Labour & European Law Review Weekly Issue 361 19 March 2014
Unions cannot request recognition under the Trade Union and Labour Relations (Consolidation) Act (TULRCA) 1992 if there is a collective agreement in force allowing another union to collectively bargain on behalf of the relevant workers. In R (on the application of Boots Management Services Ltd) v the Central Arbitration Committee (CAC) the High Court held that, under paragraph 35 of the Act, a collective agreement did not have to include the right to collectively bargain in relation to pay, hours and holiday.
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. Shortly afterwards, however, the company entered into a written recognition agreement with the Boots Pharmacists Association (BPA) and rejected the PDAU’s request on the basis that it already had an agreement with 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. This did not give effect to the requirements of article 11 (freedom of assembly and association) of the European Convention on Human Rights.
Boots said the PDAU’s application was barred under paragraph 35 of Schedule A1 of TULRCA as there was another collective agreement in force recognising another union for collective bargaining purposes.
The CAC agreed with the union. It held that, following the decision of the European Court of Human Rights in Demir and another v Turkey, the right to bargain collectively with an employer had to include the right to collectively bargain in relation to pay, hours and holiday.
Paragraph 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. As section 35 was not compliant with article 11 as drafted, the CAC decided to iron out the “wrinkle” by adding the words “in respect of pay, hours and holidays” to the meaning of “collective bargaining”, which it was allowed to do under section 3(1) of the Human Rights Act.
Boots applied for a judicial review of this decision in the High Court.
High Court decision
The High Court agreed with the PDAU that it would make a mockery of the term “collective bargaining” if it did not include (at the very least) "negotiations over terms and conditions of employment". It was inconceivable that the Court in Demir would have considered the topics covered in the agreement with the BPA to be the sort of collective bargaining envisaged by article 11.
However, although the CAC could add words to paragraph 35 so that it was “compatible with the underlying thrust of the legislation”, it could not change the substance of a provision completely. Yet that was exactly what it had done when it added the words “in respect of pay, hours and holiday”. However powerful the obligation in section 3(1), it did not allow the courts to change the substance of a provision completely from one where parliament said that x is to happen into one saying that x is not to happen.
The agreement with the BPA was therefore a collective agreement under paragraph 35, even though it did not provide for collective bargaining in respect of pay, hours or holidays.