The Pharmacists' Defence Association Union v Boots Management Services Ltd (First Respondent) Secretary of State for Business Innovation and Skills (Second Respondent)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Underhill,Lord Justice Sales,Sir James Munby
Judgment Date10 Feb 2017
Neutral Citation[2017] EWCA Civ 66
Docket NumberCase No: C1/2014/3342

[2017] EWCA Civ 66

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM The High Court, Queen's Bench Division

Administrative Court

Sir Brian Keith

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE PRESIDENT OF THE FAMILY DIVISION

( Sir James Munby)

Lord Justice Underhill

and

Lord Justice Sales

Case No: C1/2014/3342

Between:
The Pharmacists' Defence Association Union
Appellant
and
Boots Management Services Ltd
First Respondent
Secretary of State for Business Innovation and Skills
Second Respondent

Mr John Hendy QC and Mr Simon Cheetham (instructed by The Pharmacists' Defence Association) for the Appellant

Mr David Reade QC and Mr Martin Palmer (instructed by Baker & McKenzie LLP) for the First Respondent

Mr Daniel Stilitz QC and Mr Joseph Barrett (instructed by The Government Legal Department) for the Second Respondent

Hearing dates: 22 & 23 November 2016

Approved Judgment

Lord Justice Underhill

INTRODUCTION

1

The First Respondent, Boots Management Services Ltd, is the company within the Boots group which employs its staff: I will refer to it simply as "Boots". The Appellant, the Pharmacists' Defence Association Union ("the PDAU"), is an independent trade union representing pharmacists. It has a substantial membership among pharmacists employed by Boots. It has made a request to Boots to be recognised for collective bargaining purposes in accordance with the procedures under Part I of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992. Shortly before that request was made Boots entered into a recognition agreement, albeit with a very limited scope, with a non-independent trade union, the Boots Pharmacists Association ("the BPA"). It is (now) common ground that the effect of that recognition was to prevent the PDAU being able to take advantage of the statutory procedures to seek compulsory recognition. As the PDAU sees it, what has happened is that Boots has entered into a token recognition agreement with a tame in-house trade union in order to avoid having to deal with an independent union.

2

The PDAU contends that that state of affairs means that the statutory scheme of recognition fails to comply with the requirements of article 11 of the European Convention on Human Rights ("the Convention") and that it is entitled to a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998. By a somewhat complicated procedural route that claim came before Sir Brian Keith, sitting as a High Court Judge; and by a judgment dated 12 September 2014 he dismissed it. This is an appeal against that decision.

3

The PDAU has been represented before us by Mr John Hendy QC, leading Mr Simon Cheetham, and Boots by Mr David Reade QC, leading Mr Martin Palmer. The Secretary of State for Business, Innovation and Skills (now presumably the Secretary of State for Business, Energy and Industrial Strategy), who was an intervener in the High Court and is accordingly a Respondent before us, has been represented by Mr Daniel Stilitz QC, leading Mr Joseph Barrett.

THE RELEVANT LEGISLATIVE PROVISIONS

RECOGNITION

4

The provisions of Part I of Schedule A1, which contains the machinery for compulsory recognition, are detailed and complex, but for present purposes we are only concerned with a few aspects.

5

Paragraph 1 reads:

"A trade union (or trade unions) seeking recognition to be entitled to conduct collective bargaining on behalf of a group or groups of workers may make a request in accordance with this Part of this Schedule."

Although, as appears from that paragraph, a request may be made by a group of unions together, for convenience I will refer simply to a request by a single union.

6

Paragraph 3 identifies the scope of the matters in respect of which a union may seek recognition. It reads as follows:

"(1) This paragraph applies for the purposes of this Part of this Schedule.

(2) The meaning of collective bargaining given by section 178 (1) shall not apply.

(3) References to collective bargaining are to negotiations relating to pay, hours and holidays; but this has effect subject to sub-paragraph (4).

(4) If the parties agree matters as the subject of collective bargaining, references to collective bargaining are to negotiations relating to the agreed matters; and this is the case whether the agreement is made before or after the time when the CAC issues a declaration, or the parties agree, that the union is (or unions are) entitled to conduct collective bargaining on behalf of a bargaining unit.

(5) Sub-paragraph (4) does not apply in construing paragraph 31 (3).

(6) Sub-paragraphs (2) to (5) do not apply in construing paragraph 35 or 44."

7

It will be seen that sub-paragraph (2) excludes for the purpose of Part I the definition of "collective bargaining" in section 178 (1) of the main Act in favour of the definition in sub-paragraph (3). I need to set out the terms of section 178 (1), and also of sub-section (2), to which it refers, in full. They read:

"(1) In this Act 'collective agreement' means any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers' associations and relating to one or more of the matters specified below; and 'collective bargaining' means negotiations relating to or connected with one or more of those matters.

(2) The matters referred to above are —

(a) terms and conditions of employment, or the physical conditions in which any workers are required to work;

(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;

(c) allocation of work or the duties of employment between workers or groups of workers;

(d) matters of discipline;

(e) a worker's membership or non-membership of a trade union;

(f) facilities for officials of trade unions; and

(g) machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers' associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures."

As appears from sub-section (1), this is the definition which applies for the purpose of the Act generally — save as specifically provided otherwise. The range of matters which can be the subject of collective bargaining as so defined is very wide; and the definition is satisfied so long as the negotiations relate to any one of the specified matters. The effect of paragraph 3 (3) is to replace that definition with one which applies to a much more limited (albeit core) range of subject-matters — pay, hours and holidays; but it should be noted that the effect of sub-paragraph (6) is to restore the primary definition as regards (so far as relevant for our purposes) paragraph 35, to which I refer below.

8

Paragraph 4 provides that a request for recognition must be made in accordance with paragraphs 5–9. The only point that I need note is that paragraph 6 provides that a request will not be valid unless the union making it has a certificate of independence. Thus only independent trade unions — that is, trade unions accepted by the Certification Officer as not dominated or controlled, or liable to be unduly influenced, by an employer (see section 5 of the 1992 Act) – may take advantage of the statutory recognition procedure.

9

If the employer fails to respond to a valid request, or does not accept it, paragraph 11 provides that the union may apply to the Central Arbitration Committee ("the CAC") to decide whether the bargaining unit proposed in its request is appropriate and, crucially, whether it has the support of a majority of the workers constituting the appropriate unit. Paragraph 12 contains a similar provision which applies where the employer has initially indicated a willingness to negotiate about recognition but the negotiations have broken down. An application to the CAC under one or other of paragraphs 11 and 12 is the essential gateway to the remainder of the statutory procedure and thus to the possibility of the union achieving recognition compulsorily if the employer remains intransigent.

10

Paragraphs 33–42 contain a series of provisions about the "admissibility" of applications to the CAC under paragraphs 11 or 12. The crucial provision for the purpose of the issue before us is paragraph 35, which reads (so far as material):

"(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 on behalf of any workers falling within the relevant bargaining unit.

(2) But sub-paragraph (1) does not apply to an application under paragraph 11 or 12 if—

(a) the union (or unions) recognised under the collective agreement and the union (or unions) making the application under paragraph 11 or 12 are the same, and

(b) the matters in respect of which the union is (or unions are) entitled to conduct collective bargaining do not include all of the following: pay, hours and holidays ("the core topics").

(3) …

(4) In applying sub-paragraph (1) an agreement for recognition (the agreement in question) must be ignored if —

(a) the union does not have (or none of the unions has) a certificate of independence.

(b) at some time there was an agreement (the old agreement) between the employer and the union under which the union (whether alone or with other unions) was recognised as entitled to conduct collective bargaining on behalf of a group of workers which was the same or substantially the same as the group covered by the agreement in question, and

(c) the old agreement ceased to have effect in the period of three years ending with the date of the agreement in question.

(5)-(6) …"

It will be recalled...

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