It is important to be able to work out whether a day is an otherwise working day for an employee because eg:
- An employee is entitled to a paid day off work on a public holiday or alternative holiday, and may take sick leave or bereavement leave, only on days that are otherwise working days for them
- If an employee works on a public holiday and the day is an otherwise working day for them, they are entitled to an alternative holiday (unless they are employed to work only on public holidays)
- Annual holidays can only be taken on days that would be otherwise working days.
An otherwise working day is a day that but for the day being eg a public holiday, or the employee being sick, they would have been working. In many cases it’s easy to work out whether or not an employee would otherwise have worked on the day in question because the working pattern or roster is constant and the employer and employee can easily agree about whether the employee would otherwise have worked that day.
If it is unclear whether a day is an otherwise working day for an employee
If it’s unclear whether the day is an otherwise working day, the things that the employee and employer must consider in trying to reach agreement include:
- what the employment agreement says
- the employee's usual work patterns
- any other relevant factors such as:
- if the employee works for the employer only when work is available
- the employer's rosters or other similar systems
- the reasonable expectations of the employer and employee as to whether the employee would have worked on that day
- if the employee would normally have worked if it wasn’t a holiday (public or alternative) or if the employee was not on leave (sick or bereavement)
The employer and employee must consider all of these factors when trying to reach agreement, eg the employer can’t just rely on one and then conclude that the day is not an otherwise working day.
Working out whether the day is an otherwise working day is a practical task, and each situation needs to be considered based on the employee’s specific situation and work pattern.
If the day falls during a closedown period, the above factors need to be taken into account as if the closedown period weren’t in effect.
An employer can’t take an employee off the roster on a public holiday when it’s a day that they would otherwise have worked on, in order to avoid giving the employee public holiday entitlements. Not recognising an employee’s holiday entitlements is against the law.
Kiri alternates her shifts with Ross. Kiri’s roster requires three 10-hour days on Monday to Wednesday one week (Week 1) and the same hours on Thursday to Saturday the following week (Week 2). If Week 1 coincides with the week in which Good Friday falls, Kiri will not get paid for Good Friday or Easter Monday (that will fall in Week 2) because she would not have been scheduled to work on that Friday or Monday (they are not otherwise working days for her).
Ross will be paid for both Good Friday and Easter Monday as the roster pattern would have scheduled him to work these days if they weren’t public holidays (these are otherwise working days for him).
Otherwise working day calculator
When an employee does not have a clear work pattern or there’s a lot of variation in work times, it may be harder to decide if a day is an otherwise working day. You can use the Otherwise working day calculator to work it out. It will take about 15 minutes to work through all the steps of the Otherwise working day calculator.
If you’re still not sure you can contact us.