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Sweetheart unions - High Court Boots CAC decision into touch

A recent decision in the long-running Boots case has confirmed that there is scope for employers to block hostile union recognition applications via "sweetheart deals" - ie via recognition of "friendly" unions or via limited collective agreements which provide for recognition only on very limited matters.

The issue

Under UK law, a trade union cannot make a request for statutory recognition if there is a pre-existing collective agreement with another trade union. Therefore, employers could avoid recognising a trade union by agreeing a limited collective agreement with a non-independent union or a favoured trade union. A "collective agreement" can include an agreement which provides for negotiation of limited matters such as trade union facilities.

So, employers would try to have (sometimes quite limited) collective agreements with friendly unions, to try to head off applications for compulsory recognition by "less desirable" unions. The Boots case makes this easier.

The Boots case

In the Boots case, the Central Arbitration Committee (the court that decides trade union applications for compulsory recognition) (the CAC) allowed a trade union's application for statutory recognition despite the fact that Boots had already entered into a collective agreement with another trade union.

Boots had a long-established relationship with a listed trade union, the Boots Pharmacists' Association (BPA) but the BPA was never formally recognised by Boots. The Pharmacists' Defence Association Union (PDAU) became disillusioned with the BPA's approach and sought statutory recognition for collective bargaining purposes.

Boots' response was to formally recognise BPA in an attempt to block PDAU. The collective agreement provided for negotiation about (i) facilities for trade union representatives and (ii) consultation machinery, but specifically excluded any bargaining or negotiation rights on pay, hours and holidays. Under UK law, that is enough for the agreement to be a collective agreement – ie negotiation on very limited matters. However, in this case, the CAC allowed PDAU's application. It concluded that a recognition application for recognition on pay, hours and holiday should not be blocked unless the existing collective agreement covers collective bargaining for pay, hours and holiday. In reaching its conclusion, the CAC decided that it had to construe the relevant legislation in a manner that was consistent with article 11 of the European Convention of Human Rights (ECHR) (ie the right of freedom and assembly, including the right for individuals to join trade unions). UK courts and tribunals must, so far as is possible, interpret UK legislation in a manner compatible with the ECHR.

Boots appealed against the CAC's decision and the High Court quashed the CAC's decision to allow PDAU's application to proceed. However, the High Court invited the PDAU to make an application to the Court so that it could decide whether or not the legislation which underpinned the decision to block hostile union recognition applications via "sweetheart deals" was compatible with article 11 of the ECHR.

The PDAU made such an application. In its latest decision on the case, the High Court decided that the relevant legislation was compatible with the ECHR because a worker could apply for the BPA to be de-recognised (which would allow the PDAU to apply for recognition).

Is there any action you should take?

If you currently recognise a trade union, the Boots case should be very helpful in blocking applications from other unions, even if those other unions command significant support in particular areas of your business. However, there may be parts of your business which are not covered by any recognition arrangements and those parts may be susceptible to other unions trying to get recognition.

Therefore, you should review what any existing recognition agreements say and in light of that, with TLT, get a handle on whether your business may be at risk of successful compulsory recognition applications.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at September 2014. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

TLT LLP is a limited liability partnership registered in England & Wales number OC 308658 whose registered office is at One Redcliff Street, Bristol BS1 6TP England. A list of members (all of whom are solicitors or lawyers) can be inspected by visiting the People section of this website. TLT LLP is authorised and regulated by the Solicitors Regulation Authority under number 406297.

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