(1) This subpart provides for employees and other persons to become members of the overall KiwiSaver scheme by—

• (a) the operation of the automatic enrolment rules when an employee starts new employment, with the effect that a person becomes subject to automatic deductions from his or her salary or wages, but may opt out within specified time limits; or

• (b) opting in (whether as an employee who becomes liable for automatic deduction of contributions from his or her salary or wages or otherwise).

(2) This subpart also provides for employers to be exempt employers, with the effect that the automatic enrolment rules will not apply to their employees when they start new employment.

The automatic enrolment rules apply to every employee who is not a secondee and—

• (a) starts new employment with an employer that is not an exempt employer; and

• (b) is aged 18 or over, but less than the New Zealand superannuation qualification age, when he or she starts that new employment.

(1) New employment means any employment that is started on or after the date of commencement of the automatic enrolment rules, but—

• (a) does not include temporary employment (except as provided in section 12); and

• (b) does not include employment in respect of which the employee remains on the same payroll as the payroll that he or she was on immediately before starting that employment; and

• (c) does not include employment with an employer that carries on the same business as the business in which the employee was employed immediately before starting the employment; and

• (d) does not include employment, at the end of a secondment, by the employer from which a secondee was seconded.

(2) Same business means a business that, in substance, carries on the same or a similar role (regardless of whether or not the legal entity carrying on the business changes), and includes, without limitation,—

• (a) a company that results from, or continues after, an amalgamation under the Companies Act 1993 involving the company by which the employee was employed immediately before that employee started the employment; and

• (b) a business that takes over as a going concern the business in which the employee was employed immediately before that employee started the employment.

(2B) Secondee means an employee seconded from an employer to the employment of another employer (employer B), in respect of which the employee is on employer B’s payroll.

(3) However, subsection (1)(c) applies only if an employer has given to the Commissioner the notice (if any) that is required by the Commissioner for the purposes of the administration of this section.

(1) Employment is temporary, and the automatic enrolment rules do not apply, if—

• (a) the employment is as a casual agricultural worker within the meaning of section YA 1 of the Income Tax Act 2007; or

• (b) the employment is under a contract of service that is for a period of 28 continuous days or less; or

• (c) the employment is described in section 28(1)(a)(ii) of the Holidays Act 2003.

(2) However, employment ceases to be temporary, and the automatic enrolment rules then apply (as if the employee then started new employment)—

• (a) on the day after the date on which the employee ceases to be a casual agricultural worker within the meaning of section YA 1 of the Income Tax Act 2007; or

• (b) in the case of employment which was temporary under subsection (1)(b), on the 28th day after the employee started the employment.

(1) Despite sections 10 to 13, the following are not new employment, and the automatic enrolment rules do not apply:

• (a) if the person is an employee only because they are in receipt of payments of salary or wages of a type referred to in any of the following sections in the Income Tax Act 2007:

  • (i) section RD 5(1)(b)(iii) (which relates to certain ACC payments):

  • (ii) section RD 5(3) (which relates to payments to working partners):

  • (iii) section RD 5(7) (which relates to parental leave payments paid under Part 7A of the Parental Leave and Employment Protection Act 1987):

• (b) if the new employment is as an election day worker or a private domestic worker as those terms are defined in section YA 1 of the Income Tax Act 2007:

• (c) if the employee is not required to have tax deductions made from his or her salary or wages under the PAYE rules:

• (d) if amounts are withheld for an employee under the PAYE rules solely because section YD 1(7) of the Income Tax Act 2007 applies to them.

(2) Despite sections 10 to 13, the automatic enrolment rules do not apply if the employee is already a member of a KiwiSaver scheme.

(1) An employee who is subject to the automatic enrolment rules—

• (a) becomes liable in accordance with subpart 1 of Part 3 to automatic deduction of contributions—

  • (i) from the salary or wages paid in respect of the new employment that triggered the automatic enrolment rules; and

  • (ii) from the salary or wages paid in respect of any other new employment that the employee starts after becoming subject to the automatic enrolment rules; and

• (b) must become a member of a KiwiSaver scheme under subpart 2 of this Part.

(2) The employee must continue to be a member of a KiwiSaver scheme until the earliest of—

• (a) an opt-out notice taking effect; or

• (b) the KiwiSaver end payment date referred to in clause 4 of the KiwiSaver scheme rules (which relates to lock-in of funds); or

• (c) the provider terminating the employee’s membership of a KiwiSaver scheme under clause 4(5) of the KiwiSaver scheme rules (which relates to zero account balances); or

• (d) the date of withdrawal or transfer to a foreign scheme in the case of permanent emigration under clause 14 of the KiwiSaver scheme rules.

(3) The employee continues to be liable for automatic deduction of contributions in accordance with subsection (1)(a) in respect of salary or wages until the earliest of—

• (a) the dates referred to in subsection (2); or

• (b) the date on which section 62 otherwise applies to that payment of salary or wages.

Every employee to whom the automatic enrolment rules apply when starting new employment may opt out at any time in the period beginning on the 13th day after the date on which the person started the new employment and ending on the close of the 55th day after the date on which the person started the new employment.

(1) Every employee who wishes to opt out must, within the time limit in section 16, give an opt-out notice either—

• (a) to the Commissioner; or

• (b) to the employer in respect of the new employment that triggered the automatic enrolment rules.

(2) An opt-out notice must be—

• (a) given in the form of the opt-out notice in an information pack; or

• (b) given in any other form and manner permitted by the Commissioner.

(3) In order to be effective, an opt-out notice must contain the information required by that form or by the Commissioner, as the case may be.

(4) An opt-out takes effect on the later of—

• (a) the 13th day after the date on which the person started the new employment that triggered the automatic enrolment rules; and

• (b) the date on which the opt-out notice is—

  • (i) accepted by the Commissioner, in the case of a notice given to the Commissioner; or

  • (ii) received by the employer, in the case of a notice given to the employer.

(5) An employer who receives an opt-out notice must give notice of that opt-out to the Commissioner no later than the time that the next employer monthly schedule is required to be delivered to the Commissioner under sections RA 5, RA 20, RD 2(3), RD 4(1), and RD 22 of the Income Tax Act 2007 and sections 24J and 24P of the Tax Administration Act 1994.

(6) For the purposes of sections 17 to 20, a PAYE intermediary (within the meaning of section YA 1 of the Income Tax Act 2007) acting under sections RP 2 and RP 6 to RP 16 of that Act is treated as an employer.

(1) This section applies if—

• (a) an employee gives an opt-out notice outside the time limit in section 16; and

• (b) 1 or more of the following applies:

  • (i) the employer did not supply the employee with an information pack within 7 days of the employee starting new employment with the employer; or

  • (ii) the Commissioner did not send an investment statement under section 50(3)(c); or

  • (iii) the employer did not supply an investment statement under section 43 (if an employer’s choice of KiwiSaver scheme is effective); or

  • (iv) events outside the control of the employee meant that the opt-out notice could not be given within the time limit and, in the opinion of the Commissioner, it is reasonable that a late opt-out notice be accepted; or

  • (v) a mistake described in section 59A(b) has occurred.

(2) The Commissioner may accept the opt-out notice, if it is received by the Commissioner or the employer in the period that ends 3 months after the date on which the Commissioner receives the first contribution in respect of the employee.

(3) If an opt-out notice is received by the Commissioner outside the time limit in section 16, and the Commissioner does not exercise his or her discretion to accept it under this section, the Commissioner must treat the notice as if it were an application for a contributions holiday under section 102, if the person could have applied under that provision.

The Commissioner must, as soon as practicable after accepting an opt-out notice from an employee, give notice to the employee’s employer in respect of the new employment that triggered the automatic enrolment rules stating that—

• (a) the employee has opted out; and

• (b) the employer must not make any further deductions of contributions in respect of the employee, from the effective date of the opt-out.

(1) An employee who opts out ceases, on the date on which the opt-out takes effect under section 17(4), to be a member of any KiwiSaver scheme of which the employee might have become a member.

(2) The employer must stop making deductions, with effect on the next payment of salary or wages that the employer calculates,—

• (a) if the employee opts out by giving the opt-out notice to the employer, after the effective date of the opt-out notice under section 17(4); or

• (b) if the employee opts out by giving the opt-out notice to the Commissioner, after the date on which the employer receives notice of the employee opting out under section 19.

(3) The employer may refund any deduction to the employee, rather than pay it to the Commissioner.

An opt-out notice given in respect of one employment terminates the application of the automatic enrolment rules only in respect of that one employment, and does not apply to any other new employment in respect of which the employee may become subject to the automatic enrolment rules in the future.

(1) Every person who starts new employment must give notice to the employer of—

• (a) his or her name and address; and

• (b) his or her tax file number; and

• (c) whether or not he or she is already a member of a KiwiSaver scheme and, if that person is a member, must either—

  • (i) give to his or her employer a KiwiSaver deduction notice; or

  • (ii) give or show to his or her employer a copy of a notice given by the Commissioner under section 105 that grants a contributions holiday that has not yet ended.

(2) That information must be given as soon as practicable after the person starts the new employment.

(1) Every employer of a person who starts new employment must give notice to the Commissioner of the information referred to in section 22(1)(a) and (b) that the employee gives the employer, if the employer is satisfied that the employee is subject to the automatic enrolment rules.

(2) That information must be given no later than the time that the employer is next required to deliver an employer monthly schedule to the Commissioner under sections RA 5, RA 20, RD 2(3), RD 4(1), and RD 22 of the Income Tax Act 2007 and sections 24J and 24P of the Tax Administration Act 1994 after the information is given to the employer.

For the purposes of sections 22 and 23, a PAYE intermediary (within the meaning of section YA 1 of the Income Tax Act 2007) acting under sections RP 2 and RP 6 to RP 16 of that Act is treated as an employer.

(1) A person who starts new employment with an exempt employer is exempt from the automatic enrolment rules.

(2) For the avoidance of doubt, subsection (1)—

• (a) does not prevent an employee of an exempt employer from opting in under this subpart; and

• (b) does not prevent a person who is already a member of a KiwiSaver scheme from becoming liable for automatic deduction of contributions from the salary or wages paid in respect of employment with an exempt employer under section 15(1)(a)(ii) or 36(1)(a)(ii).

(1) An employer is eligible to be approved as an exempt employer if the Government Actuary is satisfied that the employer provides access to a superannuation scheme for its employees that complies with the following rules:

• (a) every person who becomes, on or after the date of commencement of the automatic enrolment rules, a permanent employee (including a part-time employee) of that employer, and who is aged 18 or over but less than the New Zealand superannuation qualification age, must be eligible, in practice, at the time when the person so becomes an employee,—

  • (i) to become a member of the scheme; and

  • (ii) to transfer to the scheme the member’s accumulation in relation to other superannuation schemes (to the extent that transfers are available from those other superannuation schemes); and

• (b) the scheme must be a registered superannuation scheme that is registered on or before the day after the Taxation (International Taxation, Life Insurance, and Remedial Matters) Act 2009 receives the Royal assent; and

• (bb) the relevant participation agreement must be entered into by the employer before the day after the Taxation (International Taxation, Life Insurance, and Remedial Matters) Act 2009 receives the Royal assent; and

• (c) the trust deed of the scheme must have the effect that each member who satisfies the scheme’s requirements for a withdrawal benefit, and who elects to withdraw from membership of the scheme, may transfer the member’s accumulation to another registered superannuation scheme or KiwiSaver scheme (to the extent that transfers are available to those other schemes); and

• (d) the trust deed of the scheme must provide for an amount equal to at least 4% of annual gross base salary or wages to be contributed to, or otherwise credited within, the scheme in respect of each person who becomes, on or after the date of commencement of the automatic enrolment rules, a permanent employee of that employer and a member of the scheme.

(2) However, subsection (1)(d) does not apply—

• (a) to the extent that an employee is, in accordance with the terms of the scheme, temporarily relieved from contributions at that rate (for example, in the event of financial hardship); or

• (b) if the scheme is a defined benefit scheme of a type that does not satisfy the 4% minimum amount rule in subsection (1)(d), and if the actuary of the scheme certifies, to the satisfaction of the Government Actuary, that the value of each employee’s accrued benefits to be provided by the scheme is, as a matter of fact, increasing, during each membership period, by an amount at least equivalent to such minimum amount that would otherwise be required by this section and section 26.

(3) In this section,—

(1) For the purposes of section 25(1)(d),—

• (a) the minimum amount required by section 25(1)(d) may be made up—

  • (i) entirely of contributions by the employee; or

  • (ii) entirely of contributions by an employer; or

  • (iii) partially of contributions by the employee and partially of contributions by an employer; and

• (b) the minimum amount required by section 25(1)(d) must be treated as satisfied if the sum of the following amounts is equal to at least 4% of annual gross base salary or wages:

  • (i) the minimum prescribed amount that the employee must contribute:

  • (ii) the maximum prescribed amount that the employer would be required to contribute if the member were to contribute the maximum prescribed amount:

• (c) any amount contributed to the scheme by an employer in respect of an employee does not count towards the minimum amount required by section 25(1)(d) unless—

  • (i) the employee is legally entitled to require the employer to contribute that amount on his or her behalf; and

  • (ii) the trust deed of the scheme provides for the minimum amount required by section 25(1)(d) to vest completely in the employee no later than the time when the employee begins his or her sixth year as a member of the scheme; and

• (d) any amount contributed to the scheme by an employer in respect of an employee must be calculated, for the purposes of the minimum amount required by section 25(1)(d), before any ESCT payable under the ESCT rules is deducted.

(2) Subsection (1)(b) does not limit subsection (1)(c) or (d).

An employer who provides access to more than 1 superannuation scheme for its employees is eligible to be approved as an exempt employer if the Government Actuary is satisfied that, if all of those schemes were considered as a whole (as if they were 1 scheme), the rules in section 25 would be complied with.

An employer who provides access to a superannuation scheme for its employees that is established under a master trust is eligible to be approved as an exempt employer if the Government Actuary is satisfied that the rules in section 25 would be complied with if the Government Actuary considered only—

• (a) the master trust in so far as it relates to the employer’s scheme; and

• (b) the participation agreement executed between the employer and the trustees of the master trust in relation to the membership of the employer’s employees in the scheme; and

• (c) anything else that the Government Actuary decides is relevant to evidencing compliance with the rules in section 25, in respect of the employer’s employees.

(1) A person may apply to the Government Actuary for approval of an employer as an exempt employer.

(2) The application must be accompanied by—

• (a) information that satisfies the Government Actuary that the scheme complies with the rules in section 25; and

• (b) the names, addresses, and tax file numbers of each employer in respect of whom the application is made; and

• (c) if the application is made in respect of an employer that is part of a group of companies, such details of the names, addresses, tax file numbers, and payroll arrangements of any other members of the group that the Government Actuary may request.

(1) The Government Actuary must, within 28 days after receiving an application under section 29 and the documents required to accompany the application,—

• (a) consider whether he or she is satisfied that each employer in respect of whom the application is made is eligible to be approved as an exempt employer; and

• (b) if so satisfied, approve the employer as an exempt employer and register the employer on the register of exempt employers.

(2) The Government Actuary must—

• (a) give notice to the employer as soon as practicable after approving, or declining to approve, the employer as an exempt employer; and

• (b) specify in that notice an effective date after which an employee who starts new employment with the employer will be exempt from the automatic enrolment rules (unless those rules do not otherwise apply).

(1) The Government Actuary may revoke an approval given under section 30 if—

• (a) the Government Actuary has given not less than 28 days’ notice to the employer that the Government Actuary is considering whether to revoke the approval; and

• (b) the Government Actuary is satisfied on reasonable grounds that the employer no longer provides access to a scheme for its employees that complies with the rules in section 25.

(2) The revocation may be on application by the employer or on the Government Actuary’s initiative.

(3) The Government Actuary must—

• (a) give notice to the employer as soon as practicable after revoking the approval; and

• (b) specify in that notice an effective revocation date after which an employee who starts new employment with the employer will be subject to the automatic enrolment rules (unless those rules do not otherwise apply); and

• (c) remove the employer from the register of exempt employers.

The Government Actuary must give notice to the Commissioner as soon as practicable after an employer is approved under section 30 or an approval is revoked under section 31.

A person may opt in at any time provided—

• (a) the person is less than the New Zealand superannuation qualification age; and

• (b) the person is not already a member of a KiwiSaver scheme; and

• (c) the person is not subject to the automatic enrolment rules.

(1) A person who wishes to opt in may do either or both of the following:

• (a) contract directly with a provider of a KiwiSaver scheme to become a member of a KiwiSaver scheme:

• (b) if the person is an employee, give his or her employer a KiwiSaver deduction notice.

(2) A person who opts in by giving his or her employer a KiwiSaver deduction notice must give the employer—

• (a) his or her name and address; and

• (b) his or her tax file number.

(3) The employer must give notice to the Commissioner of the information that the employee gives the employer under subsection (2), if the employer is satisfied that the employee is eligible to opt in under section 33.

(4) That information must be given no later than the time that the employer is next required to deliver an employer monthly schedule to the Commissioner under sections RA 5, RA 20, RD 2(3), RD 4(1), and RD 22 of the Income Tax Act 2007 and sections 24J and 24P of the Tax Administration Act 1994.

(5) For the purposes of sections 34 to 37, a PAYE intermediary (within the meaning of section YA 1 of the Income Tax Act 2007) acting under sections RP 2 and RP 6 to RP 16 of that Act is treated as an employer.

(1) A person who is less than 18 years and who wishes to opt in may only opt in in accordance with section 34(1)(a).

(2) If a provider of a KiwiSaver scheme accepts a person who is less than 18 years as a member of the KiwiSaver scheme, the contract between the provider and the person under 18 years must be treated, for the purposes of the Minors’ Contracts Act 1969, as if the person were aged 18 years.

(1) An employee who opts in under section 34(1)(a) or (b)—

• (a) is liable in accordance with subpart 1 of Part 3 to deduction of contributions—

  • (i) from the salary or wages paid by the employee’s employer; and

  • (ii) from the salary or wages paid in respect of any other new employment that the employee starts after opting in; and

• (b) must become a member of a KiwiSaver scheme under subpart 2 of this Part.

(1B) If an employee to whom subsection (1)(a)(i) applies has more than 1 employer who pays salary or wages to them, then, despite subsection (1)(a)(i), they may choose 1 or more employers who must make deductions of contributions from salary or wages in accordance with subpart 1 of Part 3.

(2) The employee must continue to be a member of a KiwiSaver scheme until the earliest of—

• (a) the KiwiSaver end payment date referred to in clause 4 of the KiwiSaver scheme rules (which relates to lock-in of funds); or

• (b) the provider terminating the employee’s membership of a KiwiSaver scheme under clause 4(5) of the KiwiSaver scheme rules (which relates to zero account balances); or

• (c) the date of withdrawal or transfer to a foreign scheme in the case of permanent emigration under clause 14 of the KiwiSaver scheme rules.

(3) The employee continues to be liable for automatic deduction of contributions in accordance with subsection (1)(a) in respect of salary or wages until the earliest of—

• (a) the dates referred to in subsection (2); or

• (b) the date on which section 62 (other than section 62(a)) otherwise applies to that payment of salary or wages.

A person other than an employee who opts in must continue to be a member of a KiwiSaver scheme until the earliest of the events in section 36(2).

(1) Every provider who contracts directly with a person (A) for membership of its KiwiSaver scheme must give notice to the Commissioner of that fact as soon as practicable after entering into the contract.

(2) The notice must include all of the following information:

• (a) A’s name and address; and

• (b) A’s tax file number; and

• (c) the date of the first contribution received by the provider in respect of A (if any); and

• (d) if A is an employee,—

  • (i) the name and address of each of A’s employers in respect of whom deductions of contributions are to be made from salary or wages; and

  • (ii) the contribution rate in relation to each of those employers; and

• (e) the name and address and tax file number of both the provider and the scheme; and

• (f) any other information that the Commissioner requires.

The Commissioner must, as soon as practicable after receiving a notice under section 38 in respect of an employee who has opted in, give notice to each of the person’s employers to whom the opt-in notice relates, stating—

• (a) that the employer must start to make deductions of contributions from each payment of the person’s salary or wages that is calculated by the employer after the date on which the employer receives the notice under this section; and

• (b) the contribution rate; and

• (c) the person’s name and tax file number.

(1) The Commissioner must initially supply to each employer the number of information packs that the Commissioner reasonably believes will be a sufficient number to enable the employer to meet the employer’s obligations to supply information packs under this Act.

(2) The Commissioner must also supply 1 or more information packs, on any reasonable request, to any person who so requests.

Every information pack supplied by the Commissioner under this subpart must contain—

• (a) a description of the overall KiwiSaver scheme; and

• (b) a statement that membership of the overall KiwiSaver scheme, and of any individual KiwiSaver scheme, is at the member’s own risk; and

• (c) a summary of what could happen under the default allocation rules or if an employer has a chosen KiwiSaver scheme; and

• (d) a description of how to access information about KiwiSaver schemes; and

• (e) a statement that people should seek financial advice from a professional financial adviser (rather than an employer) if they want information in relation to—

  • (i) their personal financial circumstances; or

  • (ii) deciding whether to opt in or opt out or not; or

  • (iii) choosing a KiwiSaver scheme or investment product of a KiwiSaver scheme; or

  • (iv) the overall KiwiSaver scheme or its financial concepts; and

• (f) an opt-out notice form; and

• (g) a statement about collection of personal information that complies with principle 3 of the information privacy principles in the Privacy Act 1993; and

• (h) any other prescribed information.

(1) Every employer must supply an information pack to—

• (a) each employee who starts new employment with the employer and to whom the automatic enrolment rules apply, within 7 days of the employee starting the new employment; and

• (b) each employee who opts in under section 34(1)(b), within 7 days of the employee giving the employer the KiwiSaver deduction notice; and

• (c) each employee who requests an information pack in contemplation of opting in.

(2) An employer is not liable for a penalty for a failure to supply an information pack under this section if the employer proves that—

• (a) the failure of the employer to supply the information pack was caused by the fact that the Commissioner had not given the employer enough information packs to enable the employer to meet its obligations under this Act; and

• (b) the employer notified the Commissioner that the employer needed more information packs, as soon as practicable after realising that the employer did not have enough.

Every employer who supplies an information pack under section 42 must also, if an employer’s choice of KiwiSaver scheme is effective under section 47, supply to the employee at the same time—

• (a) an investment statement for that scheme; and

• (b) a statement that, if the employee does not choose his or her own KiwiSaver scheme, the employee will be allocated to the employer’s chosen KiwiSaver scheme (and not to one of the default KiwiSaver schemes by the Commissioner).

This subpart provides for people to be allocated to KiwiSaver schemes—

• (a) by the person choosing his or her own KiwiSaver scheme; or

• (b) if the person does not so choose, but if his or her employer has a chosen KiwiSaver scheme, by the person being allocated to the employer’s chosen KiwiSaver scheme; or

• (c) in any other case, by the person being allocated to a default KiwiSaver scheme nominated by the Commissioner.

A person may, at any time, choose the KiwiSaver scheme of which he or she will be a member by contracting directly with the provider of the scheme to become a member of that scheme.

(1) An employer may, at any time, choose a KiwiSaver scheme of which the employer’s employees will become members if the employees do not choose their own KiwiSaver scheme.

(2) However, an employer may choose a KiwiSaver scheme under this section only if all permanent employees of the employer are eligible to be members of the scheme (to the extent that this Act applies to the employees).

(3) In this section, permanent employees means employees—

• (a) who are not employed in temporary employment (as described in section 12); and

• (b) to whom the automatic enrolment rules apply, or would apply but for the application of section 14.

(1) The method by which an employer may choose a KiwiSaver scheme is—

• (a) by agreeing with the provider that the provider will provide access to the scheme for the employer’s employees; and

• (b) by giving notice to the Commissioner of—

  • (i) the name, address, and tax file number of the employer; and

  • (ii) the name, address, and tax file number of both the provider and the chosen KiwiSaver scheme.

(2) The employer’s choice of KiwiSaver scheme is effective—

• (a) as from the date on which the notice in subsection (1)(b) is accepted by the Commissioner, or on any later date specified in the notice; and

• (b) until the effective date of the earliest of any of the following notices:

  • (i) notice given by the employer to the Commissioner of an alternative choice of scheme under subsection (1); or

  • (ii) notice given by the employer to the Commissioner stating that the employer no longer has a chosen KiwiSaver scheme; or

  • (iii) notice given by the Commissioner to the employer stating that the employer’s choice of KiwiSaver scheme has been revoked by the Commissioner on the grounds that the Commissioner is not satisfied that the scheme is eligible to be the employer’s chosen scheme under section 46.

(1) This section applies when—

• (a) an employer’s choice of KiwiSaver scheme is effective under section 47; and

• (b) an employee of the employer has not directly contracted to be a member of a KiwiSaver scheme with the provider of a scheme; and

• (c) the employee is an employee—

  • (i) to whom the automatic enrolment rules apply; or

  • (ii) who opted in under section 34(1)(b); and

• (d) more than 3 months have passed since the Commissioner received the first contribution in respect of the employee; and

• (e) there is no relevant dispute under section 212 or 213 in relation to Part 2 or 3.

(2) On the first day that this section applies, the employee is treated as having—

• (a) offered to be a member of the employer’s chosen KiwiSaver scheme; and

• (b) subscribed for securities in that scheme.

(3) The provider of the employer’s chosen KiwiSaver scheme must accept that offer and allot those securities.

(4) The membership contract of the KiwiSaver scheme is binding on the employee and the provider, and enforceable as if it were a contract that was freely and voluntarily entered into.

(5) The contract may be amended or replaced or otherwise terminated, and the allotment of any securities relating to the contract may be voided, in the same way as if the contract were freely and voluntarily entered into.

(6) Subsection (5) is subject to section 220(3).

(7) The Commissioner must, as soon as practicable, give notice to the provider of the scheme of the employee’s name, address, date of birth (if known to the Commissioner), tax file number, and any other personal information that the Commissioner considers relevant.

(1) A notice under section 47(2)(b) does not affect any person who became a member of a KiwiSaver scheme while the scheme was the employer’s chosen KiwiSaver scheme.

(2) However, subsection (1) does not limit section 9BAA of the Superannuation Schemes Act 1989 (which provides for transfers without consent in certain circumstances).

(1) This section applies, in respect of a person who is an employee of an employer and their employment with that employer, when the Commissioner has received from the employer,—

• (a) notice under section 23 of the person’s automatic enrolment; or

• (b) notice under section 34(3) of a person’s opt-in under section 34(1)(b).

(2) However, this section does not apply to a person referred to in subsection (1)(a) or (b)—

• (a) who is an employee of an employer whose chosen KiwiSaver scheme is effective under section 47; or

• (b) who has opted out; or

• (c) if the Commissioner has been notified by a provider that the person has become a member of a KiwiSaver scheme.

(3) As soon as practicable, the Commissioner must, in respect of the person’s employment with the employer,—

• (a) provisionally allocate, on a sequential basis, the person to a default investment product of a default KiwiSaver scheme that is nominated by the Commissioner; and

• (b) give notice to the person of that allocation, including the name and address of the provider of the nominated default KiwiSaver scheme, and of the name of the default investment product of that scheme, to which the person has been provisionally allocated; and

• (c) send to the person the investment statement relating to that product in that scheme; and

• (d) give notice to the person of what will happen if the person does not choose his or her own KiwiSaver scheme.

(4) Subsection (3) also applies, with necessary modifications, and as provided in section 57 in cases to which that section applies, to a person if the Commissioner receives—

• (a) notice under section 58 of the person having ceased to be eligible to be a member of his or her employer’s chosen KiwiSaver scheme; or

• (b) notice under section 173(1)(b) that the person must transfer to another scheme on a scheme’s winding up; or

• (c) notice under section 210(2); or

• (d) notice of any other situation where a person is not, or is no longer, eligible to become or be a member of a certain KiwiSaver scheme and needs to be allocated to a KiwiSaver scheme under this section in order to comply with this Act.

(1) This section and section 52 apply, at the final allocation date specified in subsection (4), to a person (A) who has been provisionally allocated under section 50 if the Commissioner has not been notified by that date by a provider that A has applied to become a member of a KiwiSaver scheme.

(2) The Commissioner must give notice to A that the allocation of A is now completed as per the provisional allocation.

(3) The Commissioner must give notice to the provider of the default KiwiSaver scheme that A has been allocated to the scheme, and A’s name, address, date of birth (if known to the Commissioner), tax file number, and any other personal information that the Commissioner considers relevant.

(4) The final allocation date is—

• (a) in the case of a person referred to in section 50(1)(a) or (b), as soon as practicable after 3 months after the Commissioner receives the first contribution in respect of A:

• (b) in the case of a person referred to in section 50(4), 3 months after the date on which the Commissioner receives that notice.

(5) However, if a dispute in relation to Part 2 or 3 is underway under section 212 or 213 as at the date which would otherwise be the final allocation date, the final allocation date is the effective date of the notice given by the Commissioner to the effect that the dispute has been resolved or has otherwise been terminated.

(1) A person whose allocation is completed under section 51 is treated as having offered to become a member of that default KiwiSaver scheme and as having subscribed for securities in that scheme.

(2) The provider of the default KiwiSaver scheme to which the person has been allocated must accept that offer and allot those securities.

(3) The membership contract of the default KiwiSaver scheme is binding on the person and the provider, and enforceable as if it were a contract that was freely and voluntarily entered into.

(4) The contract may be amended or replaced or otherwise terminated, and any allotment relating to the contract may be voided, in the same way as if the contract were freely and voluntarily entered into.

(5) Subsection (4) is subject to section 220(3).

(1) A person may be a member of only 1 KiwiSaver scheme at any one time.

(2) This section does not limit subpart 3.

(3) This section does not prevent people from having more than 1 account or investment product of any one KiwiSaver scheme.

(1) Sections 55 and 56 apply if a person wishes to transfer KiwiSaver schemes or to transfer from a complying superannuation fund to a KiwiSaver scheme (a voluntary transfer).

(2) Sections 57 to 59 apply if a person has to transfer KiwiSaver schemes or to transfer from a complying superannuation fund to a KiwiSaver scheme (an involuntary transfer). An example of an involuntary transfer may be where a person ceases to be eligible to be a member of their current KiwiSaver scheme, or their complying superannuation fund.

(1) A person may, at any time, transfer from a KiwiSaver scheme or a complying superannuation fund (an old scheme) to a new KiwiSaver scheme (a new scheme) by contracting directly with the provider of the new KiwiSaver scheme to become a member of that scheme.

(2) The transfer is effective in relation to the Commissioner’s functions under this Act only when the Commissioner receives notice of the transfer under section 56(1).

(1) The provider of the new scheme must, as soon as practicable, give notice—

• (a) to the Commissioner—

  • (i) that the person has transferred to the new scheme; and

  • (ii) of the person’s name, address, date of birth, and tax file number; and

  • (iii) of the new scheme’s name and tax file number; and

• (b) to the provider of the old scheme—

  • (i) that the person has ceased to be a member of the old scheme and the effective date of the transfer; and

  • (ii) of the new scheme’s name and address; and

  • (iii) that the provider of the old scheme must transfer the funds and information required to be transferred in accordance with subsection (3).

(2) The provider of the new scheme must also give evidence to the provider of the old scheme that the member wishes to transfer to the new scheme.

(3) The provider of the old scheme that is given notice under subsection (1) must—

• (a) transfer the member’s accumulation to the new scheme; and

• (b) give notice to the member of the amount so transferred; and

• (c) give notice to the provider of the new scheme—

  • (i) of the date on which the member first became a member of a KiwiSaver scheme, if the old scheme is a KiwiSaver scheme; and

  • (ii) as to whether the member has made a withdrawal for the purpose of the purchase of a first home under clause 8 of the KiwiSaver scheme rules; and

  • (iii) of any contribution holidays in force; and

  • (iv) as to whether the Crown contribution under section 226 is included in the member’s accumulation transferred to the new scheme.

  • (v) [Repealed]

  • (vi) of any information held by a provider of the old scheme that would be relevant to a provider of the new scheme making a claim under section 68C of the Tax Administration Act 1994, including information as to the periods for which claims have already been made.

(4) The provider must comply with subsection (3) within 35 days of receiving that notice or any longer period agreed between the providers of the old and new schemes.

(1) This section applies if a person has to transfer KiwiSaver schemes or from a complying superannuation fund to a KiwiSaver scheme, including if—

• (a) the Commissioner has received a notice under section 58 that an employee has ceased to be eligible to be a member of an employer’s chosen scheme; or

• (b) the Commissioner has received a notice under section 173(1)(b) that a person is a member of a KiwiSaver scheme that is being wound up; or

• (c) the Commissioner has received a notice in respect of a member of a KiwiSaver scheme under section 210(2); or

• (d) the Commissioner has received notice in accordance with clauses 4(a) and 5(a) in schedule 28 of the Income Tax Act 2007.

(2) However, this section does not apply if section 9BAA of the Superannuation Schemes Act 1989 applies.

(3) The person must be allocated to a new scheme in accordance with the principles in section 44, but excluding section 44(b) (which relates to allocation to an employer’s chosen KiwiSaver scheme).

(4) The Commissioner must take whatever steps the Commissioner thinks appropriate to ensure that, so far as practicable, the process for an involuntary transfer follows the process for a voluntary transfer under section 56.

(5) Section 56(3) and (4) applies to an involuntary transfer, but as if the requirement in section 56(4) referred to 3 months instead of 35 days.

(6) Sections 45 to 53 apply to an involuntary transfer with necessary modifications.

(7) Subsections (5) and (6) do not limit subsection (4).

The employer must give notice to the employee and the Commissioner if, under the terms of the employer’s chosen KiwiSaver scheme, the employee ceases to be eligible to be a member of that KiwiSaver scheme (for example, if the employee ceases to be an employee of the employer and the scheme applies only to the employer’s employees).

The Commissioner must send to every person who is subject to an involuntary transfer under this subpart, as soon as practicable after the Commissioner receives the notice in respect of that person under section 57(1),—

• (a) an information pack; and

• (b) advice as to the effect of this subpart and of section 50.

This subpart applies when, because of a mistake,—

• (a) this Act has been applied to a person to whom, as a matter of law, this Act does not apply because the person fails to meet the requirements of section 6:

• (b) the automatic enrolment rules have been applied to a person to whom, as a matter of law, those rules do not apply because the person fails to meet the requirements for the rules to apply:

• (c) the rule allowing opt-in, in section 33, has been applied to a person to whom, as a matter of law, that rule does not apply because the person fails to meet the requirement of section 33(a).

(1) As soon as practicable after anyone discovers the mistake, they must notify the Commissioner or the relevant KiwiSaver scheme provider.

(2) The person described in section 59A is treated as a person who meets the requirements of section 6, the requirements for the application of the automatic enrolment rules, or the requirement of section 33(a), for a period—

• (a) starting on the earliest day on which this Act applies, the automatic enrolment rules, or the rule allowing opt-in were applied to the person because of the mistake described in section 59A; and

• (b) ending on the earlier of—

  • (i) 3 months after the mistake is discovered by the person’s KiwiSaver scheme provider:

  • (ii) 3 months after the mistake is notified to the provider by the Commissioner or another person:

  • (iii) the day the provider pays the member’s accumulation for the person to the Commissioner.

(1) This section applies if, during the period of initial back-dated validation under section 59B, the person described in section 59A—

• (a) is a person to whom this Act has been applied because of a mistake described in section 59A(a), and they meet the requirements of section 6 or become a person who meets the requirements of section 6:

• (b) is a person to whom the automatic enrolment rules were applied because of the mistake described in section 59A(b), and—

  • (i) they meet the requirements of section 6 or become a person who meets the requirements of section 6; and

  • (ii) they are less than the New Zealand superannuation qualification age; and

  • (iii) they do not opt out.

(2) The person is treated as a person in relation to whom no mistake described in section 59A was made, and, at that time, met the requirements of section 6 or the requirements of the automatic enrolment rules.

(3) The Commissioner must notify the provider that this section applies.

(4) The relevant provider does not pay the member’s accumulation for the person to the Commissioner.

(1) This section applies when the period of initial back-dated validation under section 59B ends, and confirmed back-dated validation under section 59C has not occurred.

(2) The relevant provider must immediately—

• (a) provide the Commissioner with a notice stating, for the relevant person:

  • (i) the amount of contributions received directly by the provider (not via the Commissioner) and when they were received; and

  • (ii) the amounts paid out by the provider under a mortgage diversion facility, and when they were paid out; and

  • (iii) the amounts paid out by the provider to the person as permitted withdrawals, when they were paid out, the types of permitted withdrawals, and the amount of Crown contributions included in the permitted withdrawals; and

• (b) pay the member’s accumulation for the person to the Commissioner, if the provider has not already done so.

(3) The Commissioner must pay, in accordance with subsection (4), as soon as practicable and without further authority than this section, an amount (the refund amount) equal to the total of—

• (a) the contributions received by the provider (whether directly or via the Commissioner), less the total of—

  • (i) the amounts paid out by the provider under a mortgage diversion facility:

  • (ii) the amounts paid out by the provider to the person as permitted withdrawals, excluding the amount of Crown contributions included in the permitted withdrawals:

  • (iii) Crown contributions:

• (b) the contributions held in respect of the person in the holding account described in section 72, net of interest under section 84:

• (c) the total amount of interest that the Commissioner would be liable for under section 84 on contributions described in paragraphs (a) and (b), excluding amounts described in paragraph (a)(i) to (iii) on a first-in first-out basis. For the purposes of calculating the amount of interest payable on the relevant contributions, the interest period in section 87 is treated as the number of days in the period—

  • (i) beginning on the day the Commissioner received the contribution or the provider received the contribution (if the contribution was not via the Commissioner):

  • (ii) ending with the day that the Commissioner pays the refund amount under this section.

(4) The refund amount must be paid to the person, their employer, the Crown, and any other person making a contribution in respect of the person, in proportion to the Commissioner’s best estimate of what they contributed, taking into account amounts described in subsection (3)(a)(i) and (ii).

(5) When the Commissioner has paid the refund amount, the amount of member’s accumulation for the person previously paid to the Commissioner (the accumulation money), and the contributions held by the Commissioner in respect of the person in the holding account described in section 72 including interest under section 84 (the holding account money) are treated in the following ways:

• (a) the accumulation money and the holding account money are public money, and are not trust money for the purposes of sections 66 to 68 of the Public Finance Act 1989:

• (b) subpart 2 of Part 3 does not apply to the accumulation money and holding account money, and the Commissioner must pay the money into the Crown Bank account.

(1) This subpart applies to an employer in respect of any employee to whom 1 or more of the following applies:

• (a) the employee has started new employment with the employer and the automatic enrolment rules apply:

• (b) the employee has given the employer a KiwiSaver deduction notice:

• (c) the Commissioner has given the employer a notice requiring the deduction of contributions from the employee’s salary or wages.

(2) This subpart applies to all payments of salary or wages—

• (a) after the employee starts that new employment (in a case to which subsection (1)(a) applies); or

• (b) that are calculated by the employer after the employer receives that notice (in a case to which subsection (1)(b) or (c) applies).

The Commissioner may give a notice to an employer requiring the deduction of contributions in order to achieve the effect of section 15 or section 36 (including if the employer fails to comply with section 23).

This subpart does not apply to an employer in respect of an employee, or to a payment of salary or wages,—

• (a) if section 20(2) has required the employer to stop making deductions after an opt-out; or

• (b) if the employee has given or shown the employer a notice of a contributions holiday, or the Commissioner has notified the employer of a contributions holiday, that has been granted under subpart 4, for so long as the employer is satisfied that the employee is on that contributions holiday; or

• (c) if, in accordance with the PAYE rules, no tax deduction is required to be made from the payment of salary or wages at the time the payment is made and the payment is not salary and wages for a private domestic worker.

This Part applies to a PAYE intermediary (within the meaning of section YA 1 of the Income Tax Act 2007) who is acting under sections RP 1 to RP 16 of that Act as if references to the employer were a reference to the PAYE intermediary and with other necessary modifications.

For the purposes of this subpart, a private domestic worker who is an employer under paragraph (b) of the definition of employer is treated as making payments of salary or wages to themselves in the capacity of employee. Consequently, the private domestic worker may be both employer and employee.

(1) The contribution rate, in relation to an employee and to an employer and to each payment of salary or wages, is—

• (a) 2% of the employee's gross salary or wages, if––

  • (i) section 60(1)(a), (b) or (c) first applied in respect of the employee on or after 1 April 2009 and the employee has not given his or her employer a notice under subsection (2); or

  • (ii) section 66A applied in respect of the employee immediately before 1 April 2009; or

• (ab) 4% of the employee's gross salary or wages, if section 60(1)(a), (b) or (c) first applied in respect of the employee before 1 April 2009 and the employee has not given his or her employer a notice under paragraph (b); or

• (b) 8% of the employee’s gross salary or wages if the employee gives his or her employer a notice requiring contributions to be deducted at that rate.

(2) Despite subsection (1), the employee may choose a contribution rate of 2%, 4%, or 8% of their gross salary or wages by giving notice to their employer of the rate they choose.

(3) The new rate applies to the next payment of salary or wages that is calculated after the employer receives that notice.

(4) An employee may not change his or her contribution rate in relation to an employer at intervals that are less than 3 months apart unless the employer agrees.

(1) The Governor-General may, by Order in Council, do either or both of the following:

• (a) alter a rate specified in section 64:

• (b) provide for additional rates at which employees may contribute under this subpart, instead of at the rates under that section.

(2) The Order in Council must state the date from which the rate or rates is to have effect (which must be the first day of a tax year (as defined in section YA 1 of the Income Tax Act 2007)).

(3) The Order in Council must state how it will apply (for example, whether it applies to the persons to whom this subpart already applies).

(4) Every Order in Council made under this section and laid before the House of Representatives pursuant to the Regulations (Disallowance) Act 1989 expires with the close of the 12-month period commencing on the date on which it was so laid, except in so far as it is expressly validated and confirmed by an Act of Parliament passed before that expiry date.

(5) Every Order in Council made under this section has the force of law as if it were enacted by this Act.

(6) The validity of any Order in Council made under this section is not affected by reason only of the repeal of an Act of Parliament validating and confirming it.

The employer must make deductions of contributions from each payment of the employee’s gross salary or wages of an amount equal to the contribution rate.

(1) The PAYE rules apply to the deduction of contributions under this subpart, as far as applicable and with the necessary modifications, as if—

• (a) every reference to income tax were a reference to contributions; and

• (b) every reference to amounts of tax withheld were a reference to the deduction of contributions; and

• (c) every reference to a tax code were a reference to a deduction rate; and

• (d) every reference to an amount required to be deducted under the PAYE rules were a reference to an amount required to be deducted under this Act.

(2) Every employer and employee must comply with the requirements of the PAYE rules to the extent to which those rules apply under this section.

(3) However, the following do not apply to any amount required to be deducted under this subpart:

• (a) sections BC 1, LA 6, RA 2, RD 9 to RD 11, RD 16, RD 17, and RD 18 of the Income Tax Act 2007 and sections 24B to 24P of the Tax Administration Act 1994; and

• (b) sections 139C, 140 to 140DB, 141FD, 141JA, 142E, 144, and 150B of the Tax Administration Act 1994.

(4) Any deduction made under this subpart is not part of or included in any amount of tax withheld under the PAYE rules on account of income tax.

(5) The deductions made under this subpart are in addition to any amounts of tax required to be withheld under the PAYE rules.

(6) This section is subject to sections 212 to 216.

(1) This section applies if money is paid to a provider of a KiwiSaver scheme in respect of all or any of—

• (a) the provision of retirement benefits for the member of the scheme; and

• (b) other things (for example, life insurance premiums).

(2) The money paid in respect of the other things—

• (a) does not count as a contribution under this Act or towards the contribution rate; and

• (b) cannot be paid via the Commissioner.

(3) This subpart does not require an employer to make deductions from salary or wages in respect of that money.

(4) This section does not apply to permitted withdrawals.

(1) This section applies if—

• (a) the Commissioner is satisfied that a deduction has been made in any PAYE period by an employer under this subpart; and

• (b) the amount of the deduction is not paid to the Commissioner by the employer on or before the date on which an employer is required to pay the deduction to the Commissioner under section RA 15 of the Income Tax Act 2007 (as applied by section 67 of this Act).

(2) The amount of the deduction is treated, for the purposes of this Act, as having been received by the Commissioner on the 15th day of the month in which the deduction is made.

(1) This section applies if—

• (a) the Commissioner receives an amount (the received amount) from an employer in relation to the amounts deducted by the employer under this subpart; and

• (b) the employer has failed to supply to the Commissioner the particulars required by the Commissioner in relation to those amounts deducted; and

• (c) the Commissioner is unable to ascertain to the Commissioner’s satisfaction, in sufficient time prior to the cut-off day for the making of on-payments to the providers of KiwiSaver schemes, the portion of the received amount attributable to each of the persons from whom an amount was deducted by the employer.

(2) The Commissioner may, for the purposes of this Part, hold the received amount until the amount attributable to each of the persons from whom an amount has been deducted by the employer has been established to the satisfaction of the Commissioner.

Any amount that is held by the Commissioner under section 70(2) is treated, for the purposes of this Act (other than sections 84 to 91 (interest on contributions) and clause 8 of the KiwiSaver scheme rules (withdrawal for purpose of purchase of first home)), as not having been received by the Commissioner until the day on which the amount attributable to each of the persons from whom an amount has been deducted by the employer has been established to the satisfaction of the Commissioner.

(1) The Commissioner must establish a memorandum account, called the Inland Revenue KiwiSaver Holding Account (the holding account), for the purpose of recording the receipt, deduction, payment, and refund of contributions and interest under this Act.

(2) The holding account established under subsection (1) is not a facility for the purposes of the Financial Transactions Reporting Act 1996.

(1) This section applies to any amount—

• (a) that the Commissioner is satisfied has been deducted from salary or wages under this Act; and

• (b) that is shown on an employer monthly schedule delivered under section RD 4 of the Income Tax Act 2007 as a deduction made from an employee’s salary or wages under subpart 1.

(2) As soon as practicable after receiving that monthly schedule, the Commissioner must enter that amount in the holding account in respect of the person from whose salary or wages the deduction was made.

(3) Subject to sections 75 to 77, as soon as practicable after entering an amount in the holding account under this section, the Commissioner must pay the amount to the provider of the relevant KiwiSaver scheme, without further authority than this section.

(4) Money entered in the holding account under this section is not trust money for the purposes of sections 66 to 68 of the Public Finance Act 1989.

(5) This section is subject to sections 70 and 71.

(6) The Commissioner is entitled, for the purpose of subsection (1)(a), to assume, in the absence of information to the contrary, that amounts entered on an employer monthly schedule have been deducted from salary or wages.

(1) This section applies to any amount of contribution that is received by the Commissioner other than an amount referred to in section 73.

(2) As soon as practicable after receiving the amount, the Commissioner must enter that amount in the holding account in respect of the person to whom the contribution relates.

(3) Subject to sections 75 to 77, as soon as practicable after entering an amount in the holding account under this section, the Commissioner must pay the amount to the provider of the relevant KiwiSaver scheme.

(4) Money entered in the holding account under this section is trust money for the purposes of sections 66 to 68 of the Public Finance Act 1989 .

(1) This section applies to all contributions received by the Commissioner in respect of a person in the 3-month period starting on the earlier of—

• (a) the day on which the Commissioner receives the first contribution in respect of the person:

• (b) the day on which the Commissioner is given notice or otherwise knows that the person is a member of a KiwiSaver scheme.

(2) The Commissioner must hold those contributions in the holding account.

(3) The Commissioner must pay those contributions to the provider of the person’s KiwiSaver scheme as soon as practicable after the expiry of that 3 months (without further authority than this section where those contributions meet the requirements of section 73(1)).

(4) The Commissioner must give notice to the person as soon as practicable after paying those contributions to the provider of the person’s KiwiSaver scheme.

(5) The provider must give notice to the person as soon as practicable after receiving those contributions.

(6) Subsection (3) is subject to section 77.

(1) This section applies if the Commissioner receives a contribution under subpart 3 (contributions other than deductions from salary or wages) from an employer in respect of a person to whom subpart 1 (deductions from salary or wages) also applies.

(2) The Commissioner may hold the contribution made under subpart 3 in the holding account, and then pay it to the provider of the person’s KiwiSaver scheme at the same time as the contribution that is deducted under subpart 1 is paid by the Commissioner to the KiwiSaver scheme.

(1) This section applies if the Commissioner and the provider of a KiwiSaver scheme agree on a minimum threshold for the payment of contributions to the provider.

(2) The Commissioner may hold in the holding account any amount of contribution that relates to a person until the amount meets that minimum threshold.

(3) Then the Commissioner must pay that amount to the provider of the person’s KiwiSaver scheme (without further authority than this section where that amount meets the requirements of section 73(1)).

To the extent that an amount referred to in section 73(1) is not paid to the Commissioner on or before the date on which the employer is required to pay the deduction to the Commissioner under section RD 4 of the Income Tax Act 2007,—

• (a) the Commissioner must pay the amount out of a Crown Bank Account, without further authority than this section; and

• (b) the amount is treated, for the purposes of section 73, as having been received by the Commissioner on the 15th day of the month in which the deduction is made.

The Commissioner must supply, to the provider of a KiwiSaver scheme to which the Commissioner makes any payment under this subpart, any information, and in any format, that the Commissioner determines after consultation with the provider of the KiwiSaver scheme.

(1) The Commissioner may refund any amount of contribution to a person in relation to whom a contribution was made, or from whose salary or wages the amount was deducted if—

• (a) the person opts out and the contribution is in the possession of the Commissioner; or

• (b) the contribution is in excess of the amount that this Act requires to be deducted and the contribution is in the possession of the Commissioner; or

• (c) the person has opted out and the contribution was deducted from salary or wages but was not refunded to the person or paid to the Commissioner.

(2) However, if a request is made under section 173L of the Tax Administration Act 1994, the Commissioner may apply any amount of that contribution in accordance with that request.

(1) A provider must refund to the Commissioner no more than the amount of contribution paid to the provider by the Commissioner in respect of a member of that provider’s KiwiSaver scheme that is in excess of the amount that is required to be paid to the provider under the KiwiSaver scheme and this Act.

(2) The Commissioner must refund or give credit for the amount refunded under subsection (1) in the manner that the Commissioner thinks fit.

(3) However, if a request is made under section 173L of the Tax Administration Act 1994, the Commissioner may apply any amount of that contribution in accordance with that request.

Part 2 of the Trustee Act 1956 does not apply to the Commissioner in respect of money in the holding account.

(1) This section applies to any money—

• (a) that has been in the Commissioner’s possession under this Act for a period of no less than 6 years; and

• (b) about which the Commissioner has insufficient information in order to process that money in accordance with this Act.

(2) No interest is payable on that money under this subpart in respect of the period that this section applies.

(3) The Unclaimed Money Act 1971, and not sections 70 and 74 of the Public Finance Act 1989, applies to that money—

• (a) as if the Commissioner is the holder of the money for the purposes of the Unclaimed Money Act 1971; and

• (b) as if the money must be processed in accordance with this Act, and not paid to the owner, if a valid claim is made to the money; and

• (c) as if the money would not cease to be unclaimed money under subparagraph (i) of the proviso to section 4(1) of the Unclaimed Money Act 1971 (which sets a $100 cap); and

• (d) with other necessary modifications.

(4) If the Commissioner enters into a special arrangement under section 9 of that Act, the Minister who, under the authority of any warrant or with the authority of the Prime Minister, is responsible for the administration of the Unclaimed Money Act 1971 must carry out, after consultation with the Minister of Finance, the responsibilities that would otherwise have been carried out by the Commissioner under that Act.

(1) The Commissioner is liable to pay interest in accordance with sections 85 to 91 on any amount of contribution that is received, or treated as received, by the Commissioner in respect of a person under this Act.

(2) Sections 68(2) and 69 of the Public Finance Act 1989 do not apply to the holding account.

(3) Despite subsection (1), the Commissioner is not liable to pay interest on any amount described in that subsection, if the relevant person has notified the Commissioner in writing of their wish to not be paid interest.

(1) Every amount of contribution that is deducted from salary or wages under this Act is treated, for the purpose of the payment of interest, as received by the Commissioner on the 15th day of the month in which the deduction is made.

(2) Subsection (1) applies if the Commissioner is satisfied that a deduction has been made in any month under this Act.

(3) Every amount of employer contribution is treated, for the purpose of the payment of interest, as received by the Commissioner on the first day of the month in which the Commissioner receives the amount of employer contribution.

(1) The interest rate at which interest is payable under sections 84 to 91 is—

(2) The interest rate calculated using the formula is expressed as a percentage, rounded to 2 decimal places, with numbers at the midpoint or greater being rounded up and other numbers being rounded down.

The amount of interest payable by the Commissioner in respect of a person is calculated in accordance with the following formula:

Interest that is payable under section 84 on an amount of contribution that is on-paid to a provider must be paid to the provider of the person’s KiwiSaver scheme, in respect of the person, at the same time that the amount of contribution is on-paid to the provider.

(1) This section applies to interest that would be payable under section 84 in respect of an amount of contribution that is refunded under this Part (except section 81).

(2) Interest must be paid with the refund.

(3) [Repealed]

(4) [Repealed]

(1) This section applies if the rate of interest established and notified as the Commissioner’s paying rate by an Order in Council made under section 120H of the Tax Administration Act 1994 changes during an interest period in respect of which interest is payable under section 84.

(2) The Commissioner’s paying rate, for the purposes of section 86, must be taken to be the weighted-average rate based on the number of days on which each rate applied during that period.

Interest overpaid by the Commissioner under sections 84 to 90 may be recovered in the same manner as income tax that is payable under the Income Tax Act 2007.

This subpart applies to contributions to a KiwiSaver scheme other than contributions deducted from salary or wages under subpart 1.

For the purposes of this subpart, a private domestic worker who is an employer under paragraph (b) of the definition of employer is treated as making payments of salary or wages to themselves in the capacity of employee. Consequently, the private domestic worker may be both employer and employee.

(1) An employer must pay all amounts of employer contributions to the Commissioner.

(2) The payment of an amount of employer contribution must be accompanied by a PAYE payment form.

(3) If the employer is not a private domestic worker, the contribution must be paid to the Commissioner within the time prescribed in section RA 15 of the Income Tax Act 2007 for the payment of amounts of tax withheld relating to the payment of salary or wages to which the contribution relates, as if the contribution were an amount of tax.

(4) If the employer is a private domestic worker, the contribution must be paid to the Commissioner within the time prescribed in sections RA 8, RA 10, and RD 4(2) of that Act for the payment of tax relating to the payment of salary or wages to which the contribution relates, as if the contribution were tax.

(5) The employer must include details of employer contributions paid in respect of each employee on the employer monthly schedule for the payments of salary or wages to which the contribution relates.

(6) For the purposes of the Tax Administration Act 1994, to the extent to which an employer fails to comply with subsection (5) in respect of an amount of employer contribution that the employer must pay to the Commissioner, that amount is treated as a short payment for the PAYE period for which the failure occurs.

A person other than an employer (including a member of a KiwiSaver scheme) may make a contribution to a person’s (A’s) KiwiSaver scheme by paying it to the Commissioner provided that the contribution is accompanied by—

• (a) A’s name and address; and

• (b) A’s tax file number; and

• (c) any other information that the Commissioner may require.

(1) The Commissioner must, in accordance with subpart 2,—

• (a) first, pay the contribution into the holding account; and

• (b) secondly, on-pay the contribution to the provider of the person’s KiwiSaver scheme.

(2) The payments required under subsection (1) must be made net of ESCT payable under the ESCT rules (if any).

(1) This section applies if—

• (a) an employer, for a PAYE period, shows a payment of employer contribution under this subpart on either or both of a remittance certificate or an employer monthly schedule; and

• (b) the payment is not received in full by the Commissioner by the time the Commissioner receives either or both of the remittance certificate or the employer monthly schedule for that PAYE period.

(2) The Commissioner must give notice to the employer that the payment has not been received.

(1) This section applies if—

• (a) an employer, for a PAYE period, shows payments of employer contribution under this subpart on either or both of a remittance certificate or an employer monthly schedule; and

• (b) the total amount received by the Commissioner for that PAYE period by way of total deductions and employer contribution in respect of all of the employer’s employees is less than the amounts shown on either or both of the remittance certificate or employer monthly schedule in respect of those matters.

(2) The amount of employer contribution (gross of any ESCT payable under the ESCT rules) that is treated as received by the Commissioner for the purpose of this subpart is so much of the payment that is actually received by the Commissioner that exceeds the amounts shown on the remittance certificate and employer monthly schedule in respect of total deductions.

(3) In this section, total deductions means the total of the following:

• (a) the total amount of combined tax and earner-related payments (within the meaning of the Income Tax Act 2007); and

• (b) the total child support deductions; and

• (c) the total student loan deductions; and

• (d) the total contributions deducted under subpart 1; and

• (e) employer contributions that are not compulsory employer contributions.

For the purposes of the Income Tax Act 2007 and the Tax Administration Act 1994, an employer is treated as having an amount of short payment for a PAYE period equal to the difference between—

• (a) the amount of employer contribution that is treated as received by the Commissioner under section 98(2) of this Act for the PAYE period; and

• (b) the amount, for the PAYE period, of employer contribution shown on either or both of a PAYE payment form and an employer monthly schedule in accordance with this subpart.

(1) This section applies if—

• (a) an employer, for a PAYE period, shows payments of employer contribution under this subpart on a remittance certificate or employer monthly schedule in respect of more than 1 of the employer’s employees; and

• (b) the total amount received by the Commissioner for that PAYE period in respect of employer contribution under this subpart is less than the amounts shown on the remittance certificate and employer monthly schedule in respect of all of those employees.

(2) For the purposes of this subpart, the amount of employer contribution (gross of any ESCT) that the Commissioner is treated as receiving for any one employee is given by the following formula:

(3) Subsection (2) does not prevent the provider of a KiwiSaver scheme from crediting amounts on the basis provided for in the trust deed or other document governing employer contributions, rather than in accordance with the calculation under subsection (2).

(4) For the purposes of this section, employer contribution does not include compulsory employer contribution to the extent of the employer’s entitlement to a tax credit under section MK 1(2) of the Income Tax Act 2007 in relation to the contribution.

If an employee opts out after an employer contribution is paid to the Commissioner, the Commissioner must, if it is still in his or her possession, refund the employer contribution to the employer.

(1) The provider of a KiwiSaver scheme must refund to the Commissioner any amount of employer contribution that was paid under this Act by the Commissioner in excess of the amount of the employer contribution that this Act requires.

(2) [Repealed]

(1) An employer must pay, in accordance with sections 101E and 101F, an amount of employer contribution (a compulsory employer contribution) calculated under section 101D for an employee, to the extent to which the employee meets the requirements in section 101C for a period to which a payment of salary or wages relates.

(2) Section 101B provides rules relevant to parties to an employment relationship, and how they bargain in respect of compulsory employer contributions and associated matters.

(2B) Despite subsection (1), an employer does not have to pay a compulsory employer contribution as provided in sections 101FB and 101FC.

(3) Section 101G provides rules relevant to providers who receive compulsory employer contributions directly or from the Commissioner.

(4) The rest of this subpart provides rules relating to compulsory employer contributions to complying superannuation funds. Also, subpart 3 provides some rules for employer contributions to KiwiSaver schemes.

(5) For the purposes of this subpart, a private domestic worker who is an employer under paragraph (c) of the definition of employer is treated as making payments of salary or wages to themselves in the capacity of employee. Consequently, for the purposes of this subpart, the private domestic worker may be both employer and employee, if the worker chooses.

(1) The purpose of this section is to ensure that, for contractual arrangements of parties to an employment relationship (as defined in section 4(2) of the Employment Relations Act 2000), compulsory contributions are paid in addition to an employee’s gross salary or wages described in section 101D(3).

(2) The contractual arrangements of parties to an employment relationship must not have the effect of defeating the purpose of this section described in subsection (1).

(3) A contractual term or condition has no effect to the extent to which it is contrary to the purpose of this section described in subsection (1).

(4) However, on and after 13 December 2007, parties to an employment relationship are free to agree contractual terms and conditions that disregard the purpose of this section described in subsection (1), and, to the extent of such agreement, subsections (1) to (3) do not apply, unless, in respect of the employer and employee,—

• (a) section 60(1)(a), (b) or (c) first applies on or after the day of assent for the Taxation (Urgent Measures and Annual Rates) Act 2008; and

• (b) the contractual terms and conditions do not account for the amount of compulsory contributions the employer is required to pay.

(4A) In the circumstances described in subsection (4)(a) and (b), despite subsection (4),—

• (a) compulsory contributions must be paid in addition to an employee’s gross salary or wages described in section 101D(3), in accordance with the purpose of this section described in subsection (1); and

• (b) subsections (2) and (3) apply.

(5) For the avoidance of doubt,—

• (a) the duty of good faith described in section 4 of the Employment Relations Act 2000 always applies when parties to an employment relationship bargain for terms and conditions relating to compulsory contributions and associated matters; and

• (b) [Repealed]

(6) In this section, compulsory contributions means an amount of employer contributions equal to the amount of compulsory employer contributions that would be required by this subpart in the absence of section 101D(5)(a).

For the purposes of section 101A(1), the requirements are that the employee—

• (a) is paid salary or wages from which the employer deducts or is required to deduct an amount for the employee’s KiwiSaver scheme or complying superannuation fund; and

• (b) is aged 18 or over; and

• (c) is not entitled to withdraw an amount from a fund or scheme under clause 4(3) of the KiwiSaver scheme rules (which relates to lock-in of funds) or a rule the same as that clause; and

• (d) is not a defined benefit scheme member.

(1) The amount of a compulsory employer contribution is a positive amount calculated using the following formula:

(2) The items in the formula are defined in subsections (3) to (6).

(3) Payment of gross salary or wages is the amount of a payment of gross salary or wages from which the employer deducts or is required to deduct an amount for the employee’s KiwiSaver scheme or complying superannuation fund.

(4) CEC rate is, for the payment of gross salary or wages,—

• (a) 1%, if the payment of gross salary or wages is made for a pay period that is in the year starting on 1 April 2008:

• (b) 2%, if the payment of gross salary or wages is made for a pay period that is in a year starting on or after 1 April 2009.

• (c) [Repealed]

• (d) [Repealed]

(5) Other contributions is the total of amounts that the employer pays or credits in relation to the employee for the period to which the payment of gross salary or wages relates, to the extent to which the amounts are—

• (a) employer contributions made in the absence of this section:

• (b) employer’s superannuation contributions made to, or amounts credited from within, (collectively, the contributions) a registered superannuation scheme (the contributions scheme), and—

  • (i) the contributions scheme was registered before 17 May 2007, or the contributions scheme is one (a succeeding scheme) for which there is, due to all relevant members transferring to the succeeding scheme by virtue of section 9BAA of the Superannuation Schemes Act 1989, a prior registered superannuation scheme (a prior scheme) and that prior scheme or another prior scheme for the contributions scheme were registered before 17 May 2007; and

  • (ii) the employer provided access to eligible employees to the contributions scheme or a prior scheme for the contributions scheme before 17 May 2007; and

  • (iii) the employee is—

    • (A) employed by the employer before 1 April 2008, and the employer makes or has agreed with the employee before 1 April 2008 to make or credit the contributions to the contributions scheme or a prior scheme for the contributions scheme; or

    • (B) covered by a collective agreement that is in force before 17 May 2007 and expires after 1 April 2008 under which the employer is required to make or credit the contributions to the contributions scheme or a prior scheme for the contributions scheme; or

    • (C) one that has had contributions paid or credited to the contributions scheme or a prior scheme for the contributions scheme by a previous employer, and those contributions met the requirements described in paragraph (b)(i) to (iii); and

  • (iv) the contributions scheme provides that the contributions vest completely in the employee in a period starting on or after the employee first becomes a member of the contributions scheme and ending no more than 5 years later:

• (c) employer’s superannuation contributions or superannuation subsidies in relation to an employee—

  • (i) whose employment is as a member of Parliament, a judicial officer, or a constable:

  • (ii) who is in a class of employees prescribed in regulations made under section 230A.

(6) Hybrid schemes amount is the amount given by subsection (7) for a registered superannuation scheme, employer and employee described in subsection (5)(b)(i) to (iii)—

• (a) which do not have an amount of other contributions for the period to which the payment of gross salary or wages relates; and

• (b) for which relevant retirement benefits are calculated by adding to the employee’s total contributions a percentage of those contributions.

(7) For the purposes of subsection (6), the amount is calculated using the following formula:

(8) In the formula,—

• (a) member’s contribution is the amount of the employee’s contribution for the period to which the payment of gross salary or wages relates:

• (b) vesting percentage is the percentage (inclusive of amounts payable under the ESCT rules) of the employee's total contributions to be added to those contributions 5 years after the employee first becomes a member of the registered superannuation scheme.

(1) If the employer and employee agree to an allocation of compulsory employer contributions between an employee’s KiwiSaver scheme and complying superannuation funds, the contribution allocation agreed is used for allocating payments.

(2) If the employer and employee cannot agree what allocation of the amount of compulsory employer contribution is for an employee’s KiwiSaver scheme or complying superannuation funds, the amount is—

• (a) first, for the employee’s KiwiSaver scheme, up to the maximum required to meet an employer’s compulsory employer contribution obligations:

• (b) second, for the employee’s complying superannuation funds, pro rata, to the extent to which an amount remains after applying paragraph (a).

(1) If an amount of employer contribution for a payment of salary or wages is for the employee’s KiwiSaver scheme, the amount must be paid by the employer to the Commissioner. The amount is subject to the rules provided in subpart 3.

(2) If an amount of compulsory employer contribution for a payment of salary or wages is for the employee’s complying superannuation fund, the amount must be paid by the employer to the fund’s provider no later than 1 month after the payment of salary or wages.

(1) An employer does not have to pay a compulsory employer contribution for a payment of gross salary or wages to an employee in a grace period described in subsection (2), if, for the whole of the relevant grace period,—

• (a) 1 or more of the following apply:

  • (i) the automatic enrolment rules apply to the employee:

  • (ii) the employer does not receive a notice under section 34(1) or 39 that the employee has opted in; and

• (b) the employer does not deduct any amount of contributions required to be deducted from an employee's salary or wages; and

• (c) the employer does not receive a notice under section 61 that requires the deduction of contributions for the employee.

(2) The grace periods for the purposes of subsection (1) are—

• (a) the period starting on the day that the employee starts new employment and finishing on the earlier of the day—

  • (i) that is 1 year after the day that the employee starts new employment:

  • (ii) that the employee ceases employment:

• (b) the period starting on the day that is 1 year after the day that the employee starts new employment and finishing on the earliest of—

  • (i) the day that is before the day on which the employer receives a notice under section 34(1) or 39 that the employee has opted in:

  • (ii) the day that is before the day on which the employer receives a notice under section 61 that requires the deduction of contributions for the employee:

  • (iii) the day that the employee ceases employment.

For a payment of gross salary or wages to an employee, an employer does not have to pay a compulsory employer contribution for the employee, if, in respect of the payment of gross salary or wages, one of the following amounts is equal to or more than the relevant CEC rate in section 101D(4):

• (a) the amount of other contributions that meets the requirements of section 101D(5)(b) divided by the employee's salary or wages (as defined for the relevant registered superannuation scheme):

• (b) the hybrid schemes amount that meets the requirements of section 101D(6) to (8) divided by the employee's salary or wages (as defined for the relevant registered superannuation scheme).

(1) A provider must use the contribution allocation for a member to credit the amount of compulsory employer contribution they receive across the investment products to which a member has subscribed or has been allocated.

(2) The contribution vests in the member immediately after it is paid to the provider, despite any provision to the contrary.

(3) If a member of a KiwiSaver scheme will be entitled within 2 months to withdraw an amount from the fund or scheme under clause 4(3) of the KiwiSaver scheme rules (which relates to lock-in of funds), the provider must send a notice to the Commissioner stating the date on which the member will be entitled to withdraw. The Commissioner may notify the member’s employer of the date, for the purposes of the employer applying this subpart.

(4) If a member of a complying superannuation fund will be entitled within 2 months to withdraw an amount from the fund under a rule the same as clause 4(3) of the KiwiSaver scheme rules, the provider must send a notice to the member's employer stating the date on which the member will be entitled to withdraw.

(1) This section applies if the provider of a complying superannuation fund knows that an employer has failed to pay to the provider an amount of compulsory employer contribution in accordance with this subpart.

(2) The provider must, as soon as practicable, give a notice to the employer, requesting the payment of the amount of compulsory employer contribution. The provider must send to the Government Actuary a copy of the notice.

(3) If the employer does not pay the amount of compulsory employer contribution to the provider within 1 month of this section first applying for the amount, and the total of the amounts of compulsory employer contributions unpaid is more than $500, then the provider must immediately give a notice to the Government Actuary.

(4) A notice under subsection (3) must show the following:

• (a) the name of the employer; and

• (b) the amounts of compulsory employer contributions unpaid; and

• (c) the employer’s name, address, and tax file number (if known); and

• (d) specify the relevant employees to whom the failure to pay relates, their tax file numbers, and addresses; and

• (e) the pay periods and relevant amounts for the employees to whom the failure to pay relates; and

• (f) other information required by the Government Actuary.

(5) If the employer pays an amount of compulsory employer contribution remedying a failure to pay that was notified to the Government Actuary under subsection (3), the provider must immediately give a notice to the Government Actuary showing relevant details of the employer’s payment.

(1) If the Government Actuary receives a notice under section 101H(3), the Government Actuary must decide the amount of compulsory employer contribution that an employer to which the notice relates has failed to pay for the relevant calendar months.

(2) The Government Actuary may use any power (with necessary modifications for complying superannuation funds) that the Government Actuary has in respect of KiwiSaver schemes in the performance of the duty to decide imposed by subsection (1).

(3) As soon as practicable, the Government Actuary must give a notice to the employer showing the information described in subsection (4).

(4) A notice under subsection (3) must—

• (a) require the payment of the amount (the liable amount) that the Government Actuary has decided, under subsection (1), that an employer has failed to pay to the provider; and

• (b) specify the relevant calendar months and related amounts; and

• (c) specify that the employer must pay the liable amount within 28 days after the notice is given; and

• (d) specify the employer's name, address and tax file number (if known); and

• (e) specify the relevant employees to whom the failure to pay relates, their tax file numbers, and addresses; and

• (f) specify the pay periods and relevant amounts for the employees to whom the failure to pay relates; and

• (g) inform the employer that failure to comply with the notice will result in the Commissioner receiving notice of the failure to comply; and

• (h) show other information required by the Commissioner.

(5) If the employer does not pay the liable amount in the period specified in subsection (4)(c) and the employer has not objected to the Government Actuary's decision under subsection (1) within the time allowed under section 186, the Government Actuary must immediately—

• (a) give to the Commissioner a notice showing the information described in subsection (6); and

• (b) send to the provider a copy of the notice.

(6) A notice under subsection (5) must—

• (a) state that the employer has failed to comply with notices under section 101H(3) and subsection (3); and

• (b) show the information described in subsection (4); and

• (c) specify the extent to which an amount of compulsory employer contributions remains unpaid for the liable amount; and

• (d) specify the relevant employees to whom the unpaid amounts relate, their tax file numbers, and addresses; and

• (e) specify the pay periods and relevant amounts for the employees to whom the unpaid amounts relate.

(7) If the Government Actuary makes a decision, upon an employer's objection to the Government Actuary's decision under subsection (1), and the decision is that the employer to which the notice under section 101H(3) relates has failed to pay an amount of compulsory employer contribution for the relevant calendar months, the employer is treated as having not objected, and the Government Actuary must immediately give the Commissioner the notice described in subsection (5).

(1) If the Commissioner receives a notice under section 101I(5), the amount of compulsory employer contributions unpaid for the liable amount, specified in that notice, is treated as an amount due and payable by the employer to the Commissioner on the 20th working day after the Commissioner receives the notice under section 101I(5).

(2) The Commissioner must send the employer a notice of the amount due and payable, and the due date, specified in subsection (1).

An amount of compulsory employer contribution for an employee's complying superannuation fund that is received by the Government Actuary or the Commissioner by virtue of this subpart must be paid by them to the relevant provider. The relevant amount of compulsory employer contributions remaining unpaid for the relevant liable amount is consequentially reduced.

A person to whom subpart 1 (deductions of contributions from salary or wages) applies may apply to the Commissioner for a contributions holiday—

• (a) at any time after the Commissioner receives the first contribution in respect of that person, if the person is suffering, or likely to suffer, financial hardship; or

• (b) at any time after 12 months have expired since the earlier of—

  • (i) the date that the Commissioner received the first contribution in respect of that person; or

  • (ii) the date that a provider received the first contribution in respect of that person’s membership of a KiwiSaver scheme; or

  • (iii) the date that the person is first a member of a complying superannuation fund.

(1) An application for a contributions holiday may be made by any means that the Commissioner accepts.

(2) The application must tell the Commissioner—

• (a) the person’s name and address; and

• (b) the person’s tax file number; and

• (c) the name and address of each of the person’s employers to whom the person intends that the holiday will apply; and

• (d) the period of time for which the holiday is required; and

• (e) in the case of an application made under section 102(a), details of the financial hardship; and

• (f) any other information that the Commissioner requires.

(1) The Commissioner must accept an application for a contributions holiday, and grant a contributions holiday, if the Commissioner is satisfied that the person meets the requirements of section 102, and the application is made in accordance with section 103.

(2) A contributions holiday granted in respect of an application made under section 102(a) must be granted for a period of 3 months, unless the Commissioner agrees to a longer period.

(3) A contributions holiday granted in respect of an application made under section 102(b) must be granted for—

• (a) a minimum period of 3 months; and

• (b) a maximum period of whichever is the shorter of—

  • (i) 5 years; or

  • (ii) the period specified in the application.

(1) The Commissioner must, as soon as practicable after granting a contributions holiday, give notice—

• (a) to the person who applied for the holiday—

  • (i) that the holiday has been granted; and

  • (ii) of the date on which the holiday will end; and

• (b) to each relevant employer—

  • (i) that a contributions holiday has been granted in respect of the person; and

  • (ii) that the employer must stop making deductions of contributions from the salary or wages of the person; and

• (c) to the provider of the person’s KiwiSaver scheme—

  • (i) that a contributions holiday has been granted in respect of the person; and

  • (ii) of the names of the relevant employers; and

  • (iii) that deductions of contributions may not be made from the salary or wages paid to the person by the relevant employers during the period of the holiday.

(2) In this section, relevant employer means each employer to whom the person stated, in the application for the contributions holiday, that the contributions holiday was intended to apply.

If an employer is notified under section 105, subpart 1 ceases to apply—

• (a) to the employer in respect of the person who applied for the contributions holiday; and

• (b) with effect on the next payment of salary or wages that the employer calculates after the date on which the employer receives the notice.

A contributions holiday granted under this subpart, while it is in force,—

• (a) has effect, subject to section 108, in respect of each employer to whom the person stated, in the application for the contributions holiday, that the contributions holiday was intended to apply; and

• (b) may be used, if the person chooses, in respect of any other employer.

(1) The purpose of this section is to prevent employees requesting employers to stop and start deductions of contributions too often.

(2) No contributions holiday may be used in respect of an employer for less than 3 months unless the employer agrees.

The Commissioner must give notice to a person who is on a contributions holiday before the holiday ends.

The Commissioner must give notice to each affected employer known to the Commissioner, as soon as practicable after the end of a contributions holiday,—

• (a) of the date on which the contributions holiday ended; and

• (b) that the employer must start making deductions of contributions from the salary or wages of the person.

(1) If an employer is notified under section 110 about the end of a person’s contributions holiday, or under section 112 about the revocation of a person’s contributions holiday, subpart 1 applies—

• (a) to the employer in respect of that person; and

• (b) with effect on the next payment of salary or wages that the employer calculates after the date on which the employer receives the notice.

(2) This section is subject to any new contributions holiday that is granted under this subpart.

(1) Subject to section 108, a person may at any time revoke his or her contributions holiday in respect of an employer by giving notice to the employer requiring the employer to start making deductions from salary or wages under subpart 1.

(2) A person may at any time reinstate his or her contributions holiday in respect of an employer by giving notice to the employer requiring the employer to stop making deductions from salary or wages under subpart 1.

(3) Sections 106 and 108 apply, with necessary modifications, as if the reinstatement of a contributions holiday were the granting of a contributions holiday.

(1) A person may apply to the Commissioner for a refund of any contributions that are being held in the holding account under section 75 if the person is suffering, or likely to suffer, significant financial hardship or is suffering serious illness.

(2) In this section, significant financial hardship has the same meaning as in clause 11 of the KiwiSaver rules and serious illness has the same meaning as in clause 12 of those rules.

(3) The application may be made by any means that the Commissioner accepts.

(4) The application must tell the Commissioner—

• (a) the person’s name and address; and

• (b) the person’s tax file number; and

• (c) details of the significant financial hardship or serious illness; and

• (d) any other information that the Commissioner requires.

(5) The Commissioner must refund the contributions to which the application relates, if the Commissioner is reasonably satisfied that—

• (a) the person and the application meet the requirements of this section; and

• (b) reasonable alternative sources of funding have been explored and have been exhausted.

(6) However, the Commissioner—

• (a) must not refund under this section any employer contributions that were made under section 93; and

• (b) may direct that, despite subsection (5), the amount to be refunded under this section is limited to a specified amount that, in the Commissioner’s opinion, is required to alleviate the particular hardship.

(7) The Commissioner must give notice of the refund to the provider of the relevant KiwiSaver scheme (if any).

(1) This section applies if—

• (a) an employee has a contributions holiday that has not yet ended; and

• (b) the employee starts new employment, but cannot comply with section 22(1)(c)(ii).

(2) The employer may, at any time after the employee complies with section 22(1)(c)(ii), refund to the employee any contributions that were deducted from the employee’s salary or wages before the employee complied.

(3) The Commissioner may refund that money to the employee if the money is held by the Commissioner.

In this Part, unless the context otherwise requires, any term or expression that is used but not defined in this Act but that is defined in the Superannuation Schemes Act 1989—

• (a) has the meaning given to it by that Act; and

• (b) has the same meaning in relation to a KiwiSaver scheme as it has in relation to a registered superannuation scheme.

(1) A scheme is eligible to be a KiwiSaver scheme if—

• (a) it is—

  • (i) established and governed by a trust deed that is interpreted and administered in accordance with New Zealand law; or

  • (ii) in the case of a proposal under section 135 or 148, proposed to be established as a KiwiSaver scheme and governed under a trust deed that meets the criteria in subparagraph (i); or

  • (iii) a scheme constituted under an Act of the Parliament of New Zealand; and

• (b) its principal purpose is to provide retirement benefits directly or indirectly to natural persons; and

• (c) it is a defined contribution scheme; and

• (d) the benefits provided by the scheme are fully funded as they accrue; and

• (e) the scheme has at least 1 independent trustee; and

• (f) in the case of a scheme that is not constituted under an Act of the Parliament of New Zealand,—

  • (i) it has at least 1 trustee who is a New Zealand resident; or

  • (ii) if any of the trustees is a corporate trustee, at least 1 of the directors of the corporate trustee is a New Zealand resident.

(2) However, subsection (1)(e) does not apply in the case of a scheme that is, or is to be, registered under section 141 or 150 if the registered superannuation scheme in respect of which the proposal under section 135 or 148 is made was in existence before this section came into force.

(3) The provisions of the trust deed referred to in subsection (1)(a)(i) and (ii) may also govern a registered superannuation scheme.

(4) This section is subject to the requirement for registration under subpart 3.

(1) This section applies to a trustee if—

• (a) the trustee is named as an independent trustee in an application or proposal submitted in relation to the KiwiSaver scheme under sections 131, 132, 135, or 148 (unless a substitute has been appointed for that person in accordance with paragraph (c)); or

• (b) the trustee is, in fact, an independent trustee in the event that no trustee is named as an independent trustee in an application or proposal submitted in relation to the KiwiSaver scheme under sections 131, 132, 135, or 148 or none of the persons so named in the application or proposal, or their substitutes appointed under paragraph (c), continue to be trustees; or

• (c) the trustee is appointed as a substitute for a person named as an independent trustee in an application or proposal submitted in relation to the KiwiSaver scheme under sections 131, 132, 135, or 148 (or as a substitute for a person subsequently appointed) if the trustees notify the Government Actuary of the appointment.

(2) A trustee to whom this section applies—

• (a) must, in managing the affairs of the KiwiSaver scheme, exercise the care, diligence, and skill that a prudent person engaged in the profession or business of managing trusts must exercise; and

• (b) is liable in any civil proceedings for any act or omission as if that standard of care, diligence, and skill applied.

(1) This section applies to a KiwiSaver scheme if the scheme has less than 20 members, treating all interests in the scheme held by persons associated under the 1988 version provisions of the Income Tax Act 2007 as being held by 1 person.

(2) A transaction between a scheme’s provider, and a person associated (under the 1988 version provisions of the Income Tax Act 2007) with either a provider or a member must use arm’s length amounts of consideration.

(3) Despite subsection (2),—

• (a) the KiwiSaver scheme must not have more than 5% of its assets in investments related to or managed by—

  • (i) a provider (other than in their capacity of provider):

  • (ii) a member:

  • (iii) a person associated (under the 1988 version provisions of the Income Tax Act 2007) with a provider or member; and

• (b) the provider must not lend money or provide financial assistance to—

  • (i) a member:

  • (ii) a person associated (under the 1988 version provisions of the Income Tax Act 2007) with a provider or member.

(1) A KiwiSaver scheme must, for the purposes of any other enactment (unless the enactment indicates otherwise), be treated as a registered superannuation scheme and, accordingly,—

• (a) a reference in an enactment to a scheme registered under the Superannuation Schemes Act 1989 includes a reference to a KiwiSaver scheme:

• (b) a reference in an enactment to any person, right, obligation, duty, interest, property, funds, or any other matter that would apply in relation to a registered superannuation scheme applies with necessary modifications in relation to a KiwiSaver scheme.

(2) Despite subsection (1), but subject to subsection (3), a KiwiSaver scheme—

• (a) must not be treated as a registered superannuation scheme for the purposes of this Act or the Superannuation Schemes Act 1989 except as provided in sections 119 to 123; and

• (b) must instead be established, registered, and wound up in accordance with this Part and subject to the express provisions of this Part.

(3) This section is subject to sections 119 to 124.

(1) The requirement in section 7 of the Superannuation Schemes Act 1989 to specify certain matters in the trust deed of a registered superannuation scheme applies to the trust deed of a KiwiSaver scheme so as to require the same matters to be specified in relation to a KiwiSaver scheme.

(2) Despite subsection (1), if this Act expressly sets out requirements in relation to the matters set out in section 7 of the Superannuation Schemes Act 1989 (for example, by terms implied by the KiwiSaver scheme rules or provision for how a scheme must be wound up),—

• (a) the provisions of this Act prevail; and

• (b) section 7 of the Superannuation Schemes Act 1989 (as applied by this section) is satisfied by reference to the relevant provisions in this Act in respect of those matters.

(1) Sections 8 to 11 of the Superannuation Schemes Act 1989 (which relate to trust deeds and their provisions) apply with necessary modifications to a KiwiSaver scheme as if it were a registered superannuation scheme.

(2) However,—

• (a) section 9B of the Superannuation Schemes Act 1989 applies as if a reference to section 20 of the Superannuation Schemes Act 1989 were a reference to section 169 of this Act; and

• (b) section 9BA of the Superannuation Schemes Act 1989 applies as if a reference to section 23 of the Superannuation Schemes Act 1989 were a reference to section 186 of this Act.

(3) This section is not limited by any requirement in this Act for the Government Actuary to consider or be satisfied of any matters that are certified by the trustees under Schedule 2.

(4) This section is subject to section 121.

(1) Nothing in this section limits the application of sections 8 to 11 of the Superannuation Schemes Act 1989 under section 120 with necessary modifications.

(2) Despite section 120,—

• (a) sections 9B to 9BA of the Superannuation Schemes Act 1989 do not apply in relation to transfers to which subpart 3 of Part 2 applies; and

• (b) nothing in sections 9 to 9BA of the Superannuation Schemes Act 1989 applies in relation to amendments to the trust deed of a registered superannuation scheme, alterations to a registered superannuation scheme or the transfer of members of a registered superannuation scheme that are effected in accordance with sections 135 to 147 or sections 148 to 155.

(3) In respect of any transfer that does occur under section 9B of the Superannuation Schemes Act 1989 (as applied by section 120 and this section) from one KiwiSaver scheme to another KiwiSaver scheme,—

• (a) a member (A) of the KiwiSaver scheme who gives consent to a proposed transfer under section 9B of the Superannuation Schemes Act 1989 (as applied by section 120 and this section) must give to the trustees the following information:

  • (i) A’s name, address, and date of birth; and

  • (ii) A’s tax file number; and

  • (iii) the date on which A first became a member of a KiwiSaver scheme; and

  • (iv) if A is an employee,—

    • (A) the name and address of each of A’s employers; and

    • (B) the rate at which A intends each of those employers to make deductions of contributions from his or her salary or wages; and

  • (v) the name and address and tax file number of both the provider and the scheme; and

  • (vi) any other information that the Commissioner requires; and

• (b) the trustees of the KiwiSaver scheme from which it is proposed to transfer members must, in addition to the matters to be notified in writing under section 9B(2B) of the Superannuation Schemes Act 1989, provide to the satisfaction of the Government Actuary evidence that they have provided in respect of each member of the scheme the information set out in paragraph (a) to the Commissioner.

(4) Despite subsection (3)(b), the trustees of a registered superannuation scheme are not required to provide any or all of the information listed in subsection (3)(a) in respect of any or all of the members of the scheme to the Commissioner if the information is not in the control or possession of the trustees.

(1) Sections 13, 15A, 16, 17, and 18 of the Superannuation Schemes Act 1989 apply, as far as applicable and with necessary modifications, in relation to a KiwiSaver scheme.

(2) Despite subsection (1), section 13(2) of the Superannuation Schemes Act 1989 does not apply in relation to a KiwiSaver scheme.

(3) Section 15A of the Superannuation Schemes Act 1989 applies as if the references to a trust deed exclude participation agreements that would not relate to a person if the person were to become a member of the KiwiSaver scheme.

(4) Section 16(2) of the Superannuation Schemes Act 1989 applies in relation to KiwiSaver schemes subject to any exemptions made under regulations made under section 228(t).

(5) Section 17 of the Superannuation Schemes Act 1989 applies subject to the following:

• (a) the requirement in section 17(1)(a) (which relates to a requirement to give members a copy of the annual report) 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; and

• (b) the requirements in section 17(1)(b)(ii) and (iii) must be treated as if the references to a trust deed exclude participation agreements that do not relate to the relevant member.

(6) Section 18 of the Superannuation Schemes Act 1989 applies in relation to a KiwiSaver scheme as if it also required the trustees of a KiwiSaver scheme that is not constituted under an Act of Parliament, and in respect of which any of the trustees is a corporate trustee, to notify the Government Actuary as soon as practicable after the corporate trustee ceases to have at least 1 director who is a New Zealand resident.

(1) The trustees of a KiwiSaver scheme must, within 5 months after the end of each financial year, prepare a report on the scheme for that year.

(2) The annual report must, to the extent the information is applicable in respect of a KiwiSaver scheme, specify the information set out in Schedule 2 of the Superannuation Schemes Act 1989.

(3) However,—

• (a) clause 1(d) of Schedule 2 of the Superannuation Schemes Act 1989 does not apply; and

• (b) instead, the annual report must include a statement by the trustees as to whether they have applied contributions received in respect of each member, including contributions paid via the Commissioner in respect of that member, in accordance with the trust deed.

(4) The annual report must contain a certificate signed by the trustees certifying that—

• (a) they have, in respect of each member of the scheme, applied any fee subsidies received in respect of that member in accordance with prescribed requirements; and

• (b) there is a scheme provider agreement between the Commissioner and the provider of the scheme that remains in force; and

• (c) if there has been an increase in a fee referred to in clause 2 of the KiwiSaver scheme rules during the year, the fee as increased is not unreasonable, after having regard to any matters prescribed under section 228(p) and any guidelines published by the Government Actuary under section 127.

(5) The annual report must also specify—

• (a) the number of members of the scheme who during the year have made a withdrawal for the purchase of a first home under clause 8 of the KiwiSaver scheme rules and the total amount withdrawn by all of those members:

• (b) the number of members of the scheme who during the year have made a withdrawal on the grounds of significant financial hardship under clause 10 of the KiwiSaver scheme rules and the total amount withdrawn by all of those members: