On 9 May 2017, the Irish Minister for Social Protection, Leo Varadkar (the "Minister"), announced the publication of The General Scheme of the Social Welfare and Pensions Bill 2017 (the "General Scheme"). The General Scheme aims to offer greater safeguards to members of defined benefit pension schemes and, as published, has the potential to significantly alter the funding regime for such schemes. The publication of the General Scheme has particular significance for any defined benefit pension scheme with an immediate termination power, as well as schemes that are underfunded by reference to the statutory minimum funding standard ("MFS").
At this point, we would alert employers and trustees to the following headline issues:
- The General Scheme proposes that employers will be required to
provide 12 months' notice to the Pensions Authority and to the
scheme trustees where they wish to cease contributions to a defined
benefit pension scheme (subject to a trustee power to agree to
truncate the notice period in certain circumstances). Where
notice to cease contributions is served the employer must pay
contributions, at least equal to the contributions payable
immediately prior to the notice, for the period of the
notice. Employers and trustees are also required to enter
negotiations to agree a funding proposal where the scheme does not
meet the MFS.
- Of particular concern for employers will be the fact that the
explanatory notes to the General Scheme confirm that the intention
is that, during the 12 month notice period, trustees will be able
to make a contribution demand where their scheme allows
this. This means that in schemes where employers previously
had an immediate termination power and a contribution power drafted
against the employer there will be a fundamental shift in the
balance of powers, in favour of trustees.
- Currently, there is no legal certainty as to whether funding proposals constitute legally enforceable contracts and the duty to agree a funding proposal falls to the trustees under the Pensions Act 1990 (as amended). Under the General Scheme, if a defined benefit pension scheme does not satisfy the MFS and a funding proposal has not been agreed between the employer and trustees (or the employer fails to make a contribution under an agreed funding proposal), the Pensions Authority has the power to determine a schedule of contributions that will restore the scheme to an adequate funding position. The schedule of contributions will be treated as a debt due to the trustees by the employer.
- Trustees (particularly those of schemes where the employer has an immediate termination power) should be aware that there is a risk employers may take pre-emptive action to wind up their schemes before the General Scheme is enacted. Trustees in this position should consider whether a contribution demand might be appropriate.
In summary, the changes proposed by the General Scheme are significant. Employers and trustees may have very different concerns and should carefully consider the provisions outlined in the General Scheme with their advisors. As the Minister has indicated that the proposals will be brought into effect as soon as possible (he has indicated a preference to have the Bill enacted before the summer recess) we would advise against delay in seeking advice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.