Unions cannot request recognition under the Trade Union and Labour Relations (Consolidation) Act (TULRCA) 1992 if there is another collective agreement in force allowing a union to collectively bargain on behalf of workers in the relevant bargaining unit. In Pharmacists’ Defence Association Union (PDAU) v Boots Management Services Ltd, the Central Arbitration Committee (CAC) held that any existing collective agreement must include the right of unions to negotiate on the issues of pay, hours and holidays.
Basic facts
Following a request for recognition for collective bargaining purposes in respect of about 5,500 pharmacists employed by Boots in January 2012, the company agreed to meet the PDAU “to fully understand its request” and see whether any agreement could be reached.
Notwithstanding this, on 1 March 2012, Boots entered into a written recognition agreement with the Boots Pharmacists Association (BPA) with which it had a long-standing relationship for certain collective bargaining purposes. The director of pharmacy subsequently wrote to the PDAU on 22 March rejecting its request on the basis that the company already had a “formal, productive and effective” way of working with a listed union, namely the BPA.
On 2 October 2012 the PDAU submitted an application for recognition to the CAC, stating that the BPA was not independent and that it only had a voluntary consultation arrangement with Boots which did not constitute a collective agreement as it did not provide for bargaining on pay, terms and conditions or holiday. It argued that the collective agreement between Boots and the BPA did not therefore give effect to the requirements of article 11 (freedom of assembly and association) of the European Convention on Human Rights.
Boots said the PDAU was barred from making the application under paragraph 35 of Schedule A1 of TULRCA as it already had a collective agreement in place with the BPA for the relevant bargaining unit.
Relevant law
Section 35 of Schedule A1 of TULCRA states that: “An application under paragraph 11 or 12 is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit”.
CAC decision
The CAC agreed with the union. It held that, following the decision of the Grand Chamber of the European Court of Human Rights in Demir and another v Turkey, the right to bargain collectively with an employer had become one of the “essential elements” of article 11 and had to include the right to collectively bargain in relation to pay, hours and holiday.
Section 35 of Schedule A1 TULRCA had to be construed to give proper effect to article 11 insofar as it could, and it was not impermissible to amend or add words to the domestic legislation to achieve that aim.
The CAC decided that, as Section 35 was not compliant with article 11 as drafted, it would iron out the “wrinkle” by adding the words “in respect of pay, hours and holidays” as a qualification to the meaning of “collective bargaining”.
This ensured a collective agreement like the one Boots had with the BPA, which did not provide for collective bargaining on pay, terms and conditions and holidays, could not be used to bar the PDAU from proceeding with a statutory recognition request.