Proclamation Declaring the Agreement on Social Security Between Jersey, Guernsey and Canada in Force January 1, 1994 (SI/94-4)

Agreement on Social Security Between Jersey, Guernsey and Canada

The Parties to this Agreement, namely Jersey, Guernsey and Canada,

Being resolved to co-operate in the field of social security,

Have decided to conclude an agreement for this purpose, and

Have agreed as follows:

PART IGeneral Provisions

ARTICLE 1Definitions

• (1) For the purpose of this Agreement:

  benefit

  benefit means, in relation to a Party, any cash benefit, pension or allowance for which provision is made in the legislation of that Party and includes any increases applicable to such a cash benefit, pension or allowance;

  competent authority

  competent authority means, in relation to Jersey, the Social Security Committee of the States of Jersey; in relation to Guernsey, the States of Guernsey Insurance Authority; and, in relation to Canada, the Minister or Ministers responsible for the application of the legislation of Canada;

  contribution period

  contribution period means, in relation to Jersey and Guernsey, a period in respect of which contributions appropriate to the benefit in question are payable, have been paid or treated as paid under the legislation concerned;

  creditable period

  creditable period means, in relation to Jersey or Guernsey, a contribution period or an equivalent period; and, in relation to Canada, a period of contributions or residence used to acquire the right to a benefit under the legislation of Canada, and includes a period during which a disability pension is payable under the Canada Pension Plan;

  dependant

  dependant means, in relation to Jersey and Guernsey, a person who would be treated as such for the purpose of any claim for an increase of benefit in respect of a dependant under the legislation concerned;

  equivalent period

  equivalent period means, in relation to Jersey and Guernsey, a period for which contributions appropriate to the benefit in question have been credited under the legislation concerned;

  Guernsey

  Guernsey means the Islands of Guernsey, Alderney, Herm and Jethou;

  Government of Canada

  Government of Canada means the Government in its capacity as representative of Her Majesty the Queen in right of Canada and represented by the Minister of National Health and Welfare;

  Jersey

  Jersey means the Island of Jersey;

  legislation

  legislation means, in relation to a Party, such of the legislation specified in Article 2 as applies in the territory of that Party;

  Party

  Party means Jersey or Guernsey, as the case may be, or Canada.

• (2) Any term not defined in this Article has the meaning assigned to it in the applicable legislation.

• (3) Any reference in this Agreement to Article means an Article of this Agreement, and any reference to a paragraph is a reference to a paragraph of the Article in which the reference is made, unless it is stated to the contrary.

ARTICLE 2Legislation to Which the Agreement Applies

• (1) The provisions of this Agreement shall apply to the following legislation:

  • (a) in relation to Jersey, the Social Security (Jersey) Law, 1974, as it applies to old age pension, widow’s benefits, sickness benefit, invalidity benefit, disablement benefit and death grant;

  • (b) in relation to Guernsey, the Social Insurance (Guernsey) Law, 1978, as it applies to old age pension, widow’s benefit, sickness benefit, invalidity benefit, industrial injury benefit, industrial disablement benefit and death grant; and

  • (c) in relation to Canada:

    • (i) the Old Age Security Act and the regulations made thereunder, and

    • (ii) the Canada Pension Plan and the regulations made thereunder.

• (2) Subject to paragraphs (3) and (4), this Agreement shall also apply to the laws and regulations which amend, supplement, consolidate or supersede the legislation specified in paragraph (1).

• (3) This Agreement shall apply, unless the Parties agree otherwise, only to benefits under the legislation specified in paragraph (1) at the date of coming into force of this Agreement.

• (4) Subject to the provisions of Article 9, this Agreement shall not apply to any instrument on social security with a third State to which Jersey, Guernsey or Canada are party or to any laws or regulations which amend the legislation specified in paragraph (1) for the purpose of giving effect to such an instrument. However, nothing in this Agreement shall prevent Jersey, Guernsey or Canada taking into account under its legislation the provisions of any other instrument to which Jersey, Guernsey or Canada are party.

ARTICLE 3Persons to Whom the Agreement Applies

This Agreement shall apply to any person who is or who has been subject to the legislation of any Party, and to the dependants and survivors of such a person within the meaning of the applicable legislation of any Party.

ARTICLE 4Equality of Treatment

Any person who is or who has been subject to the legislation of any Party, and the dependants and survivors of such a person, shall, while in the territory of any other Party, be subject to the obligations of the legislation of either of the other Parties and shall be eligible for the benefits of that legislation under the same conditions as a person subject to the legislation of that other Party.

ARTICLE 5Export of Benefits

• (1) Unless otherwise provided in this Agreement, benefits payable under the legislation of a Party to any person described in Article 3, including benefits acquired by virtue of this Agreement, shall not be subject to any reduction, modification, suspension, cancellation or confiscation by reason only of the fact that the person resides in the territory of another Party, and they shall be paid in the territory of that other Party.

• (2) Benefits payable under this Agreement to a person who is or who has been subject to the legislation of more than one Party, or to the dependants or survivors of such a person, shall be paid in the territory of a third State.

PART IIProvisions Relating to the Applicable Legislation

ARTICLE 6Rules Regarding Coverage

• (1) Subject to the following provisions of this Article,

  • (a) an employed person who works in the territory of a Party shall, in respect of that work, be subject only to the legislation of that Party; and

  • (b) a self-employed person who ordinarily resides in the territory of a Party and who works for his or her own account in the territory of another Party or in the territories of two or all Parties shall, in respect of that work, be subject only to the legislation of the first Party.

• (2) An employed person who is subject to the legislation of a Party and who performs services in the territory of another Party for the same employer shall, in respect of the continuation of the performance of those services, be subject only to the legislation of the former Party as though those services were performed in its territory, provided that the detached employment does not last for more than 36 months. In the case of such a detachment, this coverage may be maintained for more than 36 months only with the prior consent of the competent authorities of both Parties concerned.

• (3) A person who, but for this Agreement, would be subject to the legislation of more than one Party in respect of employment as a member of the crew of a ship shall, in respect of that employment, be subject only to the legislation of the Party in which he or she is ordinarily resident.

• (4) The competent authorities of the Parties concerned may, by common agreement between any two or more of them, modify the application of the provisions of this Article with respect to any person or categories of persons.

ARTICLE 7Definition of Certain Periods of Residence with Respect to the Legislation of Canada

For the purpose of calculating the amount of benefits under the Old Age Security Act:

• (a) if a person is subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada during any period of residence in the territory of another Party, that period shall be considered as a period of residence in Canada for that person as well as for that person’s spouse and dependants who reside with him or her and who are not subject to the legislation of another Party by reason of employment; and

• (b) if a person is subject to the legislation of another Party during any period of residence in the territory of Canada, that period shall not be considered as a period of residence in Canada for that person and for that person’s spouse and dependants who reside with him or her and who are not subject to the Canada Pension Plan or the comprehensive pension plan of a province of Canada by reason of employment.

PART IIIProvisions Relating to Benefits

CHAPTER 1Totalizing

ARTICLE 8Creditable Periods under the Legislation of Jersey, Guernsey and Canada

• (1) If a person is not entitled to the payment of a benefit because he or she has not accumulated sufficient creditable periods under the legislation of a Party, the entitlement of that person to the payment of that benefit shall be determined by totalizing these periods and those specified in paragraphs (2) to (5) provided that the periods do not overlap.

• (2) For the purposes of determining entitlement under the legislation of Jersey:

  • (a) to old age pension or widow’s benefits, a year which is a creditable period under the Canada Pension Plan shall be considered as an annual contribution factor of 1.00; and

  • (b) to old age pension, a week which is a creditable period under the Old Age Security Act of Canada and which is not part of a creditable period under the Canada Pension Plan shall be considered as a weekly contribution factor of 0.0193.

• (3) For the purposes of determining entitlement under the legislation of Guernsey:

  • (a) to old age pension or widow’s benefit, a year which is a creditable period under the Canada Pension Plan shall be considered as 52 weeks of contributions; and

  • (b) to old age pension, a week which is a creditable period under the Old Age Security Act of Canada and which is not part of a creditable period under the Canada Pension Plan shall be considered as a week of contributions.

• (4) For the purposes of determining entitlement under the legislation of Canada:

  • (a) to a benefit under the Old Age Security Act, a creditable period under the legislation of another Party, or a period of residence in the territory of another Party after the age at which periods of residence in Canada are creditable for purposes of that Act, shall be considered as a period of residence in the territory of Canada; and

  • (b) to a benefit under the Canada Pension Plan, a contribution year including an annual contribution factor of at least 0.25 under the legislation of Jersey, or at least 13 weeks of contributions under the legislation of Guernsey, shall be considered as a year for which contributions have been made under the Canada Pension Plan.

• (5) For the purposes of applying the provisions of Article 14, the competent authority of Jersey or Guernsey shall take account only of creditable periods completed under the legislation of any Party which would be taken into account for the determination of pensions under the legislation of Jersey or Guernsey if they were completed under the appropriate legislation and shall, where appropriate, take into account in accordance with that legislation creditable periods completed by a spouse, or former spouse, as the case may be.

ARTICLE 9Periods under the Legislation of a Third State

Notwithstanding the provisions of paragraph (4) of Article 2, if a person is not entitled to the payment of a benefit on the basis of the creditable periods under the legislation of the Parties, totalized as provided in Article 8, entitlement to the payment of that benefit shall be determined by totalizing these periods and creditable periods under the legislation of a third State with which either Jersey or Guernsey, as the case may be, and Canada are bound by social security instruments which provide for totalizing periods.

ARTICLE 10Minimum Period to be Totalized

Notwithstanding any other provision of this Agreement, if the total duration of the creditable periods accumulated under the legislation of a Party is less than 52 weeks and if, taking into account only those periods, no right to a benefit exists under that legislation, the competent authority of that Party shall not be required to award benefits in respect of those periods by virtue of this Agreement.

CHAPTER 2Benefits Under the Legislation of Canada

ARTICLE 11Benefits under the Old Age Security Act

• (1) If a person is entitled to a pension or a spouse’s allowance solely through the application of the totalizing provisions of Articles 8 and 9, the competent authority of Canada shall calculate the amount of the pension or spouse’s allowance payable to that person in conformity with the provisions of the Old Age Security Act governing the payment of a partial pension or a spouse’s allowance, exclusively on the basis of the periods of residence in Canada which may be considered under that Act.

• (2) Paragraph (1) shall also apply to a person who is entitled to a pension in Canada but who has not resided in Canada for the minimum period required by the Old Age Security Act for entitlement to a pension outside Canada.

• (3) Notwithstanding any other provision of this Agreement:

  • (a) the old age security pension shall be paid to a person who is outside Canada only if that person’s periods of residence, when totalized as provided in Articles 8 and 9, are at least equal to the minimum period of residence in Canada required by the Old Age Security Act for entitlement to a pension outside Canada; and

  • (b) the spouse’s allowance and the guaranteed income supplement shall be paid to a person who is outside Canada only to the extent permitted by the Old Age Security Act.

ARTICLE 12Benefits under the Canada Pension Plan

If a person is entitled to a benefit solely through the application of the totalizing provisions of Articles 8 and 9, the competent authority of Canada shall calculate the amount of benefit payable in the following manner:

• (a) the earnings-related portion of the benefit shall be determined in conformity with the provisions of the Canada Pension Plan, exclusively on the basis of the pensionable earnings under that Plan; and

• (b) the flat-rate portion of the benefit shall be determined by multiplying (i) by (ii):

  • (i) the amount of the flat-rate portion of the benefit determined in conformity with the provisions of the Canada Pension Plan;

  • (ii) the fraction which represents the ratio of the periods of contributions to the Canada Pension Plan in relation to the minimum qualifying period required under that Plan to establish entitlement to that benefit, but in no case shall that fraction exceed the value of one.

CHAPTER 3Benefits Under the Legislation of Jersey and Guernsey

ARTICLE 13General Provisions on Old Age Pension and Widow’s Benefits

• (1) Subject to the provisions of paragraph (2), where a person is entitled to an old age pension under the legislation of Jersey or Guernsey otherwise than by virtue of the provisions of this Agreement, that pension shall be payable and the provisions of Article 14 shall not apply.

• (2) Notwithstanding paragraph (1), a married woman entitled to an old age pension solely on her husband’s contributions under the legislation of Jersey or Guernsey shall also be entitled to have any pension entitlement based entirely on her own insurance determined in accordance with the provisions of Article 14. Such a married woman shall be entitled to receive only the benefit of her choice.

ARTICLE 14Pro-Rata Pensions

• (1) The provisions of this Article shall apply for the purpose of determining entitlement to an old age pension under the legislation of Jersey or Guernsey in respect of a person who has no entitlement in accordance with the provisions of Article 13.

• (2) In accordance with the provisions of Articles 8 to 10, the competent authority of a Party shall determine:

  • (a) the amount of the theoretical pension which would be payable if all creditable periods completed under the legislation of all Parties had been completed under its own legislation;

  • (b) the proportion of such theoretical pension which bears the same relation to the whole as the total of the creditable periods completed under the legislation of that Party bears to the total of all the creditable periods which he or she completed under the legislation of all Parties.

  The proportionate amount thus calculated shall be the rate of pension actually payable by the competent authority.

ARTICLE 15Widow’s Benefit

• (1) The provisions of Articles 13 and 14 shall also apply, with such modifications as the differing nature of the benefits shall require, to widow’s benefit.

• (2) Where widow’s benefit would be payable under the legislation of one Party if a child were in the territory of that Party, it shall be payable while the child is in the territory of another Party.

ARTICLE 16Invalidity Benefit

• (1) Notwithstanding the definitions in paragraph (1) of Article 1, for the purpose of this Article:

  creditable period under the legislation of Canada

  creditable period under the legislation of Canada means a period of contributions under the Canada Pension Plan, and includes a period during which a disability pension is payable under that Plan;

  first contribution condition for sickness benefit

  first contribution condition for sickness benefit means:

  • (i) in relation to Jersey, that a person has paid contributions prior to the end of the relevant quarter and the annual contribution factor derived from those contributions is not less than 0.25;

  • (ii) in relation to Guernsey, that a person has paid at least 26 reckonable contributions since 4 January 1965;

  prescribed period

  prescribed period means, in relation to Jersey and Guernsey, the period commencing on the same date under the legislation of Jersey or Guernsey, as the case may be, as the relevant period for the purposes of old age pension and ending on 31 December next preceding the date on which entitlement to invalidity benefit first arose;

  qualifying period for invalidity benefit

  qualifying period for invalidity benefit means:

  • (i) in relation to Jersey, a continuous period of incapacity of 364 days under the legislation of Jersey;

  • (ii) in relation to Guernsey, a continuous period of incapacity of 156 days, excluding Sundays, under the legislation of Guernsey;

  second contribution condition for sickness benefit

  second contribution condition for sickness benefit means:

  • (i) in relation to Jersey, that a person has paid or been credited with contributions in respect of the relevant quarter and the quarterly contribution factor derived from those contributions is 1.00;

  • (ii) in relation to Guernsey, that a person has paid or been credited with at least 26 contributions in the relevant contribution year.

• (2) Notwithstanding any other provision of this Agreement, invalidity benefit shall be payable under the legislation of Jersey or Guernsey only in accordance with the provisions of this Article.

• (3) For the purpose of satisfying the qualifying period for invalidity benefits, a person who:

  • (a) is in Canada; and

  • (b) has satisfied the first contribution condition for sickness benefit using contributions under the legislation of Jersey or Guernsey only, as the case may be; and

  • (c) has satisfied the second contribution condition for sickness benefit using creditable periods under the legislation of any Party; and

  • (d) is incapable of work, and has been so incapable throughout the qualifying period for invalidity benefit;

  shall be treated as if he had been entitled to sickness benefit throughout that period.

• (4) Where a person has satisfied the conditions set out in paragraph (3) or (5), the competent authority of Guernsey shall:

  • (a) deem the contribution conditions for the payment of invalidity benefit satisfied; and

  • (b) calculate the amount of invalidity benefit to be paid, subject to paragraph (7), as being the proportion, not exceeding 100%, of the standard rate which the total number of contributions paid or credited under the legislation of Guernsey during the prescribed period bears to the product of the number of years in that period and 50, save that if the amount so calculated is less than one-twentieth of the standard rate no benefit shall be payable.

• (5) For the purpose of qualifying for invalidity benefit under the legislation of Guernsey, a person who:

  • (a) is in Guernsey; and

  • (b) has satisfied the first contribution condition for sickness benefit using contributions under the legislation of Guernsey only; and

  • (c) has satisfied the second contribution condition for sickness benefit using creditable periods under the legislation of any Party; and

  • (d) is incapable of work, and has been so incapable throughout the qualifying period for invalidity benefit;

  shall be treated as if he had been entitled to sickness benefit throughout that period.

• (6) For the purposes of paragraphs (3) and (5), a year which is a creditable period under the Canada Pension Plan shall be considered as 52 weeks of contributions under the legislation of Guernsey, provided that the periods do not overlap.

• (7) Where a person:

  • (a) is in Guernsey; and

  • (b) is entitled to invalidity benefit under the legislation of Guernsey solely through the application of paragraphs (4)(a) and (5), or has been entitled to such a benefit in relation to the claim in question solely through the application of those paragraphs; and

  • (c) is in receipt of a disability pension under the Canada Pension Plan, whether or not through the application of the provisions of this Agreement;

  the amount of the invalidity benefit payable under the legislation of Guernsey shall be reduced by the amount by which the aggregate of both benefits exceeds the standard rate of invalidity benefit under the legislation of Guernsey.

• (8) Where a person has satisfied the conditions set out in paragraph (3), the competent authority of Jersey shall determine the actual rate of invalidity benefit payable as the amount that bears the same relation to the standard rate of benefit as the life average contribution factor bears to 1.00 over the prescribed period, except that no benefit shall be payable where the factor is less than 0.1.

• (9) For the purposes of paragraph (3), a year which is a creditable period under the Canada Pension Plan shall be considered as an annual contribution factor of 1.00 under the legislation of Jersey.

• (10) Where a person who is in Jersey is entitled to invalidity benefit under the legislation of Jersey otherwise than by virtue of the provisions of this Agreement, that benefit shall be payable.

• (11) No person in relation to whom invalidity benefit is payable under the provisions of this Agreement shall receive a contribution credit from Jersey or Guernsey unless present in Jersey or Guernsey, as the case may be.

ARTICLE 17Death Grant

Where a person dies in Canada, his or her death shall be treated, for the purpose of any claim for a death grant under the legislation of Jersey or Guernsey, as if it had occurred in Jersey or Guernsey, as the case may be.

PART IVAdministrative and Transitional Provisions

ARTICLE 18Administrative Arrangement

The competent authorities shall establish, by means of an administrative arrangement, the measures necessary for the application of this Agreement.

ARTICLE 19Exchange of Information and Mutual Assistance

• (1) The competent authorities shall:

  • (a) to the extent permitted by the legislation which they administer, communicate to one another any information necessary for the application of this Agreement;

  • (b) lend their good offices and furnish assistance to one another with regard to the determination or payment of any benefit under this Agreement, or the legislation to which this Agreement applies, as if the matter involved the application of their own legislation; and

  • (c) communicate to one another, as soon as possible, all information about the measures taken by them for the application of this Agreement or about changes in their respective legislation insofar as these changes affect the application of this Agreement.

• (2) The assistance referred to in subparagraph (1)(b) shall be provided free of charge, subject to any provisions contained in an administrative arrangement concluded under Article 18 for the reimbursement of certain types of expenses.

• (3) Unless disclosure is required under the legislation of a Party, any information about an individual which is transmitted in accordance with this Agreement to that Party by another Party is confidential and shall be used only for the purposes of implementing this Agreement and the legislation to which this Agreement applies.

ARTICLE 20Exemption or Reduction of Taxes, Dues, Fees or Charges

• (1) Any exemption from or reduction of taxes, legal dues, consular fees or administrative charges for which provision is made in the legislation of a Party in connection with the issuing of any certificate or document required to be produced for the application of that legislation shall be extended to certificates or documents required to be produced for the application of the legislation of another Party.

• (2) Any documents of an official nature required to be produced for the application of this Agreement shall be exempt from any authentication by diplomatic or consular authorities and similar formality.

ARTICLE 21Language of Communication

For the application of this Agreement, the competent authorities may communicate directly with one another in any official language of any Party.

ARTICLE 22Submitting Claims, Notices or Appeals

• (1) Any claim, notice or appeal concerning the determination or payment of a benefit under the legislation of a Party which should, for the purposes of that legislation, have been presented within a prescribed period to a competent authority of that Party, but which is presented within the same period to a competent authority of another Party, shall be treated as if it had been presented to the competent authority of the first Party.

• (2) A claim for a benefit under the legislation of a Party made after the date of entry into force of this Agreement shall be deemed to be a claim for the corresponding benefit under the legislation of another Party, provided that the claimant:

  • (a) requests that it be considered a claim under the legislation of that other Party, or

  • (b) provides information at the time of presenting the claim which indicates that creditable periods have been completed under the legislation of that other Party.

• (3) In any case to which paragraph (1) or (2) applies, the competent authority to which the claim, notice or appeal has been submitted shall transmit it without delay to the competent authority of the other appropriate Party.

ARTICLE 23Payment of Benefits

• (1) The competent authority of a Party may discharge its obligations under this Agreement in the currency of that Party.

• (2) Benefits shall be paid to beneficiaries free from any deduction for administrative expenses that may be incurred by a Party in paying the benefits, except where charges arise from monetary conversion which may be payable by the beneficiary.

ARTICLE 24Resolution of Difficulties

• (1) The competent authorities shall resolve, to the extent possible, any difficulties which arise in interpreting or applying this Agreement according to its spirit and fundamental principles.

• (2) The Parties shall consult promptly at the request of any Party concerning matters which have not been resolved by the competent authorities in accordance with paragraph (1).

• (3) Any dispute between the Parties concerning the interpretation of this Agreement which has not been resolved or settled by consultation in accordance with paragraph (1) or (2) shall, at the request of any Party, be submitted for arbitration by an arbitral tribunal.

• (4) Unless the Parties mutually determine otherwise, the arbitral tribunal shall consist of three arbitrators, of whom each Party shall appoint one.

• (5) The arbitral tribunal shall determine its own procedures.

• (6) The decision of the arbitral tribunal shall be final and binding.

ARTICLE 25Understanding with a Province of Canada

The relevant authorities of Jersey and Guernsey and a province of Canada may conclude understandings concerning any social security matter within provincial jurisdiction in Canada insofar as those understandings are not inconsistent with the provisions of this Agreement.

ARTICLE 26Transitional Provisions

• (1) Any creditable period completed before the date of entry into force of this Agreement shall be taken into account for the purpose of determining the right to a benefit under this Agreement.

• (2) No provision of this Agreement shall confer any right to receive payment of a benefit for a period before the date of entry into force of the Agreement.

• (3) Subject to paragraph (2), a benefit, other than a lump sum payment, shall be paid under this Agreement in respect of events which happened before the date of entry into force of the Agreement.