Trade Union Recognition and Article 11

[Thanks to Georgina Hirsch of Devereux Chambers for preparing this case summary]

Does the letter of UK trade union recognition law comply with Article 11 of the European Convention on Human Rights?

No, says the Central Arbitration Committee in Pharmacists Defence Association v Boots Management Services Ltd.

The Trade Union & Labour Relations (Consolidation) Act 1992 provides  a mechanism for a trade union to seek recognition by an employer if that employer does not already recognise a trade union for collective bargaining.  The mechanism is regulated by the Central Arbitration Committee, who were faced in this case by an employer who had 'recognised' the Boots Pharmacists Association(BPA) after the Pharmacists Defence Association ('the union') had contacted Boots Management Services Ltd ('the employer') for formal recognition.

This appeared to be a deliberate attempt by the employer to block the independent union's application by recognising the BPA, who were listed as a trade union by the Certification Officer for Trade Unions and Employers Associations ('the CO'), but did not have a Certificate of Independence from the CO. The union accused the BPA of not being independent, and also argued that because the BPA was not allowed to bargain pay, terms and conditions or  holiday under their 'recognition' agreement, that agreement did not meet the requirements of compliance with Art.11, which, according to the European Court of Human Rights Grand Chamber decision in Demir & Baykara v Turkey establishes that in principle, the right to collective bargaining is an essential element of the right to form and join trade unions (para 154).

The CAC Panel found that TULRCA 1992 was not compliant with Art 11, and in accordance with its duty under the HRA 1998 ss.2&3 it "iron(ed) out a wrinkle" in TULRCA 1992 Sch A1 35 by adding the words "in respect of pay, hours and holiday" as a qualifier to "collective bargaining", with the effect that an agreement between an employer and a non-independent union providing collective bargaining rights limited to facilities for officials and machinery for collective consultation cannot be used to block an application by an independent trade union for recognition for collective bargaining on pay, hours and holidays.