRELAND.

ARTICLE XII.

1. If a person is not entitled to an Irish benefit under the legislation of Ireland alone and the totalisation provisions of this Agreement are invoked, the person's entitlement to benefit shall be determined by the competent authority of Ireland on the basis of the totalised periods in accordance with the relevant statutory contribution conditions provided for under the legislation of Ireland and the aforesaid competent authority shall calculate the amount of Irish benefit, other than death grant and orphan's (contributory) allowance in accordance with the following formula:

( a ) the amount of the theoretical benefit, exclusive of any increase or additional allowance other than an increase for an adult dependant, which would be payable if all the periods reckonable under the legislation of both Parties had been completed under its own legislation and

( b ) the proportion of such theoretical benefit which bears the same relation to the whole as the total of the reckonable periods completed under the legislation of Ireland bears to the total of reckonable periods completed under the legislation of both Parties.

The proportionate amount thus calculated shall be the rate of benefit payable to that person by the competent authority of Ireland.

2. In the case of death grant and orphan's (contributory) allowance, entitlement to benefit and the amount of benefit payable shall be calculated in accordance with the relevant contribution conditions under the legislation of Ireland taking account of the provisions in Article VIII (4) in the case of a death grant.

3. For the purposes of applying the foregoing paragraphs:

( a ) where a compulsory or voluntary insurance period completed under the legislation of Ireland coincides with a reckonable period under the legislation of Canada, only the insurance period under the legislation of Ireland shall be taken into account; and

( b ) where a period in respect of which contributions have been credited under the legislation of Ireland coincides with a reckonable period under the legislation of Canada, the insurance period under the legislation of Ireland shall not be taken into account.

4. Any period of continuous incapacity for work which occurs while the person is resident in Canada shall be deemed to be a period of continuous incapacity for work under the legislation of Ireland for the purposes of determining if a person is permanently incapable of work.

PART IV.

ADMINISTRATIVE AND MISCELLANEOUS PROVISIONS.

Article XIII.

1. The competent authorities responsible for the application of this Agreement:

( a ) shall, to the extent permitted by the legislation which they administer, communicate to each other any information necessary for the application of this Agreement;

( b ) shall lend their good offices and furnish assistance to one another with regard to the determination or payment of any benefit under this Agreement or the legislation to which this Agreement applies as if the matter involved the application of their own legislation; and

( c ) shall communicate to each other, as soon as possible, all information about the measures taken by them for the application of this Agreement or about changes in their respective legislation insofar as these changes affect the application of this Agreement.

2. The assistance referred to in subparagraph 1 (b) shall be provided free of charge, subject to any agreement reached between the competent authorities of the Parties for the reimbursement of certain types of expenses.

3. Unless disclosure is required under the laws of a Party, any information about an individual which is transmitted in accordance with this Agreement to that Party by the other Party shall be confidential and shall be used only for purposes of implementing this Agreement and the legislation to which this Agreement applies.

Article XIV.

1. The competent authorities of the Parties shall establish, by means of an administrative arrangement, the measures necessary for the application of this Agreement.

2. The liaison agencies of the Parties shall be designated in that arrangement.

Article XV.

1. Any exemption from or reduction of taxes, legal dues, consular fees or administrative charges for which provision is made in the legislation of one Party in connection with the issuing of any certificate or document required to be produced for the application of that legislation shall be extended to certificates or documents required to be produced for the application of the legislation of the other Party.

2. Any acts or documents of an official nature required to be produced for the application of this Agreement shall be exempt from any authentication by diplomatic or consular authorities and similar formalities.

Article XVI.

For the application of this Agreement, the competent authorities of the Parties may communicate directly with one another in any of the official languages of either Party.

Article XVII.

1. Any claim, notice or appeal concerning the determination or payment of a benefit under the legislation of one Party which should, for the purposes of that legislation, have been presented within a prescribed period to the competent authority of that Party, but which is presented within the same period to the authority of the other Party, shall be treated as if it had been presented to the competent authority of the first Party.

2. A claim for a benefit under the legislation of one Party shall be deemed to be a claim for the corresponding benefit under the legislation of the other Party, provided that the applicant:

( a ) requests that it be considered as an application under the legislation of the other Party, or

( b ) provides information at the time of application indicating that reckonable periods have been completed under the legislation of the other Party.

However, the applicant may request that the claim to the benefit under the legislation of the other Party be deferred.

3. In any case to which paragraph 1 or 2 applies, the authority to which the claim, notice or appeal has been submitted shall transmit it without delay to the competent authority of the other Party.

Article XVIII.

1. The competent authority of a Party shall discharge its obligations under this Agreement in the currency of that Party.

2. Benefits shall be paid to beneficiaries or their duly authorized agents, where appropriate, free from any deduction for administrative expenses that may be incurred in paying the benefits.

Article XIX.

The competent authorities of the Parties shall resolve, to the extent possible, any difficulties which arise in interpreting or applying this Agreement in accordance with its spirit and fundamental principles.

Article XX.

The relevant authority of Ireland and a province of Canada may conclude understandings concerning any social security matter within provincial jurisdiction in Canada in so far as those understandings are not inconsistent with the provisions of this Agreement.

PART V.

TRANSITIONAL AND FINAL PROVISIONS.

Article XXI.

1. Any reckonable period completed before the date of entry into force of this Agreement shall be taken into account for the purposes of determining the right to a benefit under the Agreement.

2. No provision of this Agreement shall confer any right to receive payment of a benefit for a period before the date of entry into force of the Agreement.

3. Subject to paragraph 2, a benefit, other than a lump sum payment, shall be paid under this Agreement even if it is in respect of events which occurred before the date of entry into force of the Agreement.

4. In a case to which paragraph 3 applies, at the request of the beneficiary,

( a ) the amount of any benefit payable only by virtue of this Agreement shall be determined and paid with effect from the date of entry into force of this Agreement, and

( b ) the amount of any benefit which has been determined before the entry into force of this Agreement shall be recalculated and paid with effect from the date of entry into force of this Agreement, provided that the request is submitted within two years from the date of entry into force of this Agreement. If, however, the request is submitted later than two years from the date of entry into force of this Agreement, the benefit shall be paid from the date determined under the legislation of each Party.

Article XXII.

1. This Agreement shall enter into force, after the conclusion of the administrative arrangement referred to in Article XIV, on the first day of the second month following the month in which each Party shall have received from the other Party written notificationn that it has complied with all statutory and constitutional requirements for the entry into force of this Agreement.

2. This Agreement shall remain in force without any limitation on its duration. It may be denounced at any time by either Party giving twelve months' notice in writing to the other Party.

3. In the event of the termination of this Agreement, any right acquired by a person in accordance with its provisions shall be maintained and negotiations shall take place for the settlement of any rights then in course of acquisition by virtue of those provisions.

4. With the coming into force of this Agreement, in accordance with paragraph 1 of this article, the Agreement between the Government of Canada and the Government of Ireland relating to the Canada Pension Plan, done in Ottawa on November 21, 1972, shall be superseded.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement.

DONE in two copies at Ottawa, this 29th day of November 1990, in the English and French languages, each text being equally authentic.

EN FOI DE QUOI, les soussignés, dûment autorisés à cet effet par leurs Gouvernements respectifs, ont signé le présent Accord.

Fait en deux exemplaires à Ottawa, ce 29eme jour de november 1990, dans les langues française et anglaise, chaque texte faisant également foi.

MICHAEL WOODS,

For the Government of Ireland.

Pour le Gouvernement de I'Irlande.

PERRIN BEATTY,

For the Government of Canada.

Pour le Gouvernement du Canada.

EXPLANATORY NOTE.

This Order gives effect to the bilateral Agreement on Social Security made between Ireland and Canada which comes into effect from 1 January, 1992. The Order provides that the Social Welfare Acts and relevant regulations will be modified to take account of the provisions of the Agreement.

The primary purpose of the Agreement is to allow social insurance contributions paid in one country to assist a claimant to qualify for certain benefits in the other country. In the case of Ireland the Agreement covers old age (contributory) pensions, retirement pensions, invalidity pensions, widows and orphans (contributory) pensions and death grant. Under the Agreement contributions paid during employment in Canada as well as periods of residence in Canada can be taken into account, subject to certain conditions, along with Irish social insurance contributions to help a person qualify for these benefits. The Agreement also deals with the liability, for social insurance contributions, of "detached" workers who move between the two countries — these are workers who are sent to work in one country for a temporary period by an employer who has his business in the other country. The Agreement lays down rules as to which countries legislation will apply.