New Zealand Acts

KIWISAVER AMENDMENT ACT 2011 - SECT 16

16 New headings and sections 119 to 119L substituted

Sections 119 to 122 are repealed and the following headings and sections substituted:

119 Content of trust deeds

1 The trust deed of a KiwiSaver scheme must specify the following matters:

a) the conditions of entry of members to the scheme:

b) the conditions of termination of membership of the scheme:

c) the contributions payable:

d) the conditions under which benefits become payable and the way in which the benefits will be determined:

e) the number of trustees, and provision for their appointment, removal from office, and retirement:

f) the circumstances in which the scheme may be wound up and the way in which the assets of the scheme are to be distributed in the event of a winding-up:

g) in the case of a KiwiSaver scheme other than a restricted scheme, provision for the appointment, removal from office, and retirement of the manager.

2 If other provisions of this Act expressly set out requirements in relation to the matters set out in subsection (1) (for example, by terms implied by the KiwiSaver scheme rules or provision for how a scheme must be wound up),—

a) the trust deed is subject to those provisions; and

b) subsection (1) is satisfied by reference to the relevant provisions in this Act in respect of those matters.

Note: 1989 No 10 s 7

119A Implied provision as to amendments reducing accrued benefits, etc

1 There is implied in the trust deed of a KiwiSaver scheme a provision that an amendment requiring consent must not be made unless the trustees (in the case of a restricted KiwiSaver scheme) have, or the manager (in the case of any other KiwiSaver scheme) has, obtained the written consent of every member who would be adversely affected by the amendment.

2 In subsection (1),
"amendment requiring consent" means an amendment of the trust deed that would have the effect of—

a) reducing, postponing, or otherwise adversely affecting the benefits, whether vested, contingent, or discretionary, that may in due course flow from, or are attributable to, membership of the scheme up to the date the amendment is made; or

b) removing a right of members to participate in the management of the scheme; or

c) increasing the contributions, fees, or charges payable by a member; or

d) providing for the reversion of any assets of the scheme to an employer to a greater extent than already provided for in the trust deed.

Note: 1989 No 10 s 9

119B Application of sections 119C to 119I

Sections 119C to 119I apply to transfers or proposed transfers between KiwiSaver schemes, other than transfers to which subpart 3 of Part 2 applies.

119C Implied provision as to transfer of members, etc

1 There is implied in the trust deed of a KiwiSaver scheme a provision that no member of the scheme will be transferred to another KiwiSaver scheme, or to another section of the same scheme, unless the trustees (in the case of a restricted KiwiSaver scheme) have, or the manager (in the case of any other KiwiSaver scheme) has, obtained the written consent of the member concerned.

2 This section is subject to section 119G .

Note: 1989 No 10 s 9B(1), (1A), (5)

119D Procedural requirements in case of certain transfers

1 This section and sections 119E to 119H apply if it is proposed to transfer (whether at the same time or over an extended period) all or a substantial number of members from a KiwiSaver scheme to another KiwiSaver scheme.

2 The manager of each KiwiSaver scheme affected, other than a restricted scheme, must, at least 1 month before the date on which the manager requires members to give their written consent to a proposed transfer,—

a) consult the trustee of the scheme on the proposed transfer; and

b) notify the members described in subsection (4) in writing of—

i) the proposed transfer and its implications for members; and

ii) the date on which the proposed transfer is to occur; and

iii) the date by which the written consent of members to the proposed transfer must be received by the manager; and

iv) any comments concerning the proposed transfer made by the trustee as a result of consultation under paragraph (a); and

v) the fact that a copy of the notice has been forwarded to the FMA; and

c) notify the FMA in writing of the matters described in paragraph (b)(i) to (iv).

3 The trustees of each restricted KiwiSaver scheme affected must, at least 1 month before the date on which they require members to give their written consent to a proposed transfer,—

a) notify the members described in subsection (4) in writing of—

i) the proposed transfer and its implications for members; and

ii) the date on which the proposed transfer is to occur; and

iii) the date by which the written consent of members to the proposed transfer must be received by the trustees; and

iv) the fact that a copy of the notice has been forwarded to the FMA; and

b) notify the FMA in writing of the matters described in paragraph (a)(i) to (iii).

4 The persons who must be notified under subsections (2)(b) and (3)(a) are all members of the scheme other than those members who, in the opinion of the FMA, are not likely to be materially affected by the proposed transfer.

5 Giving notice under this section does not derogate from the need to comply with any other provision of this Act.

6 For the purposes of this section and section 119E , references to the transfer of members from one scheme to another include references to transfers of members from one section of a scheme to another section of the same scheme.

Note: 1989 No 10 s 9B(2)–(3), (5)

119E When requirements of section 119D not met

For the purposes of section 169, and without limiting that section, it is a ground for the FMA to have reasonable cause to believe that a particular scheme to which members are transferred fails to meet the requirements of section 119D if,—

a) over any 12-month period, either—

i) 20% or more of the members of another KiwiSaver scheme are transferred to the particular KiwiSaver scheme; or

ii) the number of members of the particular KiwiSaver scheme is increased by 20% or more by reason of a transfer of members from another KiwiSaver scheme; and

b) the members of the particular KiwiSaver scheme who are described in section 119D(4) have not been notified of the transfer, or any notification given has not adequately set out the implications of the transfer.

Note: 1989 No 10 s 9B(4)

119F Information required in case of transfer under section 119D

In respect of a transfer to which section 119D applies, the provider of the scheme from which a member (
"A" ) transfers must give the following information to the provider of the scheme to which A transfers:

a) A's name, address, and date of birth:

b) A's tax file number:

c) the date on which A first became a member of a KiwiSaver scheme:

d) if A is an employee,—

i) the name and address of each of A's employers; and

ii) the rate at which A intends each of those employers to make deductions of contributions from his or her salary or wages:

e) the name, address, and tax file number of both the provider and the scheme:

f) any other information that the Commissioner requires the provider to give to the provider of the scheme to which A transfers.

119G When FMA may approve section 119D transfers without consent of members

1 In respect of a transfer to which section 119D applies, the requirement in section 119C to obtain the written consent of all or any of the members of a scheme does not apply if the FMA approves the transfer under this section.

2 The FMA may approve the transfer if the FMA is satisfied that—

a) the terms and conditions of the scheme to which the members are to be transferred (the
"new scheme" ) are no less favourable to members than the terms and conditions of the scheme from which they are being transferred (the
"old scheme" ); and

b) the transfer is otherwise reasonable in all the circumstances (including having regard to the value of the assets transferred from the old scheme to the new scheme); and

c) the procedure in section 119H has been followed.

3 The FMA may decline to approve a transfer if the FMA considers that the transfer would adversely affect the interests of all or any of the members of the old scheme in a material way.

4 In determining whether subsection (2) or (3) applies, the FMA may—

a) have regard to the likely effect of the new scheme on benefits to members as a whole; and

b) have regard to any other matter that the FMA considers relevant.

5 For a transfer that the FMA has approved,—

a) each relevant member of the old scheme is treated as offering to be a member of the new scheme on the terms and conditions for that new scheme; and

b) the provider of the new scheme is treated as accepting the member's offer.

6 The FMA may publish, in any form that the FMA thinks fit, guidance on matters that the FMA considers relevant under this section (including principles that the FMA may use to decide whether to approve a transfer).

Note: 1989 No 10 s 9BAA

119H How approval under section 119G may be granted

1 An application for approval under section 119G may be made by—

a) the trustees (in the case of a restricted KiwiSaver scheme) of the old scheme or the new scheme:

b) the trustee or the manager (in the case of any other KiwiSaver scheme) of the old scheme or the new scheme:

c) a relevant employer.

2 The FMA may accept an application for approval if it is satisfied that—

a) it is reasonable in all of the circumstances of the case that the person have standing to make the application; and

b) the person falls within a class specified in guidelines published by the FMA (if any) for the purposes of this subsection.

3 The FMA may require the applicant to give the FMA, with the application or at any later time,—

a) a certificate, signed by a person of a class specified by the FMA, that the transfer meets the requirements of section 119G ; and

b) any other information about the new scheme, the old scheme, or the transfer.

4 The applicant must give notice to every member of the old scheme—

a) that the applicant has applied for approval to transfer the members without their written consent; and

b) that the member may make submissions to the FMA about the transfer.

5 The FMA must have regard to submissions before deciding whether or not to give approval.

6 The FMA may give approval subject to any terms and conditions that the FMA may specify in the notice of approval, and the approval is effective only if the transfer is carried out in accordance with those terms and conditions.

Note: 1989 No 10 s 9BAB

119I FMA may exempt trustees and managers from requirement to obtain written consent of members

The FMA may exempt the trustees of a restricted KiwiSaver scheme or the manager of any other KiwiSaver scheme from the requirement to obtain the written consent of all members of the scheme who are required to give consent under section 119A or 119C if the FMA is satisfied that—

a) the trustees have not, or the manager has not, been able to contact all of those members despite having taken all reasonable steps to do so; and

b) the proposed action is not unreasonable in relation to the best interests of 1 or more of those members who have not been contacted.

Note: 1989 No 10 s 9BA

119J Application and enforcement of implied provisions

1 Sections 119A to 119I, 129A, and 129B apply notwithstanding anything to the contrary in the trust deed.

2 Every provision implied in a trust deed in accordance with sections 119A to 119I, 129A, and 129B is enforceable by the manager, the trustees, or a member of the scheme.

Note: 1989 No 10 s 11

119K Prospective members' rights to information

1 A person who is eligible to become a member of a KiwiSaver scheme has the right, on request,—

a) to look at, at any reasonable time, a copy of the trust deed:

b) to receive, on payment of a reasonable fee, a copy of the trust deed:

c) to receive, free of charge, a copy of the annual financial statements and any auditor's report.

2 In subsection (1),
"trust deed" does not include a participation agreement that would not relate to the person if the person were to become a member of the scheme.

3 Nothing in subsection (1) limits any provision in the Securities Act 1978.

Note: 1989 No 10 s 15A

119L Members' rights to information

1 Each member of a KiwiSaver scheme must—

a) be given, within 6 months of the close of each financial year of the scheme, a copy of the annual report prepared under section 123 in respect of that year; and

b) have the right, on request,—

i) to receive an estimate of the member's benefits:

ii) to look at, at any reasonable time, a copy of the trust deed:

iii) to receive, on payment of a reasonable fee, a copy of the trust deed:

iv) to receive, free of charge, a copy of the annual financial statements and any auditor's report.

2 Subsection (1)(a) does not apply in relation to a member's account that is an inactive account unless the member requests a copy of the annual report.

3 The requirement in subsection (1)(a) is treated as met in respect of a member if––

a) the member has consented, in writing, to receive a World Wide Web uniform resource locator for access to an electronic copy of the annual report (the
"annual report URL" ); and

b) the member is given the annual report URL within 6 months of the close of the relevant financial year.

4 In subsection (1),
"trust deed" does not include a participation agreement that does not relate to the member.

5 Nothing in subsection (1) limits sections 54A, 54B, or any other provision of the Securities Act 1978.

Note: 1989 No 10 s 17

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