Pharmacists Defence Association v Boots Management Services Limited; Central Arbitration Committee TUR1/823/2012;  IRLR 278
Trade Unions - recognition29 January 2013
Central Arbitration Committee
An application for recognition under the compulsory recognition procedure in the Trade Union and Labour Relations (Consolidation) Act 1992 cannot proceed if a union is already recognized for collective bargaining purposes. Collective bargaining is defined widely to include any negotiation rights, however limited. In this case, the High Court confirms this and holds that the CAC was wrong to limit the definition of recognition to negotiating rights over pay, hours and holiday - even though to do so might appear more consistent with Article 11 of the European Convention on Human Rights (freedom of association).
PDAU, an independent trade union, sought recognition under the compulsory recognition procedure. Boots resisted the application, relying on an agreement with a non-independent union, BPA. BPA had existed for many years but until the agreement only had consultation rights, not negotiating rights. That agreement was only reached after PDAU had started to seek recognition. It gave BPA limited negotiating rights over facilities for its officials and the machinery for consultation.
Paragraph 35(1) of Schedule 1A to the 1992 Act provides that an application for recognition is not admissible if there is already in force a collective agreement recognising a union as entitled to conduct collecting bargaining. Collective bargaining is defined by paragraph 3(1) of schedule 1A as negotiations over pay hours and holidays, but that definition is stated not to apply for the purposes of paragraph 35 (paragraph 3(6)); the only other definition in the 1992 Act, s 178, defines collective bargaining more widely to include negotiations over facilities and consultation machinery. So, Boots argued, it did not matter that the negotiating rights of the BPA were so limited – the agreement was still a recognition agreement which blocked the PDA’s application.
The CAC accepted that the agreement provided for collective bargaining in the wide sense. However, it referred to Article 11 of the European Convention on Human Rights (freendom of association). ILO convention 154 and case law under the Human Rights Convention and concluded that the limited negotiation rights under the BPA agreement should not be allowed to block the PDA’s application. Referring to Article 11, it therefore held that collective bargaining for the purposes of paragraph 35 meant bargaining over pay, hours and holidays. The BPA was not recognized for those purposes and the agreement did not block PDA’s application.
The High Court held that the CAC should have applied paragraph 35 as it stood and should not have decided whether or not it was consistent with the Human Rights Convention. It should have given the PDAU an opportunity to apply for a declaration that the paragraph 35 definition of collective bargaining was incompatible with Article of the Convention.
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