R (on the application of Boots Management Services Ltd) v The Central Arbitration Committee The Pharmacists' Defence Association Union (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keith |
| Judgment Date | 22 January 2014 |
| Neutral Citation | [2014] EWHC 65 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 January 2014 |
| Docket Number | Case No: CO/2178/2013 |
[2014] EWHC 65 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Keith
Case No: CO/2178/2013
and
Mr David Reade QC (instructed by Messrs Baker and McKenzie LLP) for the claimant
Mr John Hendy QC (instructed by Miss Orla Shiels) for the interested party
The defendant did not appear and was not represented
Introduction
This case is the latest instalment in a long-running saga in which a trade union, the Pharmacists' Defence Association Union ("the PDAU"), is seeking to be recognised by Boots Management Services Ltd ("Boots") for the purposes of collective bargaining on behalf of the pharmacists employed by Boots, whether they are members of the PDAU or not. It arises in the context of a claim by Boots for judicial review of the decision of the Central Arbitration Committee ("the CAC") that the PDAU's application for statutory recognition of it by Boots for the purposes of collective bargaining was not rendered inadmissible by one of the provisions of the relevant statutory scheme. If Boots' claim for judicial review succeeds, the CAC will not be able to consider the application at all. If the claim fails, the CAC will continue to consider whether the application is admissible.
The facts
Boots is the company within Alliance Boots GmbH which employs the staff who work in its well-known retail chain of chemists throughout the UK. For many years, it has had a relationship (to use a neutral term) with the Boots Pharmacists' Association ("the BPA"). The BPA was listed as a trade union in 1979, and according to its constitution which was most recently revised in 2005, one of its objectives was "[t]o act as an officially recognised medium for representing to the management of Boots The Chemist all matters affecting the pharmacists of Boots The Chemist". The CAC was to find that "[s]ome limited negotiation had taken place [over the years] concerning the machinery for consultation with the BPA and facilities for its officials". Those negotiations resulted (a) in the BPA's chief executive officer being provided with a lap-top computer and an e-mail address, (b) in funding for the publication through which the BPA communicated with the pharmacists employed by Boots and others, (c) in the BPA being invited to have stands at the Boots Divisional Pharmacy Conferences and to make presentations at them, (d) in enabling members' subscriptions to the BPA to be collected via the payroll, and (e) in the establishment of channels through which the BPA's chief executive officer would deal with members of Boots' management and of designated meeting places. These were hardly matters of any substance, and the CAC was also to find that Boots "was absolutely clear that it had never recognised the BPA for the purposes of collective bargaining in relation to terms and conditions of employment, nor issues concerning pay, hours and holiday. It had not, did not currently do so and had no intention of doing so in the future. Its interaction with the BPA in this regard was strictly limited to consultation."
The Certification Officer is the officer responsible under the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act") for maintaining a list of trade unions and employers' associations. The BPA had never applied to the Certification Officer for a certificate of independence. The PDAU, on the other hand, had been certified by the Certification Officer as an independent trade union in November 2010. It was to claim that it then had approaching 18,000 members, including many of the pharmacists employed by Boots. In March 2011, its general secretary wrote to Boots' human resources director informing him that the PDAU had initially been set up to represent its members in grievance and disciplinary meetings, but that its members now wanted the PDAU "to become more involved in dealing with their terms and conditions of employment". He added that those of the PDAU's members who were pharmacists with Boots were saying that they wanted the PDAU "to be recognised for negotiation and consultation purposes". He sought a meeting with Boots to discuss the matter. Boots responded to this request by saying that it was amenable to such a meeting, since its human resources director had not met the PDAU's general secretary before, but it said that Boots saw its pharmacists "as an integral part" of the "stores team" rather than "as a separate interest group", and it made the point that it worked closely with the BPA on matters which related specifically to its pharmacists.
The PDAU's wish to have a voluntary agreement was rejected by Boots, and after the PDAU had gathered strength in numbers, it formally applied to Boots in January 2012 under the statutory procedure provided for by Schedule A1 to the 1992 Act to be recognised for the purposes of collective bargaining. That application was refused, and the PDAU submitted its application for recognition to the CAC in February 2012. Boots informed the PDAU that it was prepared to meet the PDAU to discuss its request for recognition, and to explore whether any agreement could be reached. On that basis, the PDAU agreed to withdraw its application to the CAC while those talks took place. It was after those talks had broken down that the PDAU submitted a fresh application for recognition to the CAC. That was in October 2012.
The CAC was to find that Boots "had no intention of recognising" the PDAU, and that it had "deliberately misled" the PDAU "in order to buy time" to negotiate an agreement with the BPA. That agreement was signed on 1 March 2012. The following day members of Boots' management met officials of the PDAU. No mention was made of the agreement which it had reached with the BPA the previous day. Instead, Boots said that it had found the meeting useful, and that it would proceed to consider the PDAU's application. The PDAU welcomed Boots' "apparent earnestness", but on 22 March 2012, Boots informed the PDAU that it was rejecting its application for recognition, stating that it had recognised the BPA for "certain collective bargaining purposes", although it offered to meet the PDAU on a regular basis to discuss the PDAU's "ideas, views and concerns". The CAC was to find that this was the first time that Boots had mentioned to the PDAU the agreement which it had reached with the BPA.
The agreement between Boots and the BPA described itself as a "partnership agreement". This is what the CAC said about it:
"It is common ground that the [agreement between Boots and the BPA] provides for consultation without any bargaining or negotiation rights in relation to pay, hours and holidays, nor working conditions, nor terms and conditions of employment. It is described as 'consultative dialogue' and the BPA is described as a 'line of communication' with 'input' into various matters. The [agreement] records, for example, how the input of the BPA on major company initiatives will be considered: 'Where practicable, our [Boots'] aim is that any proposals submitted by the BPA will be considered by management prior to any final decisions being made by the business. The BPA will be advised of the reasons for the response to its input.'
In two respects only the BPA is recognised as having collective bargaining rights:
'Under this agreement the BPA is recognised as having collective bargaining rights for the purposes of negotiation relating to facilities for its officials and the machinery for consultation in respect of the matters upon which [Boots] will consult with the BPA (which are those set out in this agreement). This agreement does not provide for collective bargaining rights on any other matters.'"
The CAC commented that "the borderline between consultation and negotiation can be problematic: this was not such a case". Boots, it said, had made it "absolutely clear" that apart from the two specific topics referred to in the agreement, it did not negotiate with the BPA.
The CAC found that the agreement which Boots reached with the BPA — which on the face of it did little more than put the nature of their relationship over the years on a more formal basis — was in truth a device which was designed to defeat any formal application for recognition which the PDAU might resubmit. It said that "the reason why [Boots] formalised its arrangement with the BPA … was in order to block the [PDAU's] request for recognition under the statutory procedure without conferring those rights on any other union (whether independent or not)." In that way, Boots sought to prevent their pharmacists from having the benefit of collective bargaining over their pay, hours and holidays, whether conducted by the PDAU, the BPA or any other union. In order to understand how, it is necessary to look at the legislative scheme, though in the interests of completeness I should add that following the CAC's decision that the PDAU's application for statutory recognition was not inadmissible, the BPA's application for a certificate of independence (which had been sought shortly before the hearing before the CAC) was refused — not on the basis that the BPA actually was under the domination or control of Boots, but because it was liable to interference by Boots tending towards being dominated or controlled by it.
The legislative scheme
Schedule A1 to the 1992 Act ("the Schedule") provides a mechanism in...
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