Provident Fund Ordinance 1984

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4 Establishment of the Fund
5 Special Death Benefit Fund
6 Provident Fund Board
7 Terms of appointment of Board members
8 Meetings of the Board
9 Functions of the Board
10 Rate of interest on accounts
11 Advances by the Government

12 Persons covered
13 Exceptions from liability
14 Registration of employers and members and other contribution matters
15 Appointment of inspectors and powers of inspectors
16 Waiver of liability
17 Treating unpaid contributions as paid
18 Contributions and interest to be credited to member’s accounts
19 Deductions for special death benefit

22 Manner of claiming benefit and evidence to be produced
23 Manner of payment of benefit
24 Circumstances in which lump-sum payments can be spread over a period
25 Provision for nominating beneficiaries

26 Decisions and appeals
27 The appointment of a medical board
28 Payments to Board members and expenses of witnesses

29 Offences and penalties
30 Civil proceedings
31 Authority for and conduct of proceedings

32 Amendment to income tax law
33 Transitional provision
34 Repeal of Pensions Ordinance
35 Amendment to public service law
36 Termination, preservation or transfer of existing pension, gratuity or provident fund rights
37 Repeal of Tuvalu Provident Fund Ordinance

Table of Legislation History
Table of Renumbered Provisions
Table of Endnote References

AN ORDINANCE TO ESTABLISH A NATIONAL PROVIDENT FUND AND FOR PURPOSES ANCILLARY THERETO

(1) The Tuvalu Provident Fund Ordinance 1981 was based on legislation originally written for the scheme operating in Kiribati and, although the scheme to operate in Tuvalu is similar in concept, that legislation is now considered to be out of date and not readily understandable in the context of Tuvalu.

(2) In addition the later, 1983, Ordinance contains certain inaccuracies, anomalies and omissions which would make the administration of it impossible without taking some action ultra vires.

(a) to replace the Tuvalu Provident Fund Ordinance 1983 to enable the Fund to operate as intended with the minimum of administrative difficulty; and

(b) to set the framework for a national provident fund which will cover potentially every person of working age, without discrimination on any grounds of nationality, race or colour, for the contingencies in respect of which benefit is payable in return for compulsory, earnings related contributions or voluntary contributions.

"appointed day" means such a day as the Minister may appoint for the coming into force of the provisions of this Ordinance, and the Minister may appoint different days for different purposes of this Ordinance;

"contribution" means a contribution to the Fund liable to be paid, or which there is eligibility to pay voluntarily, under section 12;

"deduction" means a deduction from a member’s account under section 19 for the purpose of financing special death benefit;

"employed person" means a person who is gainfully employed whether - under contract of service, as a director of a limited company, a holder of an office, the Governor General, Members of Parliament, ministers of religion, and includes any person who, though not bound by a formal contract of service, is subject to the control of another person, group of persons or body corporate as to the manner in which he carries out his duties, and the words "employed" and "employment" shall be construed accordingly;

"employer" means any person, group of persons or body corporate having another person or persons in their employ;

"financial year" means the period from the 1st day of January to the 31st day of December each year;

"investment adviser" means the investment adviser appointed under section 9(2);

"maximum amount" means the maximum amount of special death benefit payable under section 23;

"member" means any person, registered under section 14, who has paid contributions or in respect of whom contributions have been payable at any time;

"nominated person" means a person nominated under section 25 to receive death benefit payable under section 20(f);

"permanently retired" means retired from regular employment and presumes that occupational activity has ceased or largely ceased;

"proper time" means the time prescribed in regulations for the payment of contributions;

"Special Fund" means the Special Death Benefit Fund established under section 5;

"voluntary member" means any person eligible to pay contributions voluntarily under section 12 and who becomes registered under section 14.

(1) There is hereby established a fund, to be called the Tuvalu Provident Fund, into which shall be paid —

(b) all rents, interest on investments, or other income derived from the assets of the Fund;

(c) all sums properly accruing to the Fund under this Ordinance including any repayment of benefit (excluding special death benefit payable under section 20(g));

(d) all sums received under this Ordinance as fees, surcharges, penalties or costs; and

(e) any other sums provided by the Government for the purposes of this Ordinance or received and accepted by the Manager on behalf of the Fund.

(a) all benefits with the exception of special death benefit payable under section 20(g);

(d) all deductions from members’ accounts required to be made under section 19.

(1) There shall be established a special fund, to be called the Special death Benefit Fund, into which shall be paid —

(a) all deductions from members’ accounts required to be made under section 19;

(b) all rents, interest on investments, or other income derived from the assets of the Special Fund;

(d) any other sums provided by the Government or the Fund for the purpose of floating or maintaining the Special Fund.

(2) There shall be paid out of the Special Fund all payment of special death benefit.

(1) There is hereby established a board of management to be called the Tuvalu Provident Fund Board, which shall consist of six members appointed by the Minister under subsection (2).

(a) from nominations by the groups and interests concerned two members each from —

(2) Members of the Board shall be eligible for appointment for further periods provided that no member shall hold office for a consecutive period in excess of six years.

(3) The Minister may, on the recommendation of the Board, dismiss from office any member who —

(a) fails to attend without legitimate excuse three or more consecutive ordinary meetings of the Board;

(b) loses his status as a public servant, employer or employed person, as the case may be, by virtue of which he was appointed to· the Board;

(4) For the purposes only of the Penal Code every member of the Board and every person appointed to hold office for the purposes of this Ordinance shall be deemed to be a person employed in the public service.

(1) The Chairman of the Board shall call meetings once a month or more frequently if the efficient administration of the Fund so requires.

(2) A Quorum shall consist of two-thirds of the members of the Board provided that if the Chairman is not present, an acting Chairman may be elected at that meeting from among the members present.

(1) The Board shall, subject to this Ordinance and any direction by the Minister, be responsible for —

(b) the payment of benefit and of the expenditure necessary for the administration of the Fund;

(2) The Board shall, with the approval of the Minister, appoint an investment adviser to the Fund on terms from time to time to be agreed between the Board and the investment adviser, and shall have the authority to seek investment advice from and give investment instructions to the investment adviser as the Board thinks fit.

(3) The Board shall, with the approval of the Minister, appoint a Manager who shall, subject to any directions of the Board, have day-to-day control over the Fund and all its officers and staff.

(4) The Board shall, subject to this Ordinance, be responsible for advising the Minister on all matters concerning the operation of the Fund and in particular for

(b) reviewing, with the assistance of an actuary, levels of contributions and benefits and recommending to the Minister any changes that may become necessary; and

(c) advising the Minister of the financial position of the Fund and Special Fund as it affects the level of any transfer of funds under section II.

(5) The Board shall cause to be kept proper books of account which shall be audited annually and other books and records in relation thereto, in which shall be recorded all financial transactions of the Fund.

(6) The Chairman of the Board shall, as soon as practicable after the end of each financial year, submit a report on the Fund’s operations during the year, together with a copy of its annual accounts to the Minister who shall lay them before Parliament.

(7) The Board shall publish the report and accounts submitted under subsection (6).

(1) At the end of each financial year the Board shall, having considered the recommendation of the Manager, declare a rate of interest for the purpose of section 18 for that financial year.

(2) No rate of interest exceeding 4 per cent per annum shall be declared under subsection (I) if any sum advanced by the Government under section II has not been repaid.

(1) Where at any time the Fund or Special Fund is unable to pay any sum which is required to be paid under this Ordinance, the Government shall advance to the Fund or Special Fund an amount sufficient to allow the payment of the said sum.

(1) Subject to this Ordinance every person who is employed under a contract of service in Tuvalu shall be covered by this Ordinance and shall be liable to pay contributions.

(2) For the purposes of establishing liability for the payment of contributions there shall be the following groups of contributor — Group 1 - employed persons, Group 2 - employers, and, subject to subsection (3), Group 3 - voluntary members.

(3) Regulations may provide for the terms and conditions under which a person may be eligible to become a voluntary member and pay contributions on his own behalf.

(4) Contributions to the Fund shall be payable at the rate prescribed by the Minister in regulations.

(1) Regulations may provide for exceptions from liability to pay contributions under section 12 in respect of persons or categories of persons including those who are —

(d) recruited from any overseas territory under any aid, volunteer or other similar scheme agreed with the government of the overseas territory, whether or not any part of the person’s emoluments is paid by, or on behalf of the Government of Tuvalu; or

(2) Regulations may provide for exceptions from, or variations in, the liability to pay contributions in respect of persons or categories of persons who are covered by an international convention or a reciprocal agreement made between the Governments of Tuvalu and any other country.

(a) the registration of employed persons, employers and voluntary members covered under section 12;

(b) the payment and collection of contributions, including surcharges on contributions not paid by the proper time;

(c) the maintenance by employers of records of payment of wages, payment of contributions and any other matter as may be considered necessary to ensure the compliance with and discharge of liabilities under this Ordinance;

(2) Every inspector shall be furnished with a certificate of his appointment signed under the authority of the Minister, and, if so required on applying for admission to any premises or exercising any power vested in him by this Ordinance, shall produce the certificate for inspection.

(3) An inspector appointed under this section shall for the purposes of this Ordinance have the power to —

(a) enter at all reasonable times any premises or place where he has reason to believe that any person is employed;

(b) ascertain by examination and enquiry whether the provisions of this Ordinance are being complied with;

(c) Question any employer, employed person or any other person on any matter concerning the application of or compliance with any of the provisions of this Ordinance;

(d) require on written application the production, at any reasonable time and place, of any document or records as he may require to examine under paragraph (b);

(e) seize and detain any document or thing which may be of evidential value in a prosecution for an offence against this Ordinance; and

The Minister or, a person authorized by him may, where he is satisfied that the payment of a contribution or any surcharge would cause hardship, waive the liability or part thereof as he may consider appropriate.

(1) Notwithstanding that any contribution or part of a contribution has not been paid in respect of any employed person, the Board may, if it is satisfied that —

(b) the failure to pay was not due to the consent or connivance of the employed person concerned; and

(i) by the time the amount of interest to be credited to the member’s account is due for calculation, or

credit the employed person’s account with the amount of the contributions which should have been paid in respect of him and shall charge the amount so credited to the Fund.

(2) Nothing in this section shall prejudice the right of the Board to recover the amount of any unpaid contribution, together with any penalty due under section 14, from the employer.

(1) The account of each member shall be credited with the amount of the contributions paid during each financial year by or in respect of that member.

(2) Upon the declaration by the Board of a rate of interest for that year under section 10, interest at that rate shall be added to the amount standing to his credit at the end of that year in such a manner as may be prescribed in regulations.

(1) Immediately after interest under section 18 has been added to each member’s account, the amount as prescribed in subsection (2) shall be deducted from each account and credited to the Special Fund.

(2) Until such time as regulations may otherwise provide, the amount to be deducted from each member’s account shall be the sum of $5.00.

(3) Where the amount in a member’s account is less than $5.00 the whole amount standing to his credit shall be deducted.

The benefits payable under this Ordinance shall be of the following descriptions, namely —

(a) retirement benefit, that is to say a lump sum payment to a member who has attained the age of 45 years and has permanently retired from employment;

(b) age benefit, that is to say a lump sum payable to a member, subject to section 23(1), who has attained the age of 55 years whether or not he has permanently retired from employment;

(c) incapacity benefit, that is to say a lump sum payment in respect of a member who is physically or mentally incapable of engaging in any further employment;

(d) emigration benefit, that is to say a lump sum payable to a member who is about to leave or has already left Tuvalu with no intention of returning thereto;

(e) woman’s home benefit, that is to say a lump sum payable to a member being a woman who has permanently left employment for the purpose of caring for her husband or children;

(f) death benefit, that is to say a lump sum payable in respect of a member who has died;

(g) special death benefit, that is to say a lump sum payable to the dependant of a deceased member in respect of whom entitlement under subsections (a), (b), (c). (d), and (e) has not arisen.

Regulations may provide for the appointed day appropriate to any or all of the benefits described in section 20 to be different from the appointed day appropriate for the general entry into force of this Ordinance.

(1) Regulations may provide that entitlement to benefit shall be conditional upon —

(a) a claim for benefit being made within a prescribed time - (provided that any such regulation shall provide also for extending the time limit within which the claim is to be made where good cause is shown for the delay); and

(b) a certificate by the claimant concerning his intention permanently to retire or cease employment; or

(d) production, where appropriate, of medical evidence of the condition of the incapacity of a member; and

(e) production by the claimant of a certificate of birth, marriage, or death, as the case may require; and

shall be accepted by the Board in connection with a claim only when in the form or obtained in the manner prescribed.

(3) Regulations may provide, for the purpose of controlling claims for benefit, that the Board may —

(a) require a person claimed to be physically or mentally incapable of further employment to attend a medical examination by, or appear before, a medical board; or

(b) make or cause to be made enquiries necessary to prevent abuse or fraud or to safeguard the Fund.

(1) Entitlement to benefit under section 20( a), (b), (d) and (e) shall be discharged by the issue to the claimant of a non-negotiable cheque or order for the amount standing to the credit of the member concerned.

Provided that a person who qualifies for benefit under section 20«(b) and continues to, or returns to, work shall not be entitled to receive benefit subsequently under that provision until he finally retires.

(2) Entitlement to benefit under section 20(c) and (f) shall be discharged by the issue to the claimant or claimants of a non-negotiable cheque or order for the proportion of the amount standing to the credit of the member concerned to which title has been proved.

(3) Entitlement to benefit under section 20(g) shall be discharged by the issue of a non-negotiable cheque or order for the amount provided under subsection (5) and to which title has been proved.

(4) Regulations may provide, for the purpose of this section, for the manner in which —

(a) the final amount standing to the credit of the person concerned is calculated;

(5) Until such time as regulations may otherwise provide, the maximum amount of special death benefit payable under this Part shall be equal to 100 times the amount of the deduction made under section 19(2).

(6) Notwithstanding anything in any other law a person resident in another country who would be entitled to receive benefit payable under this Ordinance if he were living in Tuvalu shall be entitled to receive that benefit in the other country.

(1) Where a large number of claims for benefit is made the Board may, notwithstanding section 23, with the approval of the Minister pay benefit by instalments.

(2) On application by a claimant entitled to a lump sum, the Board may, notwithstanding section 23, with the approval of the Minister pay benefit as an annuity.

(1) A member may by a memorandum executed in the form prescribed in regulations, nominate a person or persons to receive the amount, or portion of the amount, payable under section 20( f) in the event of his death as the memorandum shall indicate.

(2) Regulations may provide that the Board may require a member who does not nominate a person or persons under this section to declare in writing that he does not desire so to do.

(3) The subsequent marriage of a nominator shall render any nomination null and void.

(4) Where a nominated person is under the age of 18 years at the time entitlement arises, the board may direct that benefit shall be paid to an adult who shall use it to maintain, or to the advantage of, the nominated person until he reaches the age of 18 years.

(1) Regulations may provide for determination by the Manager, by the Board, by the Medical Board or by the Minister of any question arising under or in connection with this Ordinance including any claim for benefit, and that the decision in accordance therewith shall be final.

(a) the procedure, the form of any document, the evidence required and the circumstances in which any official record or certificate is sufficient or conclusive evidence;

(b) the time allowed for making a claim or appeal, questioning any decision, or for producing any evidence;

(c) summoning persons to attend and give evidence or produce documents and authorizing the administration of oaths to witnesses; and

(a) the reference to the senior magistrate of any question of law arising in connection with the determination of any question under the regulations; and

(b) appeal to the High Court from the decision of the senior magistrate under paragraph (a).

(1) There shall be established a Medical Board appointed by the Minister responsible for health matters, consisting of two or more medical practitioners, of whom one shall be appointed chairman.

(2) The Medical Board shall consider or decide on all medical matters connected with the entitlement to or payment of benefit and in particular the incapacity of a member under section 20(c) and any regulations made under section 22.

(a) to a person appointed to the Board or the Medical Board, a fee or other remuneration; and

(b) to a person to whom paragraph (a) applies or a person required to appear before the Board or Medical Board, any expenses in connection with his work, loss of earnings or travel incurred because of his appearance as is shown to be reasonable.

(ii) produces or furnishes or causes or knowingly allows to be produced or furnished, any document which he knows to be false in a material particular,

(b) without lawful excuse fails to register when required to do so by regulations made under section 14;

(c) fails to pay by the proper time any contribution, surcharge or payment which he is liable under this Ordinance to pay;

(d) fails to furnish within the prescribed time any particulars, returns or other information required by this Ordinance;

(e) obstructs any inspector or officer of the Fund in the discharge of his functions under this Ordinance;

(f) knowingly and with dishonest intent makes any deduction from any wages, or having made such deduction, fails to pay to the Fund any amount so deducted, otherwise than is provided under regulations in terms of section 14; or

(g) contravenes any provision of this Ordinance in such a manner or to such an extent that as a result of such contravention there is a loss to the Fund;

shall be guilty of an offence and liable to a fine of $1000.00 and to imprisonment for 2 years and in the case of a continuing offence, to a fine of $100.00 for each day for which the offence continues.

(2) Where an offence under this Ordinance which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any negligence on the part of, any director, manager, secretary or other officer of the body corporate he, as well as the body corporate, shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(a) evidence in the form of a certificate signed by the Manager is given of the failure by the defendant to pay other contributions; and

the court shall order him to pay to the Fund a sum equal to the total of all the contributions which he has failed to pay, together with any surcharge for which he may be liable and any sum so ordered to be paid to the Fund shall be recoverable in the same way as a fine.

(4) Where an employer is convicted of an offence of failure to pay a contribution in respect of an employed person the provisions of subsection (3) shall also apply to any contribution he has failed to pay in respect of any other employed person.

(5) Where an employer being a body corporate has been ordered to pay contributions to the Fund under this section, any sum or part thereof which remains unpaid shall be recoverable as a debt to the Fund jointly and severally from any directors of the body corporate who knew or could reasonably be expected to have known of the failure to pay the contributions in Question.

(1) All sums due to the Fund shall be recoverable as a civil debt without prejudice to any other remedy.

(2) Proceedings for the recovery of all sums due may, notwithstanding anything in any other law, be brought at any time within 6 years from the date when they became due.

(1) Subject to the powers of the Attorney General under the Constitution, criminal and civil proceedings under this Ordinance may be instituted by the Board or any officer authorized in writing on their behalf.

(2) The Manager or any officer authorized by him may conduct any proceedings in a magistrate’s court.

(3) In any criminal or civil proceedings under this Ordinance a copy of any entry in the records or accounts of the Fund or any extract therefrom duly certified by the Manager shall be prima facie evidence of the entry having been made and of the truth of the contents thereof and a certificate by the Manager that there is no entry shall be prima facie evidence that no entry has been made.

"3A. Notwithstanding the provisions of this section, all income of the Tuvalu Provident Fund, all interest credited to members of that Fund, and all sums withdrawn from, or paid out of that Fund except for fees, salaries or allowances paid to members of boards established under the Provident Fund Ordinance 1984, officers and staff employed by that Fund, and witnesses or other persons required to attend any place for the purposes of the Provident Fund Ordinance 1984 shall be exempted from income tax."; and

(b) inserting in section 12(1)(e) after the word "employer" the words "or employee".

Notwithstanding the provisions of this Ordinance, arrangement under the law in force immediately prior to the commencement of this Ordinance, including —

shall be deemed to have been made for the purposes of this Ordinance and shall continue in force as if made as a consequence of this Ordinance.

36 Termination, preservation or transfer of existing pension, gratuity or provident fund rights

(1) Where immediately before the commencement of this Ordinance a person was in a pensionable post within the meaning of —

then an amount, calculated as in Schedule I, in respect of his service to the 31st day of March 1984 shall be paid into the Fund and credited to his account as if it were a contribution.

(2) Where immediately before the commencement of this Ordinance a person was in receipt of a pension from the Government —

and would but for this Ordinance have continued to receive that pension then he shall, subject to subsection~ (3), be paid such sums out of the Fund as he would have received from the Government had this Ordinance not been enacted.

(3) A person who is entitled to receive payment from the Fund under subsection (2) may elect to receive from the Fund a lump sum in lieu of that payment.

(4) For the purposes of subsections (2) and (3), the Government shall pay into the Fund the sums specified in Schedule I.

(5) From the date of commencement of this Ordinance any other provident fund operating in Tuvalu shall be terminated and the amount standing to the credit of any member of that fund shall be transferred to the Fund and credited to his account as if it were a contribution.

(6) From the date of commencement of this Ordinance any gratuity arrangement operating in Tuvalu shall cease and any accrued right to a gratuity shall be discharged by

whichever shall be agreed between the employer and the employed person or group of employed person concerned.

(a) to whom section 36(1)( a) applies, a sum calculated as in paragraph 2( a) of this Schedule;

(b) to whom section 36(1)(b) applies, a sum calculated as in paragraph 2(b) of this Schedule; and

2. The sums that shall be paid into the Fund under paragraph 1 shall be calculated using the following formulae —

(ii) N is the number of complete months of pensionable service or continuous service, as the case may be,

(iii) AI, A2 and A3 are the actuarial factors appropriate to the person concerned according to the tables in paragraph 3 of this Schedule, and

(iv) P is the annual amount of the pension in payment immediately prior to the commencement of this Ordinance.

Age	Table A1	Table A2	Table A3
Under 20	6.0	5.4	-
20	6.1	5.5	-
21	6.2	5.6	-
22	6.3	5.7	-
23	6.4	5.8	-
24	6.5	5.9	-
25	6.6	6.0	-
26	6.7	6.1	-
27	6.8	6.2	-
28	6.9	6.3	-
29	7.0	6.4	-
30	7.1	6.5	-
31	7.2	6.6	-
32	7.3	67	-
33	7.4	6.8	-
34	7.5	69	-
35	7.7	7.1	-
36	7.9	7.3	-
37	8.1	7.5	-
38	8.3	7.7	-
39	8.5	7.9	-
40	8.7	8.1	8.76
41	8.9	8.3	8.70
42	9.1	8.5	8.64
43	9.3	8.7	8.57
44	9.5	8.9	8.50
45	9.7	8.9	8.43
46	9.7	8.9	8.35
47	9.7	8.9	8.26
48	9.7	8.9	8.17
49	9.7	8.9	8.08
50	9.7	8.9	7.98
51	9.7	8.9	7.88
52	9.7	8.9	7.77
53	9.7	8.9	7.65
54	9.7	8.9	7.53
55	9.7	8.9	7.40
56	9.7	8.9	7.27
57	9.7	8.9	7.14
58	9.7	8.9	6.99
59	9.7	8.9	6.85
60	9.7	8.9	6.69
61	9.7	8.9	6.54
62	9.7	8.9	6.37
63	9.7	8.9	6.21
64	9.7	8.9	6.04

(1) For the purposes of determining a claim for benefit, the day of receipt of the claim by the Fund shall be deemed to be the date of the claim.

(2) Where a claim is defective at the date of its receipt by the Fund, the Manager may refer the claim to the claimant and, if the form is returned to the Fund within one month from the date on which it is~ 50 referred, the claim may be treated as if it had been properly made in the first instance.

(3) A person who makes a claim for benefit may amend his claim at any time before a decision has been given thereon, by notice in writing delivered or sent to the office of the Fund, and any claim 50 amended may be treated as if it had been properly made in the first instance.

(1) Except as otherwise provided the time limit for claiming benefit shall be not later than 12 calendar months after the date of the event on which the claim for benefit is based - provided that this time limit shall be extended where the claimant can show good cause for the delay in making the claim.

(2) For the purpose of elections under section 36(3) to receive a lump sum in lieu of a pension, the Minister may direct that invitations be issued stipulating a time limit by which date any election must be made.

(1) Subject to these Regulations retirement benefit shall be payable to a member who, having attained the age of 45 years, permanently retires from employment.

(2) For the purpose of sub-regulation (1) a claimant for retirement benefit shall furnish —

(b) a certificate on an approved form of his intention permanently to retire; and

(1) Subject to these Regulations age benefit shall be payable to a member who has attained the age of 55 years.

(2) For the purpose of sub-regulation (1) a claimant for age benefit shall furnish —

Legislation	Year and No	Commencement

Original	Current

Tuvalu Consolidated Legislation

Provident Fund Ordinance 1984