Complainant

Respondent

Anonymised Parties

General Operative

Public Body

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00017433-001

14/02/2018

The Complainant seeks restoration of a 25% milking allowance.

The Complainant commenced employment with the Respondent on 1st May 1984 as a milker and general farm operative. He received an allowance of 25% on his gross wage for milking, which he carried out on a full time basis. He was transferred in 2011 and although employed for milking duties, he carried out other general farm duties. It is contended that historically it was agreed that the 25% bonus would remain with him. In 2004 a “Sustaining Progress” action plan / benchmarking agreement outlined that :

“A 10% allowance will be introduced for all existing Farm Staff who are not in receipt of an allowance under existing arrangements…”

“farm staff currently on a higher allowance (e.g. research/milking/driving) will hold their existing allowance on a personal to holder basis”.

It is contended that the Complainant is one of the persons described as he held his bonus of 25% and therefore he is entitled to hold it on a personal to holder basis.

In 2011, when the Complainant was transferred it was indicated to him by the Farm Manager that he was only being paid 25% only when milking. He believed this to be incorrect but could not get agreement from management on this. However, it came to HR’s attention in 2010 that he was not receiving the correct allowance from the period of commencement of the agreement to then and that he had not received 10% of all wage and had only received 25% for milking hours. This was rectified and the Complainant received arrears for application of the 10% to all hours where he had not received the 25%. Although grateful for this issue being resolved, the Complainant still felt that this was incorrect and his union has tried to resolve the matter without success. The Complainant cited a Comparator who has been in receipt of the 25% and “hadn’t milked a cow since 2012”.           The Complainant contends that going forward, he should be in receipt of the 25% on a personal to holder basis, and that arrears of the 15% be paid to him.

The Complainant received a 25% milking bonus for time spent milking. This remained in place until a review of pay of general operatives under Parallel Benchmarking took place in 2004.   Following this review the Complainant received a 10% Milker Allowance in line with all other General Operatives and where acting up for holders of a higher allowance the Complainant receives an additional 15% allowance. The Complainant continues to receive these provisions on a personal to holder basis as he was employed prior to the Parallel Benchmarking Agreement being introduced.  The Agreement was implemented on 1 January 2004. However, in 2010 it came to the attention of HR that the10% had not been applied to the Complainant and this was rectified for the years 2004 to 2010.   He received 25% for the hours spent milking but had not received the 10% allowance for the remainder of the time.         It should be noted that the Complainant was transferred in 2011 and was advised of the change in his conditions in terms of location, his reduced working week and 10% milker allowance. He did not raise any query as to the 25% at this point.    

When the Complainant commenced employment he was operating as a full time milker and I accept that he was in receipt of 25% milking allowance on his pay at the early stages of his employment. The records of 2004 to 2010 produced by the Respondent show that the Complainant was not in receipt of 25% bonus for all hours worked during that period, only for those hours spent milking.   However, the Respondent then implemented the 10% milker allowance for the Complainant and while arrears of pay were paid, the Complainant was still dissatisfied that he was not on the 25% allowance for all basic hours. The Respondent maintains that the Complainant is not a designated permanent milker and therefore is not entitled to the 25% milking allowance. Recognising that the Complainant was only paid the 25% bonus for hours spent milking for many years, I cannot recommend that he receives the benefit of the clause regarding personal to holder in the Sustaining Progress Parallel Benchmarking Agreement as to do so would possibly give rise to repercussive claims.   However, I find that the Complainant was placed in a disadvantaged position when he was transferred in 2011, and at that stage, he should have had some compensation for loss of earnings.   For this reason, I recommend that the Respondent offer the Complainant the compensatory sum of €2,000 to draw a line under this dispute.