FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TEAGASC - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr Hall |
1. Appeal of Adjudication Officer's Recommendation No: ADJ-00013208.
BACKGROUND:
2. This case concerns a claim for retrospective application of a milking allowance.
This matter was referred to an Adjudication Officer for investigation and recommendation. On 14 December 2018 issued the following recommendation:-
- 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.
The Union on behalf of the Claimant appealed the Adjudication Officer's Recommendation to the Labour Court on 20 December 2018 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
DECISION:
This is an appeal of an Adjudication Officer’s Recommendation by the Union on behalf of a worker for payment of a 25% milking allowance. The Adjudication Officer did not recommend in favour of his claim; however, she did find that he was placed in a disadvantageous position when he transferred in 2011 and should have been compensated for a loss of earnings at that time. Therefore, she recommended that he should be paid €2,000 compensation in full and final settlement of this claim.
The Claimant commenced employment on 16thFebruary 1984 as a full time Farm Worker. He was based at Kilmaley Research Farm until 5thMay 2011 after which he was transferred to Solohead Research Farm. He was paid a 25% milking bonus whenever he was assigned to research milking duties. Farm staff permanently assigned to research milking, and those temporarily assigned, received the 25% milking allowance in recognition of the higher demands of the milking role, e.g. record keeping. This system remained in place until the Parallel Benchmarking review, under Sustaining Progress, took place in 2004. The resulting agreement provided the following; -
- “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.
Existing farm staff ‘acting up’ for holders of a higher allowance will continue to attract the higher allowance. This will cease on the retirement/resignation etc of the farm staff member holding the higher allowance on a personal to holder basis.
Allowances will not be paid to new staff.”
In May 2011 when the Claimant transferred to Solohead he continued to receive the 10% allowance in accordance with the Parallel Benchmarking Agreement and whenever he was required to provide cover for a permanent Milker, or for seasonal research milking, he received an additional 15% research milking allowance.
Management rejected the Union’s claim stating that the Claimant was employed to carry out general farm operative duties, and covered research milking duties during busy periods, such as seasonal peaks or when covering for colleagues who were permanent research Milkers. When this occurred, he was paid a 25% bonus for carrying out specific research milking duties.
On 29thSeptember 2010, when it was discovered that he was being paid the 25% bonus for the occasions he was milking, but not the 10% allowance when he was not on milking duties, management rectified the situation and paid him €8,907.77 in arrears going back to January 2004. Since then he has been paid the 10% allowance and receives an additional payment of 15% when carrying out milking duties.
In May 2017, the Union formally raised a concern about changes to the Claimant’s terms and conditions of employment when he transferred to Solohead in 2011. It claimed that the Claimant was employed as a permanent Milker prior to 2004 and was paid the 25% allowance. Accordingly, it submitted that he should be entitled to retain the 25% allowance on a personal to holder basis, in accordance with the Parallel Benchmarking Agreement.
Having considered the submissions of both parties the Court notes that the Claimant was not designated as a Milker while he was in Kilmaley from 1984 until 2011. He told the Court that he was the only Milker on that farm, milking 70 cows. He said that he was not aware that he could have been entitled to the 25% milking allowance had he been designated as a permanent Milker and this point did not come to his attention until 2017, it was at that point that it was raised with management.
The Court was not provided with a valid reason why the Claimant was not so appointed, despite the assertion that he appeared to be carrying out that role. The Court fails to understand the difference between the duties carried out by the Claimant while in Kilmaley and that of a permanent designated Milker. The Court is emboldened in this view by the fact that he was the only Milker in Kilmaley from 1984 until 2011 when he was transferred. Had he been so designated he would have been in receipt of the 25% allowance on a personal to holder basis, in accordance with the Parallel Benchmarking Agreement of 2004.
Therefore, the Court recommends that the Claimant should be paid the 25% Milking allowance as applies to a designated permanent Milker with effect from May 2017 and retain it on a personal to hold basis.
Accordingly, the Court varies the Adjudication Officer’s Recommendation and upholds the Claimant’s appeal in part.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
29 March 2019______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Neville, Court Secretary.