S.I. No. 399/1993:

OCCUPATIONAL PENSION SCHEMES (MEMBER PARTICIPATION IN THE SELECTION OF PERSONS FOR APPOINTMENT AS TRUSTEES) (NO. 2) REGULATIONS, 1993.

OCCUPATIONAL PENSION SCHEMES (MEMBER PARTICIPATION IN THE SELECTION OF PERSONS FOR APPOINTMENT AS TRUSTEES) (NO. 2) REGULATIONS, 1993.

The Minister for Social Welfare, in exercise of the powers conferred on him by section 5 and section 62 (as amended by section 15 of the Social Welfare (No. 2) Act, 1993 (No. 32 of 1993)) of the Pensions Act, 1990 (No. 25 of 1990), hereby makes the following Regulations.

1. (1) These Regulations may be cited as the Occupational Pension Schemes (Member Participation in the Selection of Persons for Appointment as Trustees) (No. 2) Regulations, 1993.

(2) These Regulations shall come into operation on the 1st day of January, 1994.

2. The Occupational Pension Schemes (Member Participation in the Selection of Persons for Appointment as Trustees) Regulations, 1993 (No. 216 of 1993) are hereby revoked.

3. (1) In these Regulations--

"the Act" means the Pensions Act, 1990 (No. 25 of 1990);

"the Board" has the meaning assigned to it by section 2 of the Act;

"active member" in relation to a scheme, means a member who is in reckonable service;

"authorised trade union" has the meaning assigned to it by section 54 (6) of the Act;

"alternative arrangement" has the meaning specified in article 8 of these Regulations;

"Chairperson" means a person selected or nominated for appointment as a trustee of the relevant scheme and as Chairperson of the trustees of the relevant scheme in accordance with these Regulations;

"directly invested scheme" means a scheme which, at the commencement of a scheme year, is a scheme other than a scheme which has resources comprised entirely of one or more of the following

( a ) insurance policies,

( b ) contracts of assurance,

( c ) managed funds,

( d ) unit trusts and

( e ) cash deposits with authorised deposit taking institutions

provided that for the purposes of this definition resources shall exclude unpaid contributions which have accrued due to the scheme;

"election" means an election in accordance with the standard arrangement;

"employer" in relation to a relevant scheme means the employer who undertakes the role of principal employer for the purposes of the relevant scheme's approval by the Revenue Commissioners under Chapter II of Part I of the Finance Act 1972 ;

"member trustee" means a person selected by qualified members for appointment as a trustee of the relevant scheme in accordance with the standard arrangement or a person whose selection is approved by qualified members for appointment as a trustee of the relevant scheme in accordance with paragraph I of an alternative arrangement or a person selected to fill a vacancy in accordance with article 17 of these Regulations;

"pensioner member" in relation to a scheme means a member of the scheme who is in receipt of benefits under the scheme;

"person" means a person over 18 years or a corporate body;

"preliminary poll" means a poll held in accordance with article 8 of these Regulations;

"qualified member" in relation to any date means an active member or a pensioner member of the relevant scheme on that date or on such previous date to be decided by the trustees, in any event not earlier than the beginning of the scheme year in which the process is initiated in accordance with article 6, or in which (as the case may be) the procedure for reselection commences in accordance with article 18;

"relevant scheme" means a scheme, other than an external scheme, which is established under a trust and which has not less than 50 qualified members or is a directly invested scheme which has not less than 12 qualified members;

"scheme year", in relation to a scheme, means whichever of the periods specified in section 55 (1) of the Act the trustees select;

"sole corporate trustee" means a person (where such person is a corporate body) whose selection is approved by qualified members for appointment as sole trustee of the relevant scheme in accordance with paragraph (II) of an alternative arrangement;

"standard arrangement" has the meaning specified in article 8 of these Regulations;

"standard notification" has the meaning specified in article 8 of these Regulations;

"valid candidate" has the meaning specified in article 10 of these Regulations;

"valid nominee" has the meaning specified in article 10 of these Regulations;

"valid request" means (subject to subarticle (1) of article 18) a request in writing to the trustees of the relevant scheme by either:

( a ) one or more authorised trade union or unions representing not less than 50 per cent of active members of the scheme at the beginning of the scheme year in which the request is made, or

( b ) not less than 15 per cent of the qualified members

for a preliminary poll.

(2) In these Regulations any reference to the appointment of a trustee or a member trustee shall be construed as a reference to his appointment or retention as such trustee, as the case may be.

4. Qualified members may either,

( a ) select, or

( b ) approve of the selection by the employer of,

a person or a specified number of persons who shall be appointed to be a trustee or trustees of the relevant scheme in accordance with these Regulations.

5. (1) The number of persons that may be selected by the qualified members for appointment as member trustees under a standard arrangement shall be two, or one half the total number of trustees (excluding the Chairperson), whichever is the greater.

(2) The number of persons the selection of whom may be approved by the qualified members for appointment as member trustees under an alternative arrangement shall be such number (if any) as is agreed by the qualified members in a preliminary poll.

6. (1) Where the trustees of a relevant scheme receive a valid request they shall notify the employer within 14 days of receipt of such request and shall without undue delay appoint a returning officer in accordance with article 7 and shall supply to such returning officer a list of the qualified members.

(2) Where (subject to subarticle (1) of article 18) either the employer:

( a ) receives a notification in accordance with subarticle

(1) of this article or in accordance with subarticle

(2) of article 18, or

( b ) at any time so decides

he shall direct the trustees either:

(i) to hold a preliminary poll, or

(ii) to proceed to the selection by qualified members of persons for appointment as member trustees in accordance with the standard arrangement (as defined in article 8) by means of an election in accordance with these Regulations and shall specify the number of persons to be appointed as trustees of the relevant scheme by the employer and, where a preliminary poll is to be held, shall provide details of the alternative arrangement as defined in article 8.

(3) The trustees on receipt of the employer's direction under subarticle (2) of this article shall supply the returning officer with a copy of such direction and the returning officer in accordance with such direction shall, either

( a ) proceed to hold a preliminary poll in accordance with article 8 and he shall notify the employer and the trustees in writing of the result of such poll within 30 days of the receipt of the employer's direction, or

( b ) arrange for an election in accordance with these Regulations and shall notify the employer and the trustees in writing of the result of such election within 90 days of the receipt of the employer's direction.

(4) Where the employer has received notification in accordance with subarticle (1) of this article or in accordance with subarticle (2) of article 18 and fails to direct the trustees under subarticle (2) of this article within a period of 60 days the trustees shall instruct the returning officer to proceed directly to an election to select a number of persons for appointment as member trustees, such number to be equal to the number of existing trustees of the relevant scheme (excluding any member trustees), in accordance with these Regulations and shall notify the employer and the trustees in writing of the result of such election within 90 days of the receipt of the trustee's instruction.

7. (1) The person to be appointed as returning officer for the purposes of these Regulations shall be:

( a ) the secretary of the employer, or in case there is no such secretary, the officer of the employer who performs the functions of secretary, or

( b ) in lieu of such secretary or officer, any other person who in the opinion of the trustees of the relevant scheme is competent to perform the functions of returning officer.

(2) A returning officer may perform any of his functions, through or by any other employee of the employer or through or by any other person who, in either case, is duly authorised by him in writing in that behalf.

(3) The returning officer shall not be entitled to be nominated as, or to nominate, a person for selection as a member trustee in accordance with article 10.

(4) The returning officer in his conduct of the preliminary poll and the election shall have regard, inter alia, to such guidance notes (regarding the conduct of preliminary polls and elections), if any, as may from time to time be issued by the Board.

(5) If the returning officer fails, for whatever reason, to carry out his duties in accordance with these Regulations, then the trustees of the relevant scheme shall appoint such other person as they shall decide to carry out the functions of returning officer, provided that the appointment of such person has been approved by the Board.

8. (1) Subject to article 6 the returning officer shall arrange for the taking of a poll (herein referred to as a preliminary poll) for the purposes of ascertaining whether the qualified members wish to

( a ) select, or

( b ) approve of the selection by the employer of,

a person or a specified number of persons who shall be appointed to be a trustee or trustees of the relevant scheme in accordance with these Regulations.

(2) The ballot paper to be used at a preliminary poll shall enable the qualified member to select one of the following two options:

( a ) a standard arrangement, or

( b ) an alternative arrangement

where a "standard arrangement" means an arrangement whereby

(i) the employer shall nominate a specified number of persons to be appointed as trustees of the relevant scheme and shall furnish to the returning officer the names of such persons in accordance with subarticle (3) of article 12.

(ii) the qualified members by means of an election held in accordance with these Regulations shall select an equivalent number of persons, being not less than two, who shall be appointed as member trustees, and

(iii) the Chairperson shall be selected in accordance with article 13

and an "alternative arrangement" means an arrangement whereby the employer shall specify either--

(I) (A) the names of the person or persons, if any, whose selection shall be approved by the qualified members for appointment as member trustees, and

(B) the number of other persons, if any, who shall be appointed as trustees of the relevant scheme, and

(C) the name of the Chairperson, if any, or the procedure for selecting such Chairperson.

or,

(II) the name of the person (where such person is a corporate body) whose selection shall be approved by the qualified members for appointment as sole trustee of the relevant scheme.

(3) The returning officer in arranging for the taking of a preliminary poll under subarticle (1) of this article shall arrange to have a standard notification delivered to each qualified member or sent by post in a registered letter addressed to such qualified member at his last known address

where a "standard notification" shall include

( a ) a ballot paper which shall be in the form set out in Schedule A to these Regulations or in a form substantially to the like effect,

( b ) a notification which shall be in the form set out in Schedule B to these Regulations or in a form substantially to the like effect,

( c ) a note of the number of persons to be selected by qualified members for appointment as member trustees in accordance with the standard arrangement, and

( d ) a note from the employer with relevant details of the alternative arrangement, in accordance with article 8, and

( e ) such other documents as the returning officer considers necessary for the taking of the preliminary poll.

(4) The votes at a preliminary poll taken under this article shall be given by secret ballot and each qualified member shall be entitled to one vote which shall be cast on the ballot paper issued with the standard notification.

(5) As soon as may be after the taking of a preliminary poll under this article the returning officer shall ascertain the number of votes in favour of the standard arrangement and the number of votes in favour of the alternative arrangement.

(6) Subject to subarticle (7):--

( a ) where 50% or more of the qualified members voting in the preliminary poll opt for the standard arrangement then the returning officer shall notify the employer and the trustees in writing and shall arrange for an election and shall notify the employer and the trustees in writing of the result of such election within 90 days of notifying the employer and the trustees of the results of the preliminary poll.

( b ) where more than 50% of the qualified members voting in the preliminary poll opt for the alternative arrangement then the returning officer shall notify the employer and the trustees in writing and shall proceed, where appropriate, in accordance with article 12.

(7) Where less than 25% of the qualified members cast a vote in a preliminary poll the returning officer shall notify the employer and the trustees in writing and the alternative arrangement shall be deemed to be the option chosen by the qualified members and the returning officer shall proceed in accordance with article 12.

9. (1) Where an election is to be held the returning officer shall make the arrangements for the holding of such election and shall notify the qualified members of the number of persons to be selected for appointment as member trustees and the arrangements for the holding of the election.

(2) Without prejudice to the generality of subarticle (1) of this article the returning officer shall be responsible for the following matters in relation to elections:--

( a ) nominations,

( b ) the form of the ballot paper to be used and the particulars to be contained therein,

( c ) the time for and the manner of issuing nomination forms and ballot papers, whether by post or otherwise, to qualified members,

( d ) the time for and manner of returning completed nomination forms and ballot papers issued at an election to the returning officer,

( e ) the maintenance of secrecy of voting,

( f ) the scrutiny of ballot papers,

( g ) the time for and manner of counting of votes,

( h ) the rejection of ballot papers and the disallowance of votes, where appropriate,

( i ) the manner in which the list of qualified members is to be available for inspection by a qualified member, the employer, an authorised trade union representing members of the relevant scheme or a valid candidate,

( j ) making a declaration as to the candidates selected for appointment as member trustees.

and any other matters pertaining to the election, having regard to such guidance notes (regarding the conduct of preliminary polls and elections), if any, as may from time to time be issued by the Board.

(3) Where a poll is to be taken in accordance with subarticle (2) of article 11 each qualified member shall be entitled to one vote and such poll shall be taken by secret ballot and according to the principle of proportional representation.

(4) Any question regarding any aspect of the election shall be determined by the returning officer on application to him in writing by the employer, the trustees, a qualified member, an authorised trade union representing members of the relevant scheme or a valid candidate.

(5) An appeal to the High Court on a point of law from a determination by a returning officer under subarticle (4) of this article may be brought by any of the parties who was entitled to make the application concerned under that subarticle.

10. (1) Any person (hereinafter referred to as a "valid nominee"), shall be eligible to be nominated for selection for appointment as a member trustee.

(2) Any qualified member shall be entitled to nominate a valid nominee or valid nominees up to a maximum of the number of persons to be selected for appointment as member trustees.

(3) Any valid nominee who is nominated by either:--

( a ) not less than 10 qualified members, or

( b ) not less than 10% of the qualified members.

whichever is the lesser.

and who accepts such nomination in a manner set down by the returning officer shall be a candidate (herein referred to as a "valid candidate") for selection for appointment as a member trustee.

11. (1) Where the number of valid candidates is equal to or less than the number of persons to be selected for appointment as member trustees then all the valid candidates, if any, shall be deemed to be selected.

(2) Where the number of valid candidates exceeds the number of persons to be selected for appointment as member trustees then a poll to select such persons shall be taken in accordance with these Regulations.

(3) Where the number of valid candidates is less than the number of persons to be selected for appointment as member trustees then the employer may select a person or persons to bring the number of persons up to the number of member trustees to be appointed in accordance with the standard arrangement.

12. (1) Persons selected by, or persons whose selection is approved by, the qualified members for appointment as member trustees or as sole corporate trustee in accordance with these Regulations shall be appointed as trustees of the relevant scheme from a date 60 days from the date the returning officer declares that they have been selected or notifies that their selection has been approved as such trustees.

(2) The term of officer of a person appointed in accordance with subarticle (1) of this article, other than a sole corporate trustee, shall be a period of 6 years from the date of his appointment.

(3) The employer shall have 14 days from the date the returning officer declares the persons to have been selected for appointment as member trustees, or from the date he notifies the employer that the persons selected by the employer have been approved for appointment as trustees, to specify to the returning officer if he has not already done so, the name or names of the other person or persons, if any, to be appointed as trustees of the relevant scheme in accordance with the standard arrangement or the alternative arrangement as the case may be.

13. (1) The person to be selected for appointment as Chairperson in accordance with the standard arrangement shall be any person selected by a majority of the persons

( a ) selected for appointment as member trustees and

( b ) specified by the employer to be appointed as trustees of the relevant scheme.

and who accepts such appointment in a manner set down by the returning officer.

(2) Within a period of 30 days of the returning officer declaring the selection of persons for appointment as member trustees in accordance with the standard arrangement he shall convene a meeting of the persons described in paragraphs (a) and (b) of subarticle (1) of this article (or in lieu of such meeting may make such other arrangements as he deems appropriate) to give effect to subarticle (1).

(3) Where the persons described in paragraphs (a) and (b) of subarticle (1) of this article fail to select a person for appointment as Chairperson in accordance with that subarticle the returning officer shall immediately notify the employer.

(4) Where in accordance with subarticle (3) of this article the employer is notified of the failure to select a person for appointment as Chairperson he shall within 14 days of receiving such notification nominate any person to be appointed as Chairperson and shall notify the returning officer accordingly.

14. (1) The person selected or nominated for appointment as Chairperson in accordance with these Regulations shall be appointed as Chairperson from the same date as the date of appointment of the member trustees in accordance with subarticle (1) of article 12 or where there are no member trustees appointed under an alternative arrangement from a date 60 days from the date of the returning officer's notification in accordance with paragraph (b) of sub-article (6) of article 8.

(2) The term of officer of a Chairperson appointed in accordance with subarticle (1) of this article shall be a period of 6 years from the date of his appointment.

(3) A person appointed as Chairperson in accordance with these Regulations shall have a second vote in the event of an equality of votes on any issues for determination by the trustees.

15. (1) The returning officer shall, without undue delay and in any event within a period of 14 days of the Chairperson (if any) being selected or nominated notify in writing to the employer and the existing trustees the persons (including the Chairperson) selected or nominated for appointment as trustees of the relevant scheme and shall request the employer to make the appropriate arrangements, without undue delay, to give full effect to these appointments and to notify the returning officer when this has been done.

(2) The returning officer when notifying the employer and the existing trustees under subarticle (1) of this article shall furnish to the Chairperson, the full result of an election, if any, held in accordance with these Regulations.

16. (1) Where any action, or any failure to act, on the part of the employer results in these Regulations failing to have full effect the number of persons to be selected for appointment as member trustees under these Regulations shall be increased, if required, to equal the number of existing trustees of the relevant scheme (excluding any member trustees), as if the circumstances to which article 17 applies were applicable, in accordance with the procedures laid down in that article.

17. (1) A member trustee may resign as a trustee by notifying the Chairperson in writing and such resignation shall take effect from a date not later than 30 days from the date the Chairperson receives such notification.

(2) Where a vacancy occurs in the appropriate number of member trustees by reason of death or resignation or otherwise of a member trustee, or in accordance with article 16 then subject to subarticle (5) of this article,

( a ) where an election has taken place the Chairperson shall notify the next person eliminated with the highest number of votes in such election of the vacancy and where such person, within 14 days notifies the Chairperson in writing that he agrees to be appointed as a member trustee, he shall be appointed as a trustee of the relevant scheme from a date not later than 30 days from the date the Chairperson receives such notification in writing.

( b ) where no such election has taken place or where an election has taken place and there are no further valid candidates from such election available to be appointed as a member trustee then the existing member trustee or member trustees shall select a person for appointment as member trustee, subject to his agreement, and shall notify the Chairperson, whereupon the person selected shall be appointed as a trustee of the relevant scheme from a date not later than 30 days from the date of such notification.

(3) Where the existing member trustees fail, to select a person for appointment as member trustee in accordance with paragraph (b) of subarticle (2) of this article within a period of 30 days then the Chairperson shall select a person who shall be appointed, subject to his agreement, as a trustee of the relevant scheme from a date not later than 30 days from the date such person is selected.

(4) Where a Chairperson dies or resigns as a trustee the employer shall appoint a Chairperson and that person shall be appointed as Chairperson with immediate effect.

(5) Where a member trustee dies or resigns within one year before the completion of his term of office then, unless the member trustees decide otherwise and notify the Chairperson to this effect, the position shall be left vacant until the expiry of the term of office of the trustee concerned.

(6) Where a member trustee or Chairperson is appointed in accordance with this article it shall be for the remainder of the term of office of the trustees or Chairperson being replaced.

(7) Within a period of 14 days of the member trustee being selected in accordance with this article the Chairperson shall notify in writing to the employer and, where appropriate, the remaining trustees the person selected for appointment as such trustee and the name of the member trustee who has died or resigned and shall request the employer to make the appropriate arrangements, without undue delay, to give full effect to this appointment (and resignation, as the case may be) and to notify the Chairperson when this has been done.

(8) In this article any reference to the Chairperson shall be construed as a reference to the other trustees where there is no Chairperson.

18. (1) Where a preliminary poll of qualified members has been taken under subarticle (1) of article 8 or an election has been held in accordance with these Regulations a further such preliminary poll or election shall not be held within a period of 5 years from the date of the previous such poll or election unless at least 50% of the qualified members submit a request in writing to the trustees of the relevant scheme whereupon such a request shall be a valid request for the purposes of these Regulations.

(2) Not more than 12 months and not less than 6 months prior to the date of expiry of the term of office of the member trustees, the trustees of the relevant scheme shall notify the employer of such date of expiry and shall, without undue delay, appoint a returning officer in accordance with article 7 and shall supply to such returning officer a list of the qualified members.

19. The costs and expenses incurred by the trustees and returning officer in relation to the election (including the costs and expenses of the taking of a preliminary poll) may be met from the resources of the relevant scheme.

20. Where, for whatever reason, the trustees, the Chairperson, the returning officer or the employer are unable to carry out their duties within the period specified in these Regulations, the Board may, in exceptional circumstances, extend such specified period, on application to it in writing by such trustees, Chairperson, returning officer or employer.

SCHEDULE A

Article 8

Occupational Pension Schemes (Member Participation in the Selection of Persons for Appointment as Trustees) (No. 2) Regulations, 1993.

Preliminary Poll

Form of Ballot Paper

Scheme to which Preminary Poll relates. . . . . .

Under Section 62 of the Pensions Act, 1990 and the Regulations made thereunder, qualified members of the scheme may,

1. select, or

2. approve of the selection by the employer concerned

of a person or a specified number of persons who shall be appointed to be trustees of the scheme.

Option 1 above is called the standard arrangement and Option 2 is called the alternative arrangement. These are explained in the standard notification, which you will have received with this ballot paper.

__________________________________________________________________

Please indicate your preferred option by marking an 'X' in one of the following boxes.

Standard Arrangement  □

Alternative Arrangement  □

BALLOT PAPER NO.______________

SCHEDULE B

Occupational Pension Schemes (Member Participation in Selection of Persons for Appointment as Trustees) (No. 2) Regulations, 1993.

Standard Notification

This notification outlines the rights which qualified members of certain funded schemes have in relation to the selection of persons for appointment as trustees, in accordance with Section 62 of the Pensions Act, 1990 and the regulations made thereunder.

1. Schemes Covered

Schemes established under a trust with 50 or more qualified members, or 12 or more qualified members if a directly invested scheme.

2. Qualified Members

-- Active members, i.e. current employees accruing retirement benefit under the scheme and

-- Persioner members, i.e. former employees who are in receipt of benefits under the scheme.

3. Initiation of Process

The process may be initiated by either

1. Not less than 15% of the qualified members, or

2. An authorised trade union or unions representing not less than 50% of the active members,

submitting a request in writing to the trustees for a preliminary poll to determine whether the qualified members wish to opt for the standard arrangement or the alternative arrangement (see 5 & 6 over).

The employer may also initiate the process by directing the trustees either

( a ) to hold a preliminary poll, or

( b ) to proceed directly to an election in accordance with the standard arrangement.

4. Returning Officer

Where the process has been initiated the trustees shall appoint a Returning Officer who shall be responsible for a Preliminary Poll and/or an election in accordance with the standard arrangement and arrangements for the appointment of new trustees and where appropriate the Chairperson.

5. Standard Arrangement

This means an arrangement whereby

(i) The employer shall nominate a specified number of persons to be appointed as trustees, and

(ii) The qualified members by means of an election shall select an equivalent number of persons, being not less than 2, to be appointed as member trustees, and

(iii) The Chairperson of the trustees shall be any person selected by the majority of

(a) the persons selected to be member trustees and

(b) the persons nominated by the employer to be trustees

or failing such selection shall be any person nominated by the employer.

6. Alternative Arrangement

This means an arrangement put forward by the employer for the approval of qualified members.

Where there is more than one trustee the employer must specify

(i) the names of those persons (if any) to be appointed as member trustees, and

(ii) the number of other persons (if any), to be appointed as trustees and

(iii) either the name of the Chairperson (if any), or the procedure proposed for selecting the Chairperson.

The employer may also propose as an alternative arrangement the appointment of a corporate body as sole trustee.

Note:

You will also have received with this Standard Notification

(i) in respect of the Standard Arrangement:--

a note of the number of persons to be selected as member trustees should qualified members opt for that arrangement, and

(ii) in respect of Alternative Arrangement:--

a note from the employer with relevant details of the alternative arrangement being proposed.

GIVEN under the Official Seal of the Minister for Social Welfare, this 21st day of December, 1993.

MICHAEL WOODS,

Minister for Social Welfare.

EXPLANATORY NOTE.

Section 62 of the Pensions Act allows for Regulations to be made to provide for Member Participation in the Selection of Persons to be appointed as Trustees.

These Regulations provide that members covered by a scheme with not less than 50 qualified members and a directly invested scheme with not less than 12 members may participate in the selection of trustees.

The number of member trustees to be selected shall be 2 or half the total number whichever is the greater, unless otherwise agreed by the qualified members.

The regulations allow for the process to be initiated by not less than 15% of the qualified members of the scheme, or trade unions representing not less than 50% of the active members, or the employer and makes provision for the appointment of a Returning Officer and gives guidelines as to how polls and elections should be conducted.

The Regulations also provide for, inter alia, nominations, the term of office of member trustee (to be 6 years), the procedure for the appointment of a Chairperson, the filling of casual vacancies and procedures for reselection of member trustees at the end of their term of office.

The Regulations will come into effect on the 1st of January 1994.