"Ordinary pay" , in relation to any worker, means remuneration for the
worker's normal weekly number of hours of work calculated at the
ordinary time rate of pay; and, where the worker is provided with board or
lodging by his or her employer, includes the cash value of that board or
lodging.
"Week" , in relation to any worker, means the worker's ordinary working week.
"Worker" means person employed, whether on salary or wages or piecework rates,
or as a member of a butty-gang, and the fact that a person is working under a
contract for labour only, or substantially for labour only, or as lessee of
any tools or other implements of production, or as an outworker, or is working
as a salesperson, canvasser, collector, commercial traveller, insurance agent,
or in any other capacity in which the person is paid wholly or partly by
commission, shall not in itself prevent such person being held to be a worker.
(2) For the purposes of the definition of the term
"ordinary pay" in subsection (1)--
(a) the term
"ordinary time rate of pay" in the case of a worker who is remunerated in
relation to an ordinary time rate of pay fixed by the terms of the worker's
employment means the time rate of pay so fixed for the worker's work under the
terms of the worker's employment, including shift allowances relating to
ordinary time and weekend penalties relating to ordinary time the worker would
have worked on days other than public holidays if the worker had not been on
annual holidays, but does not include any other amount payable to the worker
in respect of shift work, overtime or penalty rates, and where two or more
time rates of pay are so fixed means the higher or highest of those rates,
(a1) where a worker is remunerated otherwise than in relation to an
ordinary time rate of pay so fixed, or partly in relation to an
ordinary time rate of pay so fixed and partly in relation to any other manner,
or where no ordinary time rate of pay is so fixed for a worker's work under
the terms of the worker's employment, the worker's ordinary pay shall be
deemed to be the average weekly wage earned by the worker during the period
actually worked by the worker during the period of twelve months immediately
preceding the annual holiday or, as the case may be, during the period of
employment in respect of which a right to payment under section 4 (3) or under
section 4A accrues.
For the purposes of this paragraph the average weekly wage earned by a worker
shall be the average of the amounts received by the worker each week under the
terms of the worker's employment including shift allowances relating to
ordinary time and weekend penalties relating to ordinary time the worker would
have worked on days other than public holidays if the worker had not been on
annual holiday, and excluding any other amount payable to the worker in
respect of shift work, overtime or penalty rates,
(a2) where during the
period of twelve months immediately preceding the annual holiday or, as the
case may be, during the period of employment in respect of which a right to
payment under section 4 (3) or under section 4A accrues the worker has
received under the terms of the worker's employment, any amount under any
bonus, incentive or other similar scheme (other than any amount taken into
consideration in assessing an average weekly wage in terms of paragraph (a1))
the worker's ordinary pay shall be increased by a further sum namely the sum
which the worker would have received each week in respect of such bonus,
incentive or other similar scheme had such amount been paid by equal weekly
payments throughout that period,
(b) where no normal weekly number of hours
is fixed for a worker under the terms of the worker's employment, the normal
weekly number of hours of work shall be deemed to be the average weekly number
of hours worked by the worker during the applicable period referred to in
paragraph (a1),
(c) the cash value of any board or lodging provided for a
worker shall be deemed to be its cash value as fixed by or under the terms of
the worker's employment or, if it is not so fixed, shall be computed at the
rate of three dollars, or such greater sum as may be prescribed in lieu
thereof, a week for board and one dollar, or such greater sum as may be
prescribed in lieu thereof, a week for lodging.
(3) Notwithstanding anything
contained in subsection (2) (a1) or (a2), for the purposes of the definition
of the term
"ordinary pay" in subsection (1), where a worker is remunerated partly in
relation to an ordinary time rate of pay fixed by the terms of the worker's
employment and partly in relation to a bonus, incentive or other similar
scheme, the worker's ordinary pay shall be deemed to be the sum of--
(a) the
worker's weekly remuneration at the ordinary time rate of pay so fixed at the
commencement of the annual holiday or, as the case may be, at the end of the
period of employment in respect of which a right to payment under section 4
(3) or section 4A, accrues,
(b) the average of the amounts received by the
worker each week in respect of the bonus, incentive or other similar scheme--
(i) during the period actually worked by the worker during the twelve months
immediately preceding the commencement of the worker's annual holiday, or
(ii) during the period of employment in respect of which a right to payment
under section 4 (3) or section 4A accrues,
as the case may be, and
(c) shift
allowances relating to ordinary time and weekend penalties relating to
ordinary time the worker would have worked on days other than public holidays
if the worker had not been on annual holiday,
but excluding any other amounts
paid to the worker in respect of shift work, overtime or penalty rates.
(4)
For the purposes of subsections (2) (a1), (2) (b) and (3), in computing the
period actually worked by a worker no regard shall be had to any period during
which, on account of illness or injury, the worker was temporarily assigned to
duties or work entitling the worker to payment of wages lower than the wages
the worker would have received had the worker not been assigned to those
duties or that work on that account, unless the worker was assigned to those
duties or that work during the whole of the period actually worked by the
worker.
(5) Notwithstanding the provisions of subsection (2) (a), (2) (a1) or
(3), where by any award or agreement a worker is entitled to shift allowances
relating to ordinary time or weekend penalties relating to ordinary time the
worker would have worked on days other than public holidays if the worker had
not been on annual holiday or to an annual holiday loading, whichever is the
greater, the ordinary time rate of pay or the ordinary pay, as the case may
be, of that worker shall not, in respect of any annual holiday to which the
worker is entitled under this Act, include those allowances and penalties.
(6) Despite anything to the contrary in this section, the ordinary pay of a
worker is not to include or be increased by the amounts paid under any bonus,
incentive or other similar scheme if the annual amount of the worker's
ordinary pay (excluding any amounts so paid) exceeds the amount prescribed by
the regulations for the purposes of this subsection.