Statutory Rules 1985 No. 3261
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Superannuation (Salary) Regulations2 (Amendment)
I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Superannuation Act 1976.
Dated 28 November 1985.
N. M. STEPHEN
Governor-General
By His Excellency’s Command,
Minister of State for Finance
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Principal Regulations
1. In these Regulations, “Principal Regulations” means the Superannuation (Salary) Regulations.
Interpretation
2. Regulation 3 of the Principal Regulations is amended by omitting from sub-regulation (2) “III,”.
Interpretation
3. Regulation 4 of the Principal Regulations is amended by omitting paragraph (b).
4. After Part II of the Principal Regulations the following Part is inserted:
(S.R. 343/85)—Cat. No. 10/18.11.1985
“PART IIA—EMPLOYEES IN RECEIPT OF SHIFT ALLOWANCE
Interpretation
“8a. (1) In this Part—
‘pay period’, in relation to a person who is, or has ceased to be, an eligible employee, means—
(a) where the first day of service of the person is not a pay day in relation to the person—the period commencing on the first day of service of the person and ending on the expiration of the day immediately preceding the pay day in relation to the person first occurring after his or her first day of service;
(b) each period commencing on a pay day in relation to the person (not being the pay day in relation to the person last preceding his or her last day of service) and ending on the expiration of the day immediately preceding the next following pay day in relation to the person;
(c) the period commencing on the pay day in relation to the person last preceding his or her last day of service and ending on the expiration of his or her last day of service; and
(d) where there is no pay day in relation to the person that falls within the period commencing on his or her first day of service and ending on the expiration of his or her last day of service—that period;
‘prescribed eligible employee’ means an eligible employee who is, under the terms and conditions of his or her employment, entitled to receive as part of his. or her salary or wages, in addition to the amount payable to the eligible employee in respect of the actual performance of his or her work or duties, an amount that is payable to the eligible employee solely by reason that the eligible employee has performed work or duties during specified hours that are, under those terms and conditions of employment, normal hours of duty for the eligible employee;
‘shift allowance’ means—
(a) so much of the salary or wages of a prescribed eligible employee as is, under the terms and conditions of his or her employment, payable to the prescribed eligible employee solely by reason that the prescribed eligible employee has performed work or duties during specified hours that are, under those terms and conditions of employment, normal hours of duty for the prescribed eligible employee; and
(b) where a prescribed eligible employee is, under the terms and conditions of his or her employment, entitled to receive, as part of his or her salary or wages in respect of a period of leave of absence, an amount that is payable to the prescribed eligible employee in lieu of any amount of salary or wages of the kind referred to in paragraph (a) that the prescribed eligible employee would have been likely to earn if the eligible employee had not been on leave of absence during that period—so much of the salary or wages of the prescribed eligible employee as is so payable to him or her.
“(2) Where it is necessary to ascertain, for the purposes of this Part, the number of pay periods in relation to a person who is, or has ceased to be, an eligible employee that are included in a particular period, then—
(a) except where paragraph (b) applies in relation to the particular period—
(i) if the commencement of the particular period coincides with the commencement of a pay period in relation to the person but the expiration of the particular period does not coincide with the expiration of that pay period or a subsequent pay period in relation to the person, the pay period in relation to the person that commences on the last of the pay days in relation to the person that fall within the particular period shall be taken as not being included in the particular period;
(ii) if the commencement of the particular period does not coincide with the commencement of a pay period in relation to the person but the expiration of the particular period coincides with the expiration of such a pay period, the pay period in relation to the person that ends on the day immediately preceding the pay day, or the first of the pay days, in relation to the person that falls or fall within the particular period shall be taken as not being included in the particular period; and
(iii) if the commencement of the particular period does not coincide with the commencement of a pay period in relation to the person and the expiration of the particular period does not coincide with the expiration of such a pay period—
(A) the pay period in relation to the person that ends on the day immediately preceding the pay day, or the first of the pay days, in relation to the person that falls or fall within the particular period shall be taken to be included in the particular period; and
(B) the pay period in relation to the person that commences on that pay day or the last of those pay days shall be taken as not being included in the particular period; or
(b) if the particular period consists only of a part of a pay period in relation to the person—that pay period shall be taken to be included in the particular period.
“(3) Where—
(a) a person who is, or was at any time, a prescribed eligible employee has been, or was, on leave of absence for part of a period during which the person has been, or was, a prescribed eligible employee; and
(b) the person was not, during the period of leave of absence, entitled to be paid an amount in respect of shift allowance,
then—
(c) in ascertaining, for the purpose of the application of paragraph 8c (a) or 8d (1) (a) to and in relation to the person, the length and continuity of any period (in this sub-regulation referred to as a ‘relevant period’) of which the period of leave of absence is a part—the period of leave of absence shall be treated as being an integral part of the relevant period; and
(d) in ascertaining, for the purpose of the application of a provision of this Part other than paragraph 8c (a) or 8d (1) (a) to and in relation to a person, the length and continuity of a relevant period—
(i) if more than one pay day in relation to the person falls within the period of leave of absence—
(A) the period commencing on the first of the pay days in relation to the person that fall within the period of leave of absence and ending on the day immediately preceding the last of those pay days shall be disregarded; and
(B) the parts of the relevant period that, but for this paragraph, would have been taken to be separated by the period referred to in sub-sub-paragraph (a) shall be deemed to be continuous;
(ii) if only one pay day in relation to the person falls within the period of leave of absence and the expiration of the period of leave of absence coincides with the expiration of the pay period in relation to the person that commences on that pay day or with the expiration of the relevant period—
(A) the pay period commencing on that pay day or the period commencing on that pay day and ending on the expiration of the relevant period (as the case requires) shall be disregarded; and
(B) the day immediately preceding that pay day and the day immediately following that pay period or the relevant period (as the case may be) shall be deemed to be consecutive days; or
(iii) if sub-paragraph (i) or (ii) does not apply—the period of leave of absence shall be treated as being an integral part of the relevant period.
Payment of shift allowance on a regular basis
“8. bFor the purposes of this Part, shift allowance shall not be taken to have been, during a particular period, payable on a regular basis to an eligible employee who has been during the whole or any part of that period a prescribed eligible employee unless shift allowance has been paid, or is payable, to the eligible employee in respect of work or duties performed during a number of the pay periods in relation to the eligible employee that are included in that particular period that is equal to not less that 75 per cent of the total number of those pay periods.
Circumstances where part of salary or wages not to be treated as salary for purposes of Act
“8c. Where the salary or wages of a prescribed eligible employee on a particular day includes, or include, an amount in respect of shift allowance, so much of that salary or those wages as is equal to the amount in respect of shift allowance is not to be treated as salary for the purposes of the Act unless—
(a) the prescribed eligible employee has been an eligible employee for a continuous period of not less than 12 months immediately preceding that day; and
(b) shift allowance has been payable on a regular basis to the prescribed eligible employee during the period of 12 months immediately preceding that day.
Annual rate of salary of eligible employee who has received shift allowance on a regular basis during period of 12 months
“8d. (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 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 work or duties performed by the person during 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 amount per annum 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) 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; or
(g) if 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 sub-paragraph (ii) had been payable to the person at the last-mentioned rate.
“(2) For the purposes of sub-regulation (1)—
(a) the reference in the definition of A to the amount of salary paid or payable to a person in respect of work or duties performed by the person during a pay period in relation to the person is a reference to—
(i) in a case where sub-paragraph (ii) does not apply—the amount of salary (within the meaning of section 5 of the Act) so paid or payable to the person; or
(ii) in a case where, by virtue of regulation 8c, an amount (in this sub-paragraph 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 work or duties performed by the person during 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 referred to in sub-paragraph (i) and the relevant amount; 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.
Annual rate of salary on last day of service of certain persons who have ceased to be eligible employees
“8e. (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 sub-paragraph (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 sub-regulation (4),
then, the annual rate of salary of the person on his or her last day of service shall be 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 work or duties performed by the person during 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 sub-paragraph (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 amount per annum 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) 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; or
(k) if 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 sub-paragraph (i) or in respect of the period of leave of absence referred to in sub-paragraph (ii) had been payable to the person at the last-mentioned rate;
E is—
(m) if paragraph (n) 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; or
(n) if 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 sub-paragraph (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 sub-paragraph (ii) had been payable to the person at the last-mentioned rate;
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 sub-paragraph (b) (ii) in relation to the person.
“(4) Where—
(a) sub-paragraphs (3) (b) (i) and (ii) apply in relation to a person to whom this regulation applies; and
(b) a person authorized by the Commissioner for the purposes of this regulation 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 sub-paragraph (3) (b) (ii) in relation to the person commenced,
the authorized person shall give to the Commissioner a certificate to that effect specifying the day on which the first-mentioned period commenced.
“(5) For the purposes of sub-regulation (3)—
(a) the reference in the definition of A to the amount of salary paid or payable to a person in respect of work or duties performed by the person during a pay period in relation to the person is a reference to—
(i) in a case where sub-paragraph (ii) does not apply—the amount of salary (within the meaning of section 5 of the Act) so paid or payable to the person;
(ii) in a case where, by virtue of regulation 8c, an amount (in this sub-paragraph 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 work or duties performed by the person during 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 referred to in sub-paragraph (i) and the relevant amount; and
(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.”.
5. Regulation 9 of the Principal Regulations is repealed and the following regulation substituted:
Interpretation
“9. (1) In this Part, a reference to the basic salary of an eligible employee on a particular day is a reference to—
(a) in the case of an eligible employee—
(i) whose salary or wages includes, or include, an allowance or the value of an allowance; or
(ii) to whom is payable an allowance, or the value of an allowance, that is, in relation to the eligible employee, an allowance of a kind that, under these Regulations, is to be treated as salary for the purposes of the Act,
so much of the salary (within the meaning of section 5 of the Act) of the eligible employee on that day as would be payable to him or her if the eligible employee were not entitled to receive on that day any amount in respect of—
(iii) an allowance, or the value of an allowance, that is part of the salary or wages of the eligible employee; or
(iv) an allowance, or the value of an allowance of a kind referred to in sub-paragraph (ii) in relation to the eligible employee,
together with, in a case where, by virtue of a provision of these Regulations, a specified part of the salary or wages of the eligible employee is not to be treated as salary for the purposes of the Act, any amount that, but for that provision, would be included in the salary (within the meaning of section 5 of the Act) of the eligible employee on that day; or
(b) in any other case—the salary (within the meaning of section 5 of the Act) of the eligible employee on that day.
“(2) For the purposes of this Part, an eligible employee, being a temporary employee, shall be taken to perform, or to have performed, prescribed work on a particular day if—
(a) on the particular day the eligible employee performs, or has performed, work other than—
(i) where sub-paragraph (ii) or (iii) does not apply in relation to the eligible employee—the work in respect of which the eligible employee was paid, or is entitled to receive, the salary by reference to which the fortnightly basic contribution payable by the eligible employee on the contribution day last preceding the particular day was calculated;
(ii) where the eligible employee was not required to make contributions on the contribution day last preceding the particular day—the work in respect of which the eligible employee was paid, or is entitled to receive, the salary by reference to which the fortnightly basic contribution that would have been payable by the eligible employee on that contribution day would have been calculated if the eligible employee had been required to make contributions on that contribution day; or
(iii) where the contribution day last preceding the particular day occurred before the first day of service of the eligible employee—the work that the eligible employee performed on his or her first day of service; and
(b) the basic salary of the eligible employee on the particular day exceeds the basic salary that would be payable to the eligible employee on that day if the eligible employee had continued to perform, and performed on that day, the work referred to in subparagraph (a) (i), (ii) or (iii) (as the case may be).”.
Circumstances where part of salary or wages of temporary employee not to be treated as salary
6.Regulation 10 of the Principal Regulations is amended—
(a) by omitting sub-regulation (1) and substituting the following sub-regulation:
“(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 sub-paragraphs 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 sub-regulation (3) in respect of the eligible employee.”; and
(b) by omitting from sub-regulation (2) paragraph (c) and all words following that paragraph and substituting the following:
“(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.”.
Final annual rate of salary of certain temporary employees
7. Regulation 11 of the Principal Regulations is amended by omitting from sub-regulation (1) “the basic salary of the eligible employee on the relevant day” and substituting “the salary (within the meaning of section 5 of the Act) that would be payable to the eligible employee on the relevant day if the eligible employee had continued to perform, and performed on that day, the work referred to in whichever of sub-paragraphs 9 (2) (a) (i), (ii) and (in) applies in relation to the eligible employee”.
NOTES
1. Notified in the Commonwealth of Australia Gazette on 5 December 1985.
2.Statutory Rules 1978 No. 282 as amended by 1981 No. 5; 1985 No. 204.
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