We sought to represent Boots pharmacists and pre-registration graduates and to be involved in “collective bargaining” negotiations on pay and terms and conditions of employment. On 10 February 2012, Boots again refused.
Application to the Central Arbitration Committee (CAC) for Statutory Recognition
After Boots’ refusal to voluntarily recognise the PDA Union, we formally requested recognition by statutory procedure (via the CAC) from Boots in February 2012. We sought to officially represent pre-registration pharmacy graduates and pharmacists throughout the UK, who worked below area manager level, on pay and terms and conditions.
On 14 February 2012, Boots suggested talks with the PDA Union and asked it to withdraw its application before the CAC deadline for discussions expired, saying it “was prepared to meet… to discuss the PDA’s request for recognition and to discuss whether any agreement between the parties can be reached”. CAC rules allowed 20 days for discussions to take place unless an application for a further extension was supported by both parties. The PDA Union agreed to Boots’ request in February 2012, withdrawing the application in good faith to allow talks to be held. The PDA Union said “It is hoped that despite its initial rejection of PDA Union recognition, the company is making a genuine attempt to reach an agreement by wishing to meet.” link
Boots had no intention of recognising the PDA Union and used the time to prepare an agreement with the BPA, which was signed by both parties on 1 March 2012. link Boots met with the PDA Union on 2 March 2012 and made no mention of the agreement concluded with the BPA the day before. Instead, Boots told the PDA Union that it had found the meeting useful and that it would now consider its application. The PDA Union, acting in good faith, welcomed Boots’ apparent earnestness.
Boots Director of Pharmacy wrote to us on 22 March 2012 saying it did not accept the proposal for formal recognition and it already had a formal, productive and effective way of working with the BPA. Boots then wrote rejecting our request on 23 March 2012, stating that it had recognised the BPA for certain collective bargaining purposes, instead offering the PDA Union the opportunity of a further meeting “to listen to your ideas, views and concerns”. This was the first time Boots had mentioned the agreement to the PDA Union. We therefore proceeded with an application to the CAC.link
CAC Hearing in 2012
On 11 December 2012, the CAC conducted a hearing to determine whether the PDA Union’s application for recognition for collective bargaining rights with Boots should be allowed to proceed.link
The PDA Union argued that a recent European Court of Human Rights judgment – Demir and Baykara v Turkey – had set a precedent. The determination said that the “right to bargain collectively with the employer has, in principle, become one of the essential elements of the “right to form and to join trade unions for the protection of [one’s] interests” set forth in in Article 11 of the [European] Convention [on Human Rights].”link
On 29 January 2013, the CAC determined that the PDAU’s application for recognition for collective bargaining rights with Boots should be allowed to proceed on the grounds that as the British law stands, it was not in line with current European Human Rights case law and therefore they could interpret the law to reflect this. A leading employment lawyer said the case “could mean the end of ‘sweetheart deals’ between employers and certain unions” and was a “very significant development in industrial relations law”.link The CAC’s decision was subsequently overturned (see later).
A notable quote from the determination, published in 2013, reads:
The Employer [Boots] had been disingenuous as the Employer had deliberately misled the [PDA] Union in order to buy time to conclude arrangements with the BPA recorded in the Agreement.
The Boots Director of Stores HR told the CAC panel that the intended effect of the agreement with the BPA was to ensure that the BPA would not have any negotiating rights on terms and conditions and that as a by-product the PDAU’s application for negotiating terms and conditions would also be blocked. He also agreed under cross examination that the intended effect of the agreement signed with BPA in its totality was to ensure that no Boots pharmacists could have any negotiating rights over their terms and conditions whatsoever.link
The CAC said in its determination:
We broadly accepted Mr Murphy’s description of the BPA’s rather meek relationship with the Employer and acknowledge that the BPA may have chosen to accept management diktat and taken a strategic decision not to oppose management and to co-operate as harmoniously as possible. However we find that it is the choice and decision of the BPA to do so.
Boots Application for a Judicial Review
In parallel with the ongoing events, Boots applied for and was granted a judicial review (JR) to try to get the original CAC decision overturned; the date of the JR was set for 23 October 2013.
Additionally, Boots set in motion a number of other initiatives. The PDA Union cannot know why they were introduced, but they could have had the effect of eroding support for the PDAU amongst its employees.link
CAC Hearing October 2013
The CAC conducted an oral hearing on 25 October 2013 on whether the PDA Union’s application for recognition for the purposes of collective bargaining was admissible.link This included, for example, whether members of the PDA Union constitute at least 10% of the “bargaining unit” (pharmacists and pre-registration graduates which the union is seeking to represent) and whether >50% of those in the bargaining unit would support the application. The separate judicial review proceedings were ongoing at that point.
In December 2013, as part of the arbitration process, a further CAC hearing was held to determine whether or not the PDA Union satisfied an important test: whether it would have more than 50% support from Boots employee pharmacists if it allowed the application to proceed to the next step (a ballot). The CAC found that despite Boots’ arguments that support for PDA Union recognition was minimal, having independently and confidentially compared the database of Boots employee pharmacists and the membership lists of the PDA Union, on the balance of probabilities and based on the PDA Union’s evidence versus that presented by Boots, the PDA Union would likely have the support of more than 50% of Boots employee pharmacists. We were able to show that there was a high level of support among Boots pharmacists, including BPA members and non-PDA Union members, for the PDA Union to collectively bargain on their behalf.link
A notable comment from the determination read:
In a situation as here where the Employer has made its opposition to recognition of the Union well-known, silence can be indicative of fear of speaking out, not lack of support for recognition.