8EAnnual rate of salary on last day of service of certain persons who have ceased to be eligible employees

#### 8E Annual rate of salary on last day of service of certain persons who have ceased to be eligible employees (1) In this regulation, final year of service, in relation to a person who has ceased to be an eligible employee and has been, immediately before his or her so ceasing, an eligible employee for a continuous period of not less than 12 months, means the period of 12 months ending on the expiration of his or her last day of service. (2) This regulation applies to a person who: (a) has ceased to be an eligible employee by reason of: (i) death; or (ii) retirement on the ground of invalidity before attaining his or her maximum retiring age; and (b) was not, on his or her last day of service, a person in relation to whom regulation 8D applied. (3) Where this regulation applies to a person and: (a) the person: (i) immediately before his or her ceasing to be an eligible employee, has been an eligible employee for a continuous period of not less than 12 months; and (ii) has been during the whole or any part of his or her last year of service a prescribed eligible employee; and shift allowance has been payable on a regular basis to the person during that year; or (b) if paragraph (a) does not apply in relation to the person: (i) the person became a prescribed eligible employee within the period of 12 months ending on the expiration of his or her last day of service; (ii) shift allowance has been payable on a regular basis to the person during the period commencing on the day within the period referred to in subparagraph (i) on which the person became a prescribed eligible employee or, if the person became a prescribed eligible employee on more than one occasion within that period, on the day within that period on which the person last became a prescribed eligible employee and ending on the expiration of his or her last day of service; and (iii) a certificate in respect of the person has been given under subregulation (4); then, the annual rate of salary of the person on his or her last day of service shall be an amount equal to whichever is the less of: (c) the amount ascertained in accordance with the formula: ; and (d) the amount ascertained in accordance with: (i) in the case of a person in relation to whom paragraph (a) applies—the formula: ; or (ii) in the case of a person in relation to whom paragraph (b) applies—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: (e) in the case of a person in relation to whom paragraph (a) applies—in his or her final year of service; or (f) in the case of a person in relation to whom paragraph (b) applies—in the period referred to in subparagraph (b)(ii); > B is: (g) except where paragraph (h) applies—the number of pay periods in relation to the person included in his or her final year of service; or (h) if the person has been an eligible employee for a continuous period of less than 12 months immediately preceding his or her last day of service—the number of pay periods in relation to the person that would have been included in the period of 12 months ending on the expiration of his or her last day of service if the person had been an eligible employee during the whole of that period; > C is the annual rate of the salary (within the meaning of section 5 of the Act) payable to the person on his or her last day of service; > D is: (j) if paragraph (k) or (ka) 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 his or her final year of service; and (ii) any period of leave of absence during that year when the person was entitled to receive shift allowance; (k) if paragraph (ka) 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 his or her final year of service; or (ii) in respect of any period of leave of absence during that year 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 his or her last day of service; or (iv) if the person were on leave of absence on his or her last day of service; 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 his or her final year of service; and (vi) periods of leave of absence included in that year 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 (ka) if, at any time during his or her final year of service, the person was an approved part‑time employee—the amount ascertained in accordance with the formula:  where: > H is: (i) in the case of a person in relation to whom paragraph (j) 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 (k) would, but for this paragraph, have applied—the total amount of shift allowance referred to in that paragraph; > J is the total number of hours that would have been the normal hours of duty of the person during his or her final year of service if during the whole of that year the person had performed his or her work or duties on a full‑time basis; and > K 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 his or her final year of service, were the normal hours of duty of the person during that year; > E is: (m) if paragraph (n) or (na) 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 referred to in subparagraph (b)(ii) in relation to the person; and (ii) any period of leave of absence during that period when the person was entitled to receive shift allowance; (n) if paragraph (na) 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 referred to in subparagraph (b)(ii) in relation to the person; 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 his or her last day of service; or (iv) if the person were on leave of absence on his or her last day of service; 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 referred to in subparagraph (b)(ii) in relation to the person; 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 (na) if, at any time during the period referred to in subparagraph (b)(ii) in relation to the person, the person was an approved part‑time employee—the amount ascertained in accordance with the formula:  where: > H is: (i) in the case of a person in relation to whom paragraph (m) 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 (n) would, but for this paragraph, have applied—the total amount of shift allowance referred to in that paragraph; > J is the total number of hours that would have been the normal hours of duty of the person during the period referred to in subparagraph (b)(ii) in relation to the person if during the whole of that period the person had performed his or her work or duties on a full‑time basis; and > K 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 the period referred to in subparagraph (b)(ii) in relation to the person, were the normal hours of duty of the person during that period; > F is: (o) except where paragraph (p) applies—the number of days in the pay periods in relation to the person included in his or her final year of service; or (p) if the person was an eligible employee for a continuous period of less than 12 months immediately preceding his or her last day of service—the number of days in the pay periods in relation to the person that would have been included in the period of 12 months ending on the expiration of his or her last day of service if the person had been an eligible employee during the whole of that period; and > G is the number of days in the pay periods in relation to the person included in the period referred to in subparagraph (b)(ii) in relation to the person. (4) Where: (a) subparagraphs (3)(b)(i) and (ii) apply in relation to a person to whom this regulation applies; and (b) the Commissioner is of the opinion that there is a likelihood that, if the first‑mentioned person had not ceased to be an eligible employee, shift allowance would have been payable on a regular basis to the person during the period of 12 months that commenced on the day on which the period referred to in subparagraph (3)(b)(ii) in relation to the person commenced; the Commissioner shall give a certificate to that effect specifying the day on which the first‑mentioned period commenced. (5) For the purposes of subregulation (3): (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 the amount (in this paragraph referred to as the relevant amount) of the aggregate of: (i) 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; and (ii) the amount, being an amount equal to the amount in respect of shift allowance included in the salary or wages paid or payable to the person in respect of that pay period, that, by virtue of regulation 8C, is not, in relation to the person, to be treated as salary for the purposes of the Act; 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: (iii) except where subparagraph (iv) applies—in accordance with the formula: ; or (iv) 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 where: B is the relevant amount; C is the amount of the allowance referred to in subparagraph (iv) 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; (b) a reference in paragraph 3(k) or (n) 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 a case where the shift allowance is, under the terms and conditions of employment of the person, 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.