When calculating leave entitlements and payments, you'll often need to determine whether a particular day is an "otherwise working day". This article explains what this term means and how to work it out.
What is an otherwise working day?
An otherwise working day is a day that the employee would have worked, but for being:
a public holiday
a day the employee was sick or bereaved
taken as an alternative holiday
taken as an annual holiday
Put simply, it's asking: "Would this employee normally have been at work on this day if they hadn't been on leave or it wasn't a public holiday?"
Why does it matter?
Correctly identifying otherwise working days affects:
Public holiday entitlements: employees are only entitled to a paid public holiday (and an alternative holiday if they work) if the public holiday falls on an otherwise working day.
Sick and bereavement leave: sick and bereavement leave should only be used when an employee is away on what would have been a working day.
When the answer is obvious
For many employees, determining an otherwise working day is straightforward. If someone works Monday to Friday every week, then any weekday is an otherwise working day and weekends are not.
Similarly, if someone always works Tuesday, Thursday and Saturday, those three days are their otherwise working days.
When it's less clear
The assessment becomes more complex when employees have:
variable or irregular work patterns
rotating rosters
casual or on-call arrangements
work patterns that vary seasonally
In these situations, working out whether a day is an otherwise working day requires a practical assessment using the factors set out in official guidance from Employment NZ/MBIE.
Factors to consider
When it's not immediately clear, you and the employee should consider all of the following factors together:
The employment agreement – What days or hours are specified in the agreement? Does it set out regular working days or allow for flexibility?
The employee's work patterns – What days has the employee actually been working? Look at their recent work history to establish any patterns.
Whether work is available only when needed – Does the employee only work when there's work available? This is common in industries like agriculture, hospitality, and construction where work may be weather-dependent or seasonal.
What the employer reasonably believes – Based on rosters, schedules, or operational needs, did you expect the employee to work that day?
What the employee reasonably believes – Did the employee expect to be working that day based on their usual pattern or any discussions with you?
Any other relevant factors – This might include rosters, schedules, calendars, recent communications about upcoming work, or the employee's availability.
You must consider all of these factors together, not just one in isolation. No single factor determines the outcome on its own.
No minimum work history required
There's no specific time limit or defined number of weeks that an employee needs to have worked a particular day before it can be considered an otherwise working day.
A new employee may be eligible for public holiday entitlements from their very first week if the public holiday falls on a day they would otherwise have worked.
For example, if you hire someone to work Mondays to Fridays and a public holiday falls on a Wednesday in their first week, that Wednesday is an otherwise working day for them. What matters is whether they would have worked that day – not how long they've been in the role.
How to reach agreement
Working out whether a day is an otherwise working day is intended to be a practical exercise. When it's not immediately obvious:
Have a good faith discussion with the employee
Consider all the relevant factors together
Try to reach agreement on whether the day would have been a working day
If you can't reach agreement, you should consider seeking advice.
Practical examples
Example 1: Regular part-time employee Sarah works every Monday, Wednesday, and Friday. Waitangi Day falls on a Thursday. Thursday is not an otherwise working day for Sarah, so she has no public holiday entitlement for that day.
Example 2: Rotating roster Tom works a rotating roster where he works different days each week. Looking at the roster pattern, he would have been scheduled to work on the upcoming Tuesday if it had not been a public holiday. This is an otherwise working day because the roster shows he would have worked.
Example 3: Casual worker Emma works irregular shifts based on when her employer needs her. ANZAC Day falls on a Monday. Looking at her work pattern over recent weeks, she has worked most Mondays, and her employer had planned to offer her a shift that day. After discussing the factors, both agree this would have been an otherwise working day.
Example 4: New employee Jake started work on Monday and is contracted to work Monday to Friday. A public holiday falls on the Friday of his first week. Even though he's only been employed for four days, Friday is an otherwise working day because his employment agreement shows he would have worked that day.