Pharmacists Defence Association Union v Boots Management Services Ltd – Read judgment
The consequences of the change of approach of the European Court of Human Rights in the Article 11 case of Demir has definitely washed up on the shores of the UK
In a recent decision of the Central Arbitration Committee presided over by Mary Stacey, it was decided that it was necessary to amend the wording of the Trade Union and Labour Relations (Consolidation) Act 1992 (Sched 1A para 35) to make it compliant with Article 11 of the ECHR and the decision of the Strasbourg Court in Demir and Baykara v Turkey.
The decision of the CAC is a report from the front line of the battle between independent unions and employers about granting the former recognition.
The independent union in question was the Pharmacists Defence Association Union (PDAU). A previous application by the union had led to talks at the initiative of Boots. However, the Judgment reveals this was just a ruse by Boots to allow them to grant formal recognition to their own sweetheart union, Boots Pharmacists Association. Conventionally this would have stymied the application by PDAU. However, this was a collective agreement lite. It provided for consultation but no bargaining or negotiating rights in relation to pay, hours, holidays, working conditions and terms and conditions of employment. It granted a right to bargain collectively over facilities for Trade Union Officials and consultation machinery only.
The relevant legislative provision provided that an application to the CAC, “is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is recognized a entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit.”
In Demir and Baykara v Turkey  Application no. 34503/97 the Grand Chamber of the ECtHR, in a departure from previous case law, determined that, “the right to bargain collectively with the employer has, in principle, become one of the essential elements of the “right to form and to join trade unions for the protection of [one's] interests” set forth in Article 11 of the Convention [Para 154]. “
The CAC Panel concluded that the prohibition on an independent union from seeking recognition under the statutory procedure, where no other union (whether independent or otherwise) has collective bargaining rights for at least pay, hours and holidays, was an infringement of Article 11. On that basis they deployed Section 2 of the Human Rights Act 1998 and Ghaidan v Godin – Mendoza  2 AC 557 and determined that the Trade Union and Labour Relations (Consolidation) Act 1992 (Sched 1A para 35) needed to read as follows so as to comply with the Convention:
35. – (1) 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 in respect of pay, hours and holiday on behalf of any workers falling within the relevant bargaining unit.
The immediate consequence of this Judgment is that employers seeking to block the recognition of independent trade unions in the workplace will have to be more sophisticated in their use of “patsy” in-house trade unions as a defensive strategy.
Of more lasting significance is that this is further evidence of the renewed potency of Article 11 since Demir.
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