Labour & European Law Review Weekly Issue 513 29 March 2017
The law says that unions cannot request statutory recognition if there is an agreement in force allowing another union to collectively bargain on behalf of the relevant workers. In Pharmacists’ Defence Association Union (PDAU) v Boots Management Services Ltd the Court of Appeal held that if the relevant workers want to be represented by the non-recognised union, the onus is on them to bring the bargaining arrangements with the recognised union to an end.
Following a request for recognition for collective bargaining purposes, Boots agreed to meet the PDAU. Shortly afterwards, however, the company entered into a written recognition agreement with a non-independent union, Boots Pharmacists Association, which was limited to negotiation relating to facilities for its officials and the machinery for consultation. Boots then rejected the PDAU’s request on the basis that there was already an agreement in place.
The PDAU applied to the Central Arbitration Committee (CAC) for recognition. Boots said the PDAU’s application was barred under paragraph 35 of Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act (TULRCA) 1992 as there was already a collective agreement in force recognising another union for collective bargaining purposes.
The PDAU took the view that the law did not permit an application for statutory dereognition of the BDA because the agreement with the BDA did not provide for bargaining on key issues such as pay, terms and conditions or holiday. Instead, the PDAU argued that the statutory recognition procedure did not give effect to the requirements of article 11 (freedom of assembly and association) of the European Convention on Human Rights.
Decisions of the CAC and the High Court
Following the decision of the European Court of Human Rights in Demir and anor v Turkey, the CAC held that not permitting the PDAU to apply for statutory recognition would be a breach of Article 11. In order to make paragraph 35 compliant with article 11, the CAC added additional wording with the effect that the agreement with the BDA no longer operated as a bar on the PDAU’s application because the agreement with the BDA did not cover pay, hours or holidays.
Boots applied for a judicial review of this decision in the High Court. Although the court agreed with the PDAU that the inadmissibility of its application was a breach of article 11, it held that the CAC could not change the substance of a provision to make it compatible with article 11. The agreement with the BDA was therefore a collective agreement, which was effective to bar the PDAU’s application under paragraph 35, even though it did not provide for collective bargaining in respect of pay, hours or holidays.
Decision of Court of Appeal
The Court of Appeal has now held that article 11 cannot be used “as a tool to challenge this or that arguably sub-optimal element in a scheme provided that a fair balance has been struck”.
Instead the essential question was whether there was a reasonably practicable route whereby the recognition of the PDAU could be achieved if the majority of the pharmacists wanted it. The answer to that question could be found in paragraph 137 of Schedule A1 of TULRCA which allows any worker who falls within the bargaining unit the right to apply to the CAC to have the bargaining arrangements ended. As such, if the pharmacists want to be represented by the PDAU, the onus was on them to apply to the CAC to bring the bargaining arrangements with the staff association to an end. The Court of Appeal rejected the PDAU’s argument that the law did not permit an application for statutory dereognition in these circumstances.
The Court of Appeal said that it would be plainly contrary to the policy of Schedule A1 if workers were not able to rely on the statutory derecognition procedures to escape from a situation where the recognition of a non-independent trade union prevented an independent trade union, with majority support, from obtaining recognition.
As the Court of Appeal noted, this is likely to be only a short-term victory for Boots, since a route has been identified under which the PDAU can seek to take advantage of the statutory recognition procedure.
The case makes clear that attempts by employers to prevent an independent union from being recognised by signing a ‘sweetheart’ agreement with a non-independent union can be challenged by means of an application for statutory derecognition, even if the employer has carefully drafted the agreement to try and avoid the statutory derecognition procedure.