Case - R (on the application of Boots Management Services Ltd) v. Central Arbitration Commitee

[2014] IRLR 278, Administrative Court - John Hendy QC
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The Central Arbitration Committee had been wrong to read words into the Trade Union and Labour Relations (Consolidation) Act 1992 Sch.A1 Pt I para.35 so that it only precluded a trade union's application for recognition within the relevant bargaining unit where there was already in force an agreement under which a union was recognised as entitled to conduct collective bargaining in respect of pay, hours and holidays.

 

The claimant employer (B) applied for judicial review of a decision ([2013] I.R.L.R. 262) of the defendant committee that an application by the interested party (P) for statutory recognition as the trade union for collective bargaining had been admissible under the Trade Union and Labour Relations (Consolidation) Act 1992 Sch.A1 Pt I para.35.

P had sought recognition in relation to a bargaining unit comprising all registered pharmacists employed by the respondent (B) in the United Kingdom. B then entered into an agreement with the Boots Pharmacists Association (BPA) and argued that P's application was inadmissible because the BPA was already recognised for the same bargaining unit. The committee determined that B had recognised the BPA for certain limited purposes only under s.178(2)(f) and s.178(2)(g), in order to block P's application for statutory recognition on pay and conditions pursuant to para.35. The committee determined that para.35 was incompatible with the rights guaranteed by the European Convention on Human Rights 1950 art.11. As the committee did not have the power to make a declaration of incompatibility, it determined that, pursuant to the Human Rights Act 1998 s.3(1), it could read into para.35(1) the words "in respect of pay, hours and holidays" after the word "bargaining". On that reading, P's application for statutory recognition was found to be admissible.

B contended that the committee had erred in reading into para.35 words which had the effect of impermissibly equating workers' rights to collective bargaining with an employer's duty to engage in collective bargaining. The effect was to treat art.11 as forcing employers to recognise a trade union as the body for collective bargaining, rather than merely entitling a trade union to engage in collective bargaining if the employer was prepared to, or persuading the employer to engage if it was not prepared to do so voluntarily.

HELD: The ordinary and natural meaning of the phrase "collective bargaining" in para.134(1)(a) entailed negotiations over pay, hours and holidays and giving it that meaning was the only way that the committee could act consistently with its duty to have regard to the encouragement and promotion of fair and efficient practices and arrangements in the workplace (see paras 26, 30, 42 of judgment). However, para.3(6) had expressly prohibited the phrase "collective bargaining" in para.35 from meaning "negotiations relating to pay, hours and holidays", and it had not been not open to the committee to add those words, Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 A.C. 557 applied and Demir v Turkey (34503/97) [2009] I.R.L.R. 766 considered. The committee should have given effect to para.35 even if it meant that P's right to engage in collective bargaining was violated (paras 43-45). However that was not the end of the matter. Unlike the committee, the High Court did have jurisdiction to make a declaration of incompatibility and could, for example, declare that para.3(6) of the schedule was incompatible with art.11 to the extent that it did not disapply the definition of the phrase "collective bargaining" in s.178 to the phrase "collective bargaining" in para.35. The definition of the phrase in para.3(3) would then apply to the phrase in para.35, but since para.3(3) took effect subject to para.3(4), which limited the phrase to the areas covered by B's agreement with the BPA, para.3(4) was also potentially incompatible with art.11. P was not a defendant but merely an interested party to B's claim for judicial review, and had not sought a declaration of incompatibility should B be successful. Furthermore, the CPR r.19.4A(1) prohibited the court from making a declaration of incompatibility without notice to the Crown. No final order was made until P had considered whether to apply for declarations of incompatibility, on notice to the Crown (para.48).

Judgment accordingly

 

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