Sweetheart and the shotgun

CAC sets the scene for union turf wars and upsets the delicate balance of industrial relations

“We are simply ironing out a wrinkle, rectifying a perplexing anomaly, and not proposing to alter the wording in a way which is incompatible with the underlying thrust of the legislation.”

This is the Central Arbitration Committee’s (CAC) modest self-assessment of its decision in PDAU v Boots Management Services Ltd. In reality, the ruling boldly rewrites industrial relations law on human rights grounds, threatening major disruption to established collective bargaining arrangements.

While most collective bargaining in the UK is voluntary, unions can apply to the CAC for statutory recognition – a right to negotiate with an employer over pay, hours of work and holidays. However, the legislation – para 3 of Schedule 1A TULRCA 1992 – provides that if a union is already recognised for collective bargaining purposes, the CAC must reject another union’s request for recognition.

When pharmacists’ association the PDAU sought recognition from Boots, the employer hurriedly concluded a ‘sweetheart’ deal with the Boots Pharmacists Association (BPA) which the PDAU regarded as being “in the pocket of management”. Recognition of the BPA fell short of bargaining rights over pay, hours of work and holidays but, on the face of it, rendered the PDAU application invalid.

Not so, ruled the CAC. Significantly extending the right to freedom of association under the European Convention on Human Rights, it declared the ability to negotiate terms and conditions an essential part of the Article 11 right. As a result, para 35 of Schedule 1A TULRCA 1992 must be rewritten so only the existing recognition of a union for bargaining on pay, hours of work and holidays can automatically block another’s request for recognition. The sweetheart deal is dead.

The difficulty is that the CAC’s approach contradicts Parliamentary intent. The recognition legislation was drafted to prevent turf wars between unions seeking the right to negotiate pay, hours and holidays for the same group of workers. To that end, para 3(6) gives the widest meaning to ‘collective bargaining’ arrangements in para 35, with the intent that any form of recognition blocks a statutory request. This is not a “wrinkle”, but a firewall. The CAC ruling does not mention this provision, but effectively deletes it.

The implications are profound. Voluntary recognition for bargaining over terms and conditions is often the culmination of a long process between employer and union, where trust is built up over time.

Now, any agreement falling short of negotiating rights over pay, hours of work and holidays is vulnerable to being usurped by a rival union’s request. Established unions are incentivised to pursue recognition to head off rivals.

The CAC has fired the starting gun for union turf wars and an upsurge in recognition requests. The sweetheart deal is replaced with the shotgun marriage and the delicate balance of industrial relations is significantly undermined.