6.—(1) In its application to a multi-employer scheme, Article 75 shall have effect in relation to each employer as if –
(a)the reference in Article 75(2)(a)(ii) to a time which falls before any relevant event in relation to the employer which occurs while the scheme is being wound up were a reference to a time which falls before relevant events have occurred in relation to all the employers;
(b)the reference in Article 75(2) to an amount equal to the difference being treated as a debt due from the employer were a reference to an amount equal to that employer’s share of the difference being treated as a debt due from that employer;
(c)the references in Article 75(3)(a)(i) and (b) to no relevant event of the kind there mentioned occurring in relation to the employer were references to no event of that kind occurring in relation to all the employers;
(d)the reference in Article 75(4)(a) to a relevant event (“the current event”) occurring in relation to the employer were a reference to a relevant event or an employment-cessation event occurring only in relation to that employer;
(e)the reference in Article 75(4) to an amount equal to the difference being treated as a debt due from the employer were –
(i)in a case where the difference is ascertained immediately before a relevant event occurs in relation to the employer, a reference to an amount equal to the employer’s share of the difference being treated as a debt due from the employer, and
(ii)in a case where the difference is ascertained immediately before an employment cessation event occurs in relation to the employer, a reference to an amount equal to the sum of the cessation expenses attributable to the employer and the employer’s share of the difference being treated as a debt due from the employer, and
(f)Article 75(4)(d) and (e) were omitted.
(2) For the purposes of paragraph (1), an employer’s share of the difference is –
(a)such proportion of the total difference as, in the opinion of the actuary after consultation with the trustees or managers, the amount of the scheme’s liabilities attributable to employment with that employer bears to the total amount of the scheme’s liabilities attributable to employment with the employers, or
(b)if the scheme provides for the total amount of that debt to be otherwise apportioned amongst the employers, the amount due from that employer under that provision.
(3) For the purposes of paragraph (2) –
(a)the total amount of the scheme’s liabilities which are attributable to employment with the employers, and
(b)the amount of the liabilities attributable to employment with any one employer,
are such amounts as are determined, calculated and verified by the actuary in accordance with the guidance given in GN 19; and a determination under this paragraph must be certified by the actuary as being in accordance with that guidance.
(4) For the purposes of these Regulations, an employment-cessation event occurs in relation to an employer if he ceases to be an employer employing persons in the description of employment to which the scheme relates at a time when at least one other person continues to employ such persons.
(5) For the purposes of paragraph (1), the cessation expenses attributable to an employer are all expenses which, in the opinion of the trustees or managers of the scheme, are likely to be incurred in connection with the employment-cessation event occurring in relation to the employer.
7.—(1) This regulation applies where—
(a)Article 75 applies to a trust scheme with the modifications referred to in regulation 6, and
(b)as a result of the occurrence of an employment-cessation event in relation to an employer, a debt (“the cessation debt”) calculated on the basis of assets and liabilities valued in accordance with regulation 5 is treated as due from the employer (“the cessation employer”) under Article 75(4).
(2) If the cessation employer notifies the Authority in writing that he proposes to enter into a withdrawal arrangement—
(a)the Authority may issue a direction that the cessation debt is to be unenforceable for such period as the Authority may specify in the direction, and where such a direction has been issued the debt is unenforceable for that period, and
(b)the Authority may issue a direction that if an approved withdrawal arrangement has come into force within that period, Article 75 is to apply in the case of the employment-cessation event with the modification specified in paragraph (3) instead of the modification referred to in regulation 6(1)(e)(ii), and where such a direction has been issued and such an arrangement has so come into force, that modification so applies.
(3) The modification is that Article 75 has effect as if the reference in Article 75(4) to an amount equal to the difference being treated as a debt due from the employer were a reference to—
(a)amount A being treated as a debt due from the employer, and
(b)unless and until the Authority issue a direction that it is not to be so treated, amount B being treated as a debt due from the guarantors at the guarantee time for which (if there is more than one guarantor) they are jointly or, if the approved withdrawal arrangement so provides, jointly and severally liable,
where amount A is calculated in accordance with regulation 7A and amount B is calculated in accordance with regulation 7B.
(4) In this regulation—
“the guarantee time” means the earliest time when an event specified in paragraph 1(3) of Schedule 1A occurs;
“the guarantors” means such one or more of the parties to the approved withdrawal arrangement as are specified in the arrangement as the persons who are the guarantors for the purposes of this regulation.
(5) The Authority may issue a direction extending the period mentioned in paragraph (2)(a) by such further period as they may specify (so that the debt is unenforceable for the extended period).
(6) The Authority may only issue a direction under paragraph (3)(b)—
(a)before the guarantee time, and
(b)if the Authority consider that the approved withdrawal arrangement is no longer required.
(7) Schedule 1A applies for the purpose of making further provision in cases where this regulation applies; and in that Schedule and regulations 7A and 7B “the cessation employer” has the same meaning as in this regulation.]
Textual Amendments
F1Regs. 7-7B substituted for reg. 7 (2.9.2005) by The Occupational Pension Schemes (Employer Debt, etc.) (Amendment) Regulations (Northern Ireland) 2005 (S.R. 2005/387), regs. 1(1), 2(5) (with reg. 1(2))
7A.—(1) For the purposes of regulation 7(3), amount A depends on whether or not a debt (a “scheme funding basis debt”) would have been treated as due from the cessation employer under Article 75(4) if—
(a)regulation 5 had applied with the modifications specified in paragraph (4), and
(b)Article 75(4) had applied in accordance with regulation 6(1)(d) and (e) but subject to the modifications of regulation 6 specified in paragraph (5) (instead of in accordance with the modification specified in regulation 7(3)).
(2) If a debt would have been so treated, amount A is the sum of the scheme funding basis debt and the cessation expenses attributable to the employer.
(3) If a debt would not have been so treated, amount A is equal to the amount of the cessation expenses attributable to the employer.
(4) The modifications of regulation 5 are that—
(a)paragraphs (1)(a) and (2) and the references to those provisions in paragraph (1)(b), (c) and (d) (by virtue of which liabilities for pensions and other benefits are to be valued on the assumption that they will be discharged by the purchase of annuities) are omitted;
(b)paragraph (3) and the references to that paragraph in paragraph (1)(c) and (d) (by virtue of which winding up expenses are to be taken into account) are omitted, and
(c)in paragraph (5) for “for the purposes of Article 75(2) and (4)” there are substituted “for the purposes of Article 75(2) and for the purposes of Article 75(4) where no approved withdrawal arrangement has been entered into by the employer”.
(5) The modifications of regulation 6 are that—
(a)in paragraph (1)(e) for head (ii) there is substituted the following head—
“(ii)in a case where the difference is ascertained immediately before an employment-cessation event occurs in relation to the employer, a reference to an amount equal to the employer’s share of the difference, less the relevant transferred liabilities deduction, being treated as a debt due from the employer;”;
(b)after paragraph (5) there is added the following paragraph—
“(6) In this regulation “the relevant transferred liabilities deduction” means the amount of any relevant transferred liabilities, less the value of the corresponding assets.
(7) For the purposes of paragraph (6)—
(a)“corresponding assets”, in relation to relevant transferred liabilities, means the assets transferred from the scheme in connection with the transfer from the scheme of those liabilities, and
(b)the value of the corresponding assets is to be determined—
(i)in the case of corresponding assets that are assets of the scheme at the applicable time, as at that time, and
(ii)in the case of corresponding assets that are not assets of the scheme at that time, as at the date of the transfer of the assets.
(8) For the purposes of paragraph (6)—
(a)“relevant transferred liabilities” means liabilities in respect of members—
(i)which are transferred from the scheme in circumstances where the conditions set out in regulation 12(2)(a) or (b) and (3) of the Occupational Pension Schemes (Preservation of Benefit) Regulations (Northern Ireland) 1991 (transfer of member’s accrued rights without consent) are met;
(ii)which are so transferred during the period beginning with the applicable time and ending with the date on which the approved withdrawal arrangement is approved (“the relevant period”);
(iii)the transfer of which reduces the amount of the scheme’s liabilities attributable to employment with the employer in relation to whom the employment-cessation event has occurred, and
(iv)in connection with the transfer of which there is a transfer of corresponding assets during the relevant period; and
(b)the amount of the relevant transferred liabilities is to be calculated in accordance with regulation 5 as modified by regulation 7A(4).”.
(6) The value of the assets and the amount of the liabilities of a scheme which are to be taken into account for the purposes of determining whether a scheme funding basis debt would have been treated as due as mentioned in paragraph (1) must be certified by the actuary in the form set out in Schedule 1B, but—
(a)if the actuary is of the opinion that the value of the assets of the scheme was not less than the amount of the liabilities of the scheme—
(i)substituting in the first sentence of the comparison of value of scheme assets with amount of scheme liabilities for “was less” the words “was not less”, and
(ii)omitting the last sentence of that comparison, and
(b)if the scheme is being wound up on the date as at which the valuation is made, omitting from the Note the words from “if the scheme” to the end.
(7) In this regulation “the cessation expenses attributable to the employer” has the meaning given by regulation 6(5).
Textual Amendments
F1Regs. 7-7B substituted for reg. 7 (2.9.2005) by The Occupational Pension Schemes (Employer Debt, etc.) (Amendment) Regulations (Northern Ireland) 2005 (S.R. 2005/387), regs. 1(1), 2(5) (with reg. 1(2))
7B.—(1) For the purposes of regulation 7(3), amount B depends on whether the approved withdrawal arrangement provides for amount B to be the amount provided for under paragraph (2).
(2) If the approved withdrawal arrangement so provides, amount B is equal to the amount (if any) that would be the amount of the debt due from the cessation employer under Article 75(4) if—
(a)the employment-cessation event had occurred at the guarantee time;
(b)the cessation employer had not entered into an approved withdrawal arrangement, and
(c)there were no cessation expenses attributable to the employer.
(3) If the approved withdrawal arrangement does not provide for amount B to be the amount provided for under paragraph (2), amount B is equal to the amount that would be the amount treated as due from the cessation employer under Article 75(4) if the cessation employer had not entered into an approved withdrawal arrangement, less the sum of—
(a)the amount that is amount A for the purposes of regulation 7(3);
(b)if the amount that the approved withdrawal arrangement provides for the cessation employer to pay exceeds that amount, an amount equal to the excess, and
(c)the relevant transferred liabilities deduction.
(4) The value of the assets and the amount of the liabilities of a scheme which are to be taken into account for the purposes of determining the amount (if any) that would be the amount of the debt due from the cessation employer under Article 75(4) in the case mentioned in paragraph (2) must be certified by the actuary in the form set out in Schedule 1, but—
(a)substituting for the reference to regulation 5 a reference to paragraph (2) of this regulation;
(b)if the actuary is of the opinion that the value of the assets of the scheme was not less than the amount of the liabilities of the scheme—
(i)substituting in the first sentence of the comparison of value of scheme assets with amount of scheme liabilities for “was less” the words “was not less”, and
(ii)omitting the last sentence of that comparison, and
(c)if the scheme is being wound up on the date as at which the valuation is made, omitting from the Note the words from “if the scheme” to the end.
(5) In this regulation—
“the cessation expenses attributable to the employer” has the meaning given by regulation 6(5);
“the relevant transferred liabilities deduction” has the meaning given by regulation 6(6), as inserted by the modification of regulation 6 made by regulation 7A(5)(b), except that for the purposes of this regulation the amount of the relevant transferred liabilities is to be calculated in accordance with regulation 5 without the modifications made by regulation 7A(4).]
Textual Amendments
F1Regs. 7-7B substituted for reg. 7 (2.9.2005) by The Occupational Pension Schemes (Employer Debt, etc.) (Amendment) Regulations (Northern Ireland) 2005 (S.R. 2005/387), regs. 1(1), 2(5) (with reg. 1(2))
8.—(1) In its application to a multi-employer scheme –
(a)which is divided into 2 or more sections, and
(b)the provisions of which are such that the sections meet conditions A and B,
Article 75 and the provisions of these Regulations (apart from this regulation) shall apply as if each section of the scheme were a separate scheme.
(2) Condition A is that contributions payable to the scheme by an employer, or by a member in employment under that employer, are allocated to that employer’s section (or, if more than one section applies to that employer, to the section which is appropriate in respect of the employment in question).
(3) Condition B is that a specified part or proportion of the assets of the scheme is attributable to each section and cannot be used for the purposes of any other section.
(4) In their application to a scheme –
(a)which has been such a scheme as is mentioned in paragraph (1);
(b)which is divided into 2 or more sections, one or more of which apply only to members who are not in pensionable service under the section;
(c)the provisions of which have not been amended so as to prevent conditions A and B being met in relation to 2 or more sections, and
(d)in relation to one or more sections of which those conditions have ceased to be met at any time by reason only of there being no members in pensionable service under the section and no contributions which are to be allocated to it,
Article 75 and the provisions of these Regulations (apart from this paragraph) shall apply as if any section in relation to which those conditions have ceased to be met were a separate scheme.
(5) For the purposes of paragraphs (1) to (4), any provisions of the scheme by virtue of which contributions or transfers of assets may be made to make provision for death benefits are disregarded.
(6) But if paragraph (1) or (4) applies and, by virtue of any provisions of the scheme, contributions or transfers of assets to make such provision are made to a section (“the death benefits section”) the assets of which may only be applied for the provision of death benefits, the death benefits section is also to be treated as a separate scheme.
(7) For the purpose of this regulation, any provisions of the scheme by virtue of which assets attributable to one section may on the winding up of the scheme or a section be used for the purposes of another section are disregarded.