S.I. No. 580/2009 - An Coimisinéir Teanga Superannuation Scheme 2009 [Official Translation]

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 8th January, 2010.

Table of Contents

I, ÉAMON Ó CUÍV, Minister for Community, Rural and Gaeltacht Affairs, in exercise of the powers conferred on me by section 20 of, and the Second Schedule to, the Official Languages Act 2003 (No. 32 of 2003) hereby make the following Scheme.

Citation.

1. This Scheme may be cited as An Coimisinéir Teanga Superannuation Scheme 2009.

Commencement.

2. The Scheme will be deemed to have commenced with effect from the 23rd day of February 2004, which shall be known as the date of commencement.

Definitions.

3. In this Scheme save where the context otherwise requires:

“actual pensionable service” means service as defined in subparagraph 5(1)(a) and 5(1)(b) of this scheme;

“Commissioner” means An Coimisinéir Teanga as defined under paragraph 20(1) of the Official Languages Act 2003 , as appointed from the 23rd day of February 2004;

“fully insured member” means a member of this Scheme who is, or was immediately before attaining the age of 66, insured for the Old Age (Contributory) Pension under the Social Welfare Acts;

“Minister” means the Minister for Community, Rural and Gaeltacht Affairs;

“Old Age (Contributory) Pension” means the contributory old age pension payable under the Social Welfare Acts;

“Pensions Ombudsman Regulations” means the Pensions Ombudsman Regulations, 2003 ( S.I. No. 397 of 2003 );

“personal rate” in relation to any Social Welfare benefit, means the rate of such benefit which is payable under the Social Welfare Acts to a single person excluding any increase that is payable on age grounds, or by virtue of the recipient living alone, or in respect of a qualified adult or child dependant, and “maximum personal rate” shall be construed accordingly;

“public service pension scheme” has the meaning assigned thereto in subsection 1(1) of the Public Service Superannuation (Miscellaneous Provisions) Act of 2004 (No. 7 of 2004);

“reduced rate” in relation to any Social Welfare benefit, means the personal rate of such benefit if that rate is less than the maximum personal rate of the Old Age (Contributory) Pension;

“RTÉ Superannuation Scheme” means the Contributory Funded Defined Benefit Pension Scheme operated by Radió Teilifís Éireann, which was closed to new employees in July 1989;

“Social Welfare Acts” means the Social Welfare Acts 1981 to 2008 — including any enactment which amends or extends any or all of those Acts and any regulation, warrant or order made thereunder;

“Social Welfare Benefit” means the Old Age (Contributory) Pension, Retirement Pension, Invalidity Pension, Disability Benefit or Unemployment Benefit payable under the Social Welfare Acts;

“years” means a figure determined by the formula A B/365 where A is the number of completed years in the period in question and B is any number of days additional to a completed year or a number of completed years in that period, and “year” shall be construed accordingly.

Pensionable salary.

4. (1) “Salary” means the annual basic rate of salary payable from time to time as lawfully determined or lawfully approved by the Minister for Finance, excluding any sums paid in respect of overtime, commission, gratuity, special fees, travelling allowance, subsistence allowance and the like, the money equivalent of any emolument or benefit in kind (including motor car or other vehicle) or any payment toward or in respect of such emoluments.

(2) “Net Salary” means the amount by which salary exceeds twice the annual maximum personal rate of the Old Age (Contributory) Pension payable from time to time to a person who has no adult dependent or qualified children.

(3) “Retiring salary” means the salary of the Commissioner at the date of retirement or death where—

(a) The Commissioner has completed three years actual pensionable service as Commissioner at his date of resignation;

(b) the Commissioner dies in service with actual and pensionable service of more than 3 years;

(c) the Commissioner retires on health grounds before age 60 with actual and potential service to age 60 of more than 3 years.

In any other case retiring salary shall be taken as the total calculated by multiplying by 1/1095 the annual rate of salary appropriate on the last day of pensionable service for each grade in which the Commissioner served during the last three years of pensionable service, and multiplying the result by the number of days of his employment in each grade during those years, subject to the retiring salary so taken not exceeding the annual basic rate of salary payable at the time of retirement or death.

(4) “Net pensionable salary” means the amount by which pensionable salary exceeds twice the annual maximum personal rate of Old Age (Contributory) Pension payable on the last day of pensionable service to a person who has no adult dependant or qualified children.

Pensionable service.

5. (1) Pensionable service shall, subject to a maximum of 40 years, be the aggregate of—

(a) Service as a Commissioner given before the age of 67;

(b) actual service which was reckonable for the purposes of the RTÉ Superannuation Scheme;

(c) if pensionable service by age 65 would be less than 40 years, extra years of pension credit, subject to limits to be determined by the Minister in consultation with the Minister for Finance, which he opts to purchase at full cost to himself on the basis of actuarial tables approved by the Minister for Finance.

(2) (a) If the Commissioner completes five or more years of actual pensionable service and retires, or is retired, on medical grounds in accordance with the conditions laid down in paragraph 7(1) of this scheme, he may, at the discretion of the Minister, have a period of notional service (to be referred to as “ill-health notional service”) added to his pensionable service, provided that the aggregate of pensionable service and ill-health notional service does not exceed 40 years.

(b) The ill-health notional service shall be calculated as the lesser of:

(i) 6 years and 243 days, or

(ii) the additional actual pensionable service he would have had if he had served to age 60 or, if earlier, to the date on which his contract of employment would expire.

Benefits.

6. (1) Pension:

(a) If the Commissioner completes two years’ actual pensionable service and retires, or is retired, after attaining the age of 60 years he shall be eligible to receive a pension of an amount per annum calculated at the rate of 1/80th of his net pensionable salary for each year of pensionable service, subject to a maximum of 40/80ths;

(b) If the Commissioner completes five years’ actual pensionable service and retires, or is retired, before or after reaching the age of 60 on medical grounds in accordance with the conditions laid down paragraph 7(1) of this scheme he shall be eligible to receive a pension of an amount per annum calculated at the rate of 1/80th of his net pensionable salary for each year of pensionable service, subject to a maximum of 40/80ths.

(2) Gratuities:

(a) If the Commissioner completes two years actual pensionable service and retires or is retired after attaining the age of 60, he shall be eligible to receive a gratuity at the rate of 3/80ths of pensionable salary for each year of pensionable service subject to a maximum of 120/80ths.

(b) If the Commissioner completes at least five years actual pensionable service and retires or is retired on medical grounds in accordance with the conditions laid down in paragraph 7(1), he shall be eligible to receive a gratuity at the rate of 3/80ths of pensionable salary for each year of pensionable service subject to a maximum of 120/80ths.

(c) (i) If the Commissioner dies while serving, his legal personal representative shall be eligible to receive the greater of—

(a) his pensionable salary or

(b) the gratuity that would have been payable had the Commissioner retired on medical grounds on the date of his death.

(ii) If the Commissioner, having been granted a pension and a gratuity, dies and the total paid or payable on foot of the pension and gratuity (including any deductions made in respect of non-periodic contributions under An Coimisinéir Teanga Contributory Pension Scheme for Spouses and Children 2009 is less than the gratuity which would have been granted to his legal personal representative if he had died on the date of his retirement, his legal personal representative shall be eligible to receive a gratuity equal to the deficiency.

(3) Preservation of Benefits:

(a) Where the Commissioner ceases to be the Commissioner before age 60 otherwise than in accordance with the conditions laid down in paragraph 7(1) after at least two years’ actual pensionable service he will, on attaining the age of 60, qualify under this subparagraph for a pension and lump sum payment (which pension and lump sum are in this Scheme referred to as a “preserved pension” and “preserved lump sum” respectively), provided

(i) he does not receive any other benefit in respect of that service, and

(ii) that service is not reckoned for pension purposes by him in another employment under approved arrangements.

(b) a preserved pension shall be payable to the Commissioner on and from his attaining the age of 60 on an application being made by him in that behalf.

(c) a supplementary pension on the terms and conditions set out in subparagraph 6(4) of this scheme may be paid at the discretion of the Minister.

(d) a preserved pension may not exceed an amount obtained by the formula—

((A – B)/(80))

where A is the number of years of pensionable service, subject to a maximum of 40, as calculated under paragraph 5(1) and

B is the figure arrived at by increasing his net pensionable salary at date of resignation by reference to pensions increases granted under paragraph 9 of this Scheme in the interval between the date of resignation and the date on which the Commissioner attains the age of 60.

(e) If the Commissioner retires in accordance with paragraph 6(3)(a) and dies before attaining the age of 60 a sum (in this Scheme referred to as a “preserved death gratuity”) shall be payable to the Commissioner’s legal personal representative in respect of him.

(f) A preserved lump sum or preserved death gratuity may not exceed an amount obtained by the formula—

((3A – B)/(80))

where A has the meaning assigned to it by paragraph 6(3)(d), and

B is the pensionable salary at date of resignation of the Commissioner as increased by reference to pensions increases granted under paragraph 9 of this Scheme in the interval between the date of resignation and the date

(i) on which he attains the age of 60 in the case of a preserved lump sum, or

(ii) of his death, in the case of a preserved death gratuity.

(g) A preserved lump sum or preserved death gratuity shall be payable to or in respect of the Commissioner on an application being made to the Minister by him at any time after he reaches the age of 60 or, in case he dies before reaching that age, by his legal personal representative.

(4) Supplementary Pension

(a) Where the Commissioner is in receipt of a pension under this scheme and is unemployed and due to causes outside his own control

(i) fails to qualify for Social Welfare benefit, or

(ii) qualifies for Social Welfare benefit at a reduced rate,

then for so long as the preconditions set out in this subparagraph are met, the Commissioner may, at the discretion of the Minister, be paid a supplementary pension under this Scheme.

(b) The amount of a supplementary pension payable pursuant to subparagraph (a) of this paragraph shall be the amount, if any, arrived at by the formula A—(B C), where A is the amount of the pension or preserved pension which would be payable to the Commissioner under paragraph 6(1) of this scheme if such pension had been calculated by reference to pensionable salary rather than net pensionable salary, B is the amount of the pension actually payable to the Commissioner under the said paragraph 6(1) and C is the annual amount of the reduced rate of the Social Welfare benefit, if any, which is payable to the Commissioner.

Retirement on medical grounds.

7. (1) Where the Commissioner retires or is retired on medical grounds, a benefit under paragraphs 6(1) and/or 6(2) of this scheme shall only be made where the following conditions are met:

(a) Medical evidence must be supplied, having regard to which the Minister is satisfied that the Commissioner is incapable from infirmity of mind or body of discharging the duties of his post and that that infirmity is likely to be permanent. In this connection, the Commissioner must, if requested by the Minister, undergo medical examination by a registered medical practitioner nominated by the Minister

(b) The retirement must be wholly due to the infirmity.

(2) Where either or both of the above conditions are not met, paragraph 6(3), shall apply in lieu of benefit under paragraphs 6(1) and 6(2).

Payment of pension or preserved pension.

8. Save as is otherwise provided in the scheme, pensions and preserved pensions payable under this Scheme shall be paid by the Minister fortnightly in arrears and shall continue throughout the life of the Commissioner.

Pensions increases.

9. Pensions and preserved pensions payable under this scheme shall be increased by such amounts as may be authorised with the consent of the Minister for Finance.

Contributions

10. (1) The Commissioner shall pay a contribution as from the date of commencement.

(2) The contribution shall comprise

(a) 3.5% of net salary and

(b) 1.5% of salary.

(3) Where the Commissioner is in receipt of a reduced rate of pay because of absence from employment, the contributions in respect of that period will be calculated by reference to the rate of pay that would be payable to him if he were not so absent.

Cesser or reduction of benefit.

11. (1) Where the Commissioner is dismissed or resigns or otherwise ceases to hold employment and has been guilty of misconduct involving a financial loss to the State, the Minister may, at his or her discretion, refuse or reduce any award which might otherwise be payable under paragraph 6 of this Scheme in order to make good such a loss.

(2) The Minister may, at his or her discretion, reduce or cease paying a pension awarded under this Scheme if the Commissioner has been guilty of misconduct involving a financial loss to the State in order to make good such a loss.

Conditions governing awards.

12. (1) Declarations

Payments of pension or preserved pension under this Scheme shall be subject to the making by the Commissioner of a relevant declaration in such form and at such time as the Minister may require.

(2) Proof of age

The Commissioner must submit evidence of his date of birth on entry into the Scheme or before any payment of benefit can be made.

Assignments.

13. A pension or preserved pension under this Scheme may not be assigned or charged. If the Commissioner becomes incapable of giving a receipt for payments due, the Minister shall have discretion to make such payments in whole or in part to such persons, including the authorities of any institution having care of the Commissioner, as the Minister thinks fit, and the Minister shall be discharged from all liability in respect of any sum so paid.

Duplication of benefit not to be allowed.

14. (1) (a) The Commissioner shall not be entitled to reckon the same period of service more than once for the purposes of a pension or gratuity, unless in the case of a gratuity, having been entitled to repay such gratuity, he has done so.

(b) The Commissioner shall not be entitled to reckon the same period of time both for the purposes of this scheme and also for the purposes of any other public service pension scheme.

Appeals.

15. If the Commissioner is aggrieved by the failure or refusal to make an award under this Scheme or by the amount of any award (including the award of pension increases) made, he may appeal to the Minister who shall, within three months of the dispute being referred to him or her, issue a determination in accordance with Article 5(1) of the Pensions Ombudsman Regulations 2003 ( S.I. No. 397 of 2003 ).

Termination or Amendment of Scheme.

16. The Minister reserves the right to amend or terminate the Scheme at any time subject to giving three months’ notice of impending changes to the Commissioner. Benefits secured for the Commissioner prior to the date of amendment or termination will not be affected.

GIVEN under my Official Seal,

22 December 2009

ÉAMON Ó CUÍV,

Minister for Community, Rural and Gaeltacht Affairs.

EXPLANATORY NOTE

This scheme provides for the superannuation benefits of the Coimisinéir Teanga appointed on the 23rd day of February 2004.