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Fiji National Provident Fund (Amendment) Act 2005

FIJI ISLANDS

FIJI NATIONAL PROVIDENT FUND (AMENDMENT) ACT 2005

ACT NO. 10 OF 2005

I assent,

[L.S.]

J.I. ULUIVUDA
President

[29th June 2005]

AN ACT

TO AMEND THE FIJI NATIONAL PROVIDENT FUND ACT

ENACTED by the Parliament of the Fiji Islands-

Short title and commencement

1.-(1) This Act may be cited as the Fiji National Provident Fund (Amendment) Act 2005 and comes into force on a date appointed by the Minister by notice in the Gazette.

(2) The Minister may appoint different dates for the coming into force of different sections of this Act.

(3) In this Act, "principal Act" means the Fiji National Provident Fund Act (Cap. 219).

Section 2 amended

2. Section 2 of the principal Act is amended-

(a) in the definition of "employee"-

(i) by deleting ", nor under the provisions of section 29";

(ii) in paragraph (a) after "learnership," by inserting "or engaged under a contract for services or as an agent remunerated wholly or partly by commission,";

(b) in the definition of "employer", in paragraph (a), after "learnership" by inserting "or engaged under a contract for services or as an agent remunerated wholly or partly by commission";

(c) after the definition of "nominee", by inserting the following definition-

"property" includes money, goods, choses in action, land and every description of property, whether movable or immovable; and also obligations, easements and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as herein defined;";

(d) by repealing the definition of "wages" and substituting the following definition-

"wages" means all emoluments including allowances and commission, which would be due in money to an employee under his contract of service or for services or as an agent if no deductions were made therefrom, whether in pursuance of any law requiring or permitting the making of any deduction or otherwise or whether such emoluments have been agreed to be paid monthly, weekly, daily or otherwise:

Provided that payments made by an employer to an employee in reimbursement of sums necessarily expended by him on behalf of his employer for the purposes of his employment shall be deemed not to be wages.".

Section 7 amended

3. Section 7 of the principal Act is amended-

(a) by repealing subsection (2)(b) and substituting-

"(b) be invested in any property:";

(b) by adding after subsection (2) the following subsections-

"(3) The Board may vary an investment at any time.

(4) The Board shall-

(a) exercise the care, diligence and skill that a prudent person of business would exercise in managing the affairs of others;

(b) without limiting the matters that the Board may take into account, consider the following factors-

(i) the purposes of the Fund and the needs and circumstances of the members of the Fund;

(ii) the desirability of diversifying the investments of the Fund;

(iii) the nature of existing Fund investments;

(iv) the need to maintain the real value of the capital or income of the Fund;

(v) the risk of loss or depreciation of capital or income;

(vi) the potential for capital appreciation;

(vii) the likely income return and the timing of the income return;

(viii) the length of the term of the proposed investment;

(ix) the liquidity and marketability of the proposed investment during, and on the determination of, the term of the proposed investment;

(x) the aggregate value of the Fund;

(xi) the likelihood of inflation affecting the value of the proposed investment or other Fund investments;

(xii) costs in respect of making proposed investments including commissions, fees, charges and duties; and

(xiii) the outcome of a review of existing Fund investments.

(5) The Board may-

(a) obtain and consider independent and impartial advice reasonably required for the investment of the Fund or the management of investment from a person whom the Board reasonably believes to be competent to give the advice; and

(b) pay out of the Fund the reasonable costs of obtaining the advice.".

New sections 12A and 12B

4. The principal Act is amended by adding after section 12 the following sections-

"Part III of the Trustee Act does not apply.

12A. Part III of the Trustee Act (Cap. 65) does not apply to investments made under section 7.

Duties to be exercised by the Board as trustees

12B.-(1) The Board must abide by all rules and principles of law which impose any duty on a trustee exercising a power of investment including all rules and principles which impose-

(a) any duty to exercise the powers of a trustee in the best interests of all beneficiaries of the trust;

(b) any duty to act impartially towards beneficiaries and between different classes of beneficiaries; and

(c) any duty to take advice.

(2) If the Board is under a duty to take advice, the reasonable costs of obtaining the advice are payable out of the Fund.".

Section 13 amended

5. Section 13 of the principal Act is amended-

(a) in subsection (1)-

(i) at the end of paragraph (b) by deleting the full stop and inserting a semicolon;

(ii) after paragraph (b) by inserting the following paragraph-

"(c) the General Manager may, by notice in writing-

(i) direct any employer to pay contributions during every month on a date or dates or at periodic intervals or both as specified in the notice;

(ii) authorise any employer to pay contributions by a particular method, including direct electronic transfer from the employer's bank account.";

(b) after subsection (4) by inserting the following subsection-

"(5) The Board may, by order published in the Gazette, declare an amount not exceeding $2 per day as the contribution to be paid to the Fund under subsection (1) where the amount of wages payable to the employee by the employer cannot be otherwise determined:

Provided that if there is specified under written law-

(a) a maximum number of hours of work for that trade, industry or occupation; and

(b) a minimum hourly rate of remuneration paid to a class of workers engaged in or working in the trade, industry or occupation of the employer, either generally or in any area or areas of the Fiji Islands, and the employee falls within that class,

the rate paid to that class of workers and those hours must be used to calculate the contribution payable by the employer in respect of that employee.".

Section 15 amended

6. Section 15 of the principal Act is amended by deleting "paragraph (b) of subsection (2) of" after "under the provisions of" (where secondly occurring).

Section 16 amended

7. Section 16 of the principal Act is amended-

(a) by repealing subsection (2) and substituting the following subsection-

"(2) Persons exempted under paragraph (a) of section 64 or paragraphs 4 and 5 of the First Schedule are classes of persons not entitled to become voluntary contributors.";

(b) by repealing subsection (4).

Heading to Part VII substituted

8. The principal Act is amended by deleting the heading to Part VII and substituting the following-

"PART VII - ELECTIONS TO CONTRIBUTE".

Section 29 substituted

9. Section 29 of the principal Act is repealed and substituted by the following section-

"Option to become or remain a member of the Fund

29.-(1) Not later than 3 months after commencement of his employment in the Fiji Islands, a person employed in the Fiji Islands who is not a citizen of the Fiji Islands and his employer may, by notice in writing given to the General Manager, elect that the employee become a member of the Fund.

(2) Within 3 months of the commencement of the Fiji National Provident Fund (Amendment) Act 2005 a person employed in the Fiji Islands who is not a citizen of the Fiji Islands and who was a member of the Fund immediately prior to the commencement of that Act and his employer may, by notice in writing given to the General Manager, elect that the employee continue to be a member of the Fund.

(3) If the Board is satisfied, on the application of the employee and his employer under subsection (1) or (2), that-

(a) the employee is not a citizen of the Fiji Islands; and

(b) the employer has accepted the obligations of an employer under this Act in respect of that employee, the employee from the date of his election shall be deemed an employee or continue to be deemed an employee as defined in paragraph (a) of the definition of "employee", and the employer to be his employer and the provisions of this Act shall thereupon accordingly apply, or continue to apply, to such employee and such employer.".

Section 30 amended

10. Section 30 of the principal Act is amended by adding after subsection (3) the following subsection-

"(4) Notwithstanding subsection (2), any excess contributions in the Fund standing to the credit of a member may be withdrawn by the member at any time subject to the guidelines approved by the Board.".

Transitional

11. Any existing investment made by the Board under written law prior to the commencement of this Act continues as if it has been made under section 7 of the principal Act as amended by this Act.

Passed by the House of Representatives this 1st day of June 2005.
Passed by the Senate this 21st day of June 2005.

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