8DAnnual rate of salary of eligible employee who has received shift allowance on a regular basis during period of 12 months

#### 8D Annual rate of salary of eligible employee who has received shift allowance on a regular basis during period of 12 months (1) Where: (a) a person is on a particular day, and has been for a continuous period of not less than 12 months immediately preceding that day, an eligible employee; (b) the person (whether or not he or she is on the particular day a prescribed eligible employee) was, during the whole or any part of the period of 12 months immediately preceding that day, a prescribed eligible employee; and (c) shift allowance has been payable on a regular basis to the person during the period referred to in paragraph (b); the annual rate of salary of the person on the particular day shall, for the purposes of the Act, be an amount equal to whichever is the less of: (d) the amount per annum ascertained in accordance with the formula: ; and (e) the amount per annum ascertained in accordance with the formula:  where: > A is the highest amount of salary paid or payable to the person in respect of a pay period in relation to the person included in the period of 12 months immediately preceding the particular day; > B is the number of pay periods in relation to the person included in the period of 12 months immediately preceding the particular day; > C is the annual rate of the salary (within the meaning of section 5 of the Act) that would be payable to the person on the particular day if the salary or wages payable to the person on that day did not include an amount in respect of shift allowance; and > D is: (f) if paragraph (g) or (h) does not apply—the total amount of shift allowance paid or payable to the person in respect of: (i) work or duties performed during the pay periods in relation to the person included in the period of 12 months immediately preceding the particular day; and (ii) any period of leave of absence during that period when the person was entitled to receive shift allowance; (g) if paragraph (h) does not apply and shift allowance: (i) in respect of work or duties performed by the person during specified hours of duty (in this paragraph referred to as the relevant hours) on any day during the period of 12 months immediately preceding the particular day; or (ii) in respect of any period of leave of absence during that period when the person was entitled to receive shift allowance; was payable to the person at a rate that is not the same as the rate at which shift allowance would be payable to the person: (iii) in respect of the same work or duties if the person performed that work or those duties during the same relevant hours on the particular day; or (iv) if the person were on leave of absence on the particular day; as the case may be—the total amount of shift allowance that would have been payable to the person in respect of: (v) work or duties performed during the pay periods in relation to the person included in the period of 12 months immediately preceding the particular day; and (vi) periods of leave of absence included in that period when the person was entitled to receive shift allowance; if shift allowance in respect of the work or duties referred to in subparagraph (i) or in respect of the period of leave of absence referred to in subparagraph (ii) had been payable to the person at the last‑mentioned rate; or (h) if, at any time during the period of 12 months immediately preceding the particular day, the person was an approved part‑time employee—the amount ascertained in accordance with the formula:  where: E is: (i) in the case of a person in relation to whom paragraph (f) would, but for this paragraph, have applied—the total amount of shift allowance referred to in that paragraph; or (ii) in the case of a person in relation to whom paragraph (g) would, but for this paragraph, have applied—the total amount of shift allowance referred to in that paragraph; F is the total number of hours that would have been the normal hours of duty of the person during that period of 12 months if during the whole of that period the person had performed his or her work or duties on a full‑time basis; and G is the total number of hours that, in accordance with the terms and conditions of employment applying from time to time to the person during that period of 12 months, were the normal hours of duty of the person during that period. (2) For the purposes of subregulation (1): (a) the reference in the definition of A to the amount of salary paid or payable to a person in respect of a pay period in relation to the person is a reference to: (i) in a case where subparagraph (ii) does not apply—the amount of salary (within the meaning of section 5 of the Act) paid or payable to the person in respect of the pay period or, if during the whole or part of the pay period the person was an approved part‑time employee, an amount of salary equal to the amount ascertained: (A) except where sub‑subparagraph (B) applies—in accordance with the formula: ; or (B) where the salary (within the meaning of section 5 of the Act) of the person in respect of the pay period or that part of the pay period when the person was an approved part‑time employee (as the case may be) included an allowance that was payable to the person in an amount that is the same as the amount that the person would have received in respect of that allowance if the person had, during the pay period or that part of the pay period, performed his or her work or duties on a full‑time basis—in accordance with the formula: ; or (ii) in a case where, by virtue of regulation 8C, an amount (in this subparagraph referred to as the relevant amount) equal to an amount in respect of shift allowance included in the salary or wages paid or payable to the person in respect of that pay period is not, in relation to the person, to be treated as salary for the purposes of the Act—the aggregate of the amount of salary first mentioned in subparagraph (i) in relation to the person and the relevant amount or, if during the whole or part of the pay period the person was an approved part‑time employee, an amount of salary equal to the amount ascertained: (A) except where sub‑subparagraph (B) applies—in accordance with the formula: ; or (B) where the salary (with the meaning of section 5 of the Act) of the person in respect of the pay period or that part of the pay period when the person was an approved part‑time employee (as the case may be) included an allowance that was payable to the person in an amount that is the same as the amount that the person would have received in respect of that allowance if the person had, during the pay period or that part of the pay period, performed his or her work or duties on a full‑time basis—in accordance with the formula: ; where: B is: (iii) in the case of a person in relation to whom subparagraph (i) applies—the amount of salary first‑mentioned in that subparagraph in relation to the person; or (iv) in the case of a person in relation to whom subparagraph (ii) applies—the amount of the aggregate referred to in that subparagraph in relation to the person; C is: (v) in the case of a person in relation to whom sub‑subparagraph (i)(B) applies—the amount of the allowance referred to in that sub‑subparagraph payable to the person in respect of the pay period or that part of the pay period when the person was an approved part‑time employee (as the case may be); or (vi) in the case of a person in relation to whom sub‑subparagraph (ii)(B) applies—the amount of the allowance referred to in that sub‑subparagraph payable to the person in respect of the pay period or that part of the pay period when the person was an approved part‑time employee (as the case may be); D is the number of hours that would have been the normal hours of duty of the person for the pay period if during the whole of that period the person had performed his or her work or duties on a full‑time basis; and E is the number of hours that, in accordance with the terms and conditions of employment applying in relation to the person in respect of the pay period, were the normal hours of duty of the person for that pay period; and (b) a reference in paragraph (1)(g) to the rate at which shift allowance in respect of work or duties performed during specified hours of duty on a day or in respect of a period of leave of absence was, or would be, payable to a person shall, in the case of a person to whom the shift allowance is, under the terms and conditions of his or her employment, payable in a fixed amount and not at a specified rate, be read as a reference to the amount so fixed in respect of the shift allowance that was, or would be, payable to the person.