10Circumstances where part of salary or wages of temporary employee not to be treated as salary

#### 10 Circumstances where part of salary or wages of temporary employee not to be treated as salary (1) Where an eligible employee, being a temporary employee, performs prescribed work on a particular day, so much of the salary or wages of the eligible employee as is equal to the amount of the difference between: (a) the basic salary of the eligible employee on the particular day; and (b) the basic salary that would be payable to the eligible employee on the particular day if the eligible employee had continued to perform, and performed on that day, the work referred to in whichever of subparagraphs 9(2)(a)(i), (ii) and (iii) applies in relation to the eligible employee; is not to be treated as salary for the purposes of the Act unless: (c) the eligible employee has, during the period of 12 months immediately preceding the particular day, continuously performed prescribed work; or (d) a certificate specifying a day not later than the particular day has been given under subregulation (3) in respect of the eligible employee. (2) Where: (a) an eligible employee, being a temporary employee, performs prescribed work on a particular day; (b) the eligible employee has: (i) during a period of not less than 12 months immediately preceding the particular day; or (ii) if a certificate specifying a day not later than the particular day has been given in respect of the eligible employee under subregulation (3)—from and including the day specified in the certificate; continuously performed prescribed work; and (c) at any time during the relevant period the basic salary of the eligible employee was less than the basic salary that would have been payable at that time to the eligible employee if at that time the eligible employee had been performing the work performed by him or her on the particular day; so much of the salary or wages of the eligible employee as is equal to the difference between: (d) the basic salary of the eligible employee on the particular day; and (e) the basic salary that would be payable to the eligible employee on the particular day if the eligible employee had continued to perform, and performed on that day, the prescribed work that the eligible employee performed at the time during the relevant period when the basic salary of the eligible employee was less than the basic salary payable to him or her at any other time during that period; is not to be treated as salary for the purposes of the Act. (3) If the Commissioner is of the opinion that there is a likelihood that, from and including a particular day: (a) an eligible employee, being a temporary employee, will perform prescribed work for a continuous period of not less than 12 months; or (b) where the eligible employee, being a temporary employee, has performed prescribed work for a continuous period of less than 12 months immediately preceding the particular day—the eligible employee will perform prescribed work for a continuous period of less than 12 months that together with the first‑mentioned period will not be less than a period of 12 months; the Commissioner shall give a certificate to that effect specifying the day (not being a day earlier than the day on which the certificate is given) on which the period referred to in paragraph (a) or (b), as the case may be, in relation to the eligible employee will commence. (4) For the purposes of this regulation, where: (a) an eligible employee, being a temporary employee, performs prescribed work for a continuous period immediately preceding a period of leave of absence; (b) subregulation (5) does not apply in relation to the period of leave; and (c) immediately after the expiration of that period of leave, the eligible employee again performs prescribed work; the period of leave shall be disregarded and the periods during which he performs prescribed work, being the period immediately preceding that period of leave and the period immediately following that period of leave, shall be treated as a continuous period. (5) Where: (a) an eligible employee, being a temporary employee, performs prescribed work immediately before a period of leave of absence; and (b) the salary payable to the eligible employee on each day during the period of leave of absence is higher than the basic salary of the eligible employee in respect of that day; the eligible employee shall, for the purposes of this regulation, be deemed to perform during that period the prescribed work referred to in paragraph (a). (6) In subregulation (2), relevant period, in relation to an eligible employee who, being a temporary employee, performs prescribed work on a particular day, means: (a) if paragraph (b) does not apply—the period of 12 months immediately preceding the particular day; or (b) if the eligible employee has, for a continuous period of less than 12 months immediately preceding the particular day, performed prescribed work—that lesser period.