Social Welfare (Miscellaneous Provisions) Act 2004

SCHEDULE 2

Amendments to Pensions Act 1990

Section 23 .

Item

Provision affected

Amendment

1

Section 2.

(a) Substitute “ ‘contract of employment’, other than in Part VII, means—” for “ ‘contract of employment’ means—”.

(b) Substitute “ ‘scheme’, other than in Part VII, means—” for “ ‘scheme’ means—”.

2

Section 3 (as amended by the Pensions (Amendment) Act 2002 ).

(a) Insert the following after subsection (2):

“(2A) Where an employee is dismissed from an employment solely or mainly because, in good faith, the employee—

(a) notified the Board of an alleged breach of this Act, other than of Part VII,

(b) made to the Board a report under section 83 or a voluntary report of any matter concerning the state and conduct of a scheme or PRSA, other than a matter to which Part VII applies,

(c) made a reference under section 38, 53, 58 or 64A,

(d) gave evidence in any proceedings under this Act, other than Part VII, or

(e) gave notice to his employer of his intention to do anything referred to in paragraph (a), (b), (c) or (d),

the employer shall be guilty of an offence.

(2B) (a) On conviction of an employer for an offence under this section, the Court may, if it thinks fit and the dismissed employee is present or represented in court and consents—

(i) order the re-instatement by the employer of the dismissed person in the position which that person held immediately before the dismissal on the terms and conditions on which that person was employed immediately before that dismissal, together with a term that the reinstatement shall be deemed to have commenced on the day of the dismissal,

(ii) order the re-engagement by the employer of the dismissed person either in the position which that person held immediately before the dismissal or in a different position which would be reasonably suitable for that person on such terms and conditions as are reasonable having regard to all the circumstances, or

(iii) impose on the employer, in addition to any fine imposed under subsection (3), a fine not exceeding the amount which, in the opinion of the Court, the dismissed person would have received from the employer concerned by way of remuneration if the dismissal had not occurred:

Provided that that amount shall not exceed—

(I) if the conviction was a summary conviction, an amount which together with the fine imposed under subsection (3) does not exceed €3,500,

(II) if the conviction was on indictment, an amount equal to 104 weeks' remuneration of the dismissed person.

(b) The amount of a fine imposed under paragraph (a) shall be paid to the employee concerned.

(c) Without prejudice to any right of appeal by any other person, the employee concerned may appeal against the amount of the fine under paragraph (a), either (as the case may be) to the High Court or to the judge of the Circuit Court in whose circuit the district court district (or any part thereof) of the judge of the District Court by whom the fine was imposed is situated, and the decision on such an appeal shall be final.

(d) Proof of the payment by an employer of a fine imposed under paragraph (a) shall be a defence to any civil action brought against him or application made under any enactment by the employee concerned in respect of the remuneration referred to in subparagraph (iii) of that paragraph.”.

(b) In subsection (3), substitute “under subsection (1), (2) or (2A)” for “under subsection (1) or (2)”.

3

Section 5 (as amended by the Pensions (Amendment) Act 2002 ).

In subsection (5), substitute “2001, or the Protection of Employees (Fixed-Term Work) Act 2003 ” for “2001”.

4

Section 34 (as amended by the Social Welfare (Miscellaneous Provisions) Act 2003 ).

Substitute the following for the proviso to subsection (2) (as amended by the Social Welfare (Miscellaneous Provisions) Act 2003 ):

“Provided that—

(i)   in the case of a member who is entitled to a preserved benefit under section 28(2)(b), the part of the transfer payment which represents the actuarial value of benefits specified in section 44(a)(v) may be reduced by multiplying it by the specified percentage shown in the most recent actuarial funding certificate having an effective date after 1 June 2002 in respect of that scheme, and

(ii)  in the case of a defined benefit scheme, if the actuary advises the trustees that he is reasonably satisfied that, if he were to prepare an actuarial funding certificate under section 42 having an effective date of the day upon which the amount of the transfer payment is expected to be made, he would not certify that the scheme satisfies the funding standard provided for in section 44, the amount of the transfer payment applied by the trustees after 2 April 2003 may be reduced by the trustees, on the advice of the actuary, having regard to the provisions of section 48.”.

5

Section 113 (as amended by the Social Welfare (Miscellaneous Provisions) Act 2003 ).

(a) In subsection (1), substitute “subsections (3) and (6)” for “subsection (3)”.

(b) In subsection (3), substitute “Subsection (1)” for “Except in the case of a person who is, for the time being, a member of a scheme accruing benefit under that scheme, subsection (1)”.

(c) Insert the following after subsection (5):

“(6) This section does not apply to a scheme the winding-up of which has been notified to the Board in accordance with Article 14 of the Occupational Pension Schemes (Disclosure of Information) (No. 2) Regulations 1998 ( S.I. No. 349 of 1998 ).”.

6

Section 121 (as amended by the Social Welfare (Miscellaneous Provisions) Act 2003 ).

In subsection (6A)(b) substitute “the PRSA provider of the PRSA concerned” for “the trustees of the scheme concerned” in each place where it occurs.

7

Section 131 (inserted by the Pensions (Amendment) Act 2002 ).

In subsection (3), substitute “determined by the Pensions Ombudsman, after consultation with the Minister and the Minister for Finance.” for “prescribed by regulations made by the Minister, after consultation with the Minister for Finance.”.

8

Section 137 (inserted by the Pensions (Amendment) Act 2002 ).

Substitute the following for subsection (8):

“(8) The Pensions Ombudsman may, if he thinks fit, pay to the person affected by an action in respect of which an investigation is held by the Pensions Ombudsman under this Part and to any other person who attends for the purposes of this investigation sums in respect of travelling and subsistence expenses properly incurred by them of such amount as may be determined by the Minister, after consultation with the Minister for Finance.”.