Union victory in Boots recognition battle





Just how much scope there is for a recalcitrant employer to resist an application for statutory recognition is illustrated by the eight year battle by independent union the Pharmacists Defence Association Union (PDAU) to bargain collectively on behalf of pharmacists at high street chemist Boots. In February 2019, the epic battle finally reached a successful conclusion with a 92.4% vote in favour of the union. 


PDAU first asked Boots to sign a voluntary recognition agreement in 2010. When Boots refused, PDAU made a formal application to the CAC. Boots then contacted PDAU to initiate voluntary talks so the union withdrew its formal application. However Boots had no intention of recognising PDAU. Instead, as soon as the application was withdrawn, Boots signed a secret sweetheart deal with an organisation known as the Boots Pharmacists Association (BPA), refused a Certificate of Independence by the Certification Officer who described it as open to being “dominated or controlled” by Boots. The statutory recognition rules allowed Boots to recognise this sweetheart union and to use the signed voluntary recognition agreement to defeat PDAU’s application for statutory recognition (see page 143). 


Boots’ recognition agreement with the BPA was limited to collective bargaining over “union facilities and the bargaining machinery”. On all other issues, including the core elements of the statutory collective bargaining agenda, pay, holidays and hours, Boots’ only obligation was to “consult”. Describing Boots’ behaviour as “disingenuous” and “deliberately misleading”, the CAC ruled that the statutory recognition procedure breached Article 11 of the European Convention on Human Rights (ECHR) by allowing an employer to defeat an application by an independent union based on a pre-existing agreement that excludes collective bargaining on the three key elements of the work/wage bargain: pay, hours and holidays. Since the BPA agreement covered only union facilities, it did not prevent an application for recognition by an independent union, decided the CAC (PDAU v Boots Management Services (TURI/823/2012).




Boots applied for judicial review and a high court judge overturned the CAC’s ruling. The statutory procedure did not infringe Article 11, concluded the judge, because the rules allow a member of the sweetheart union to launch statutory proceedings to apply for its derecognition. Given this possible course of action, the procedure was not incompatible with human rights law. An appeal to the Court of Appeal was dismissed (PDAU v Boots Management Services Limited and Secretary of State for Business, Innovation and Skills [2017] EWCA Civ 66).
 



Accordingly, in July 2017, six Boots pharmacists, backed by PDAU, launched a formal application to derecognise the BPA — the first ever case of its kind. Over 1,000
Boots pharmacists pledged support in just 40 days and the CAC ruled that there was enough evidence of support to justify holding a derecognition ballot. 


Boots refused to end the BPA bargaining arrangements voluntarily, so in February 2018, a contested hearing took place to establish the BPA’s bargaining unit. This was necessary, because only workers in the bargaining unit of the sweetheart union could vote for derecognition. The BPA claimed that its bargaining unit included senior managers who used to work as customer-facing pharmacists and who had retained their BPA membership. The CAC disagreed and set an appropriate bargaining unit of mainly customer facing pharmacists that excluded senior management (Parker & Others v Boots Pharmacists Association and Boots Management Services Limited Case No. TUR6/003/2017). 


The union still had a mountain to climb. The BPA’s bargaining unit comprised around 6,950 pharmacists. To meet the 40% voting threshold, at least 2,780 had to vote to derecognise the sweetheart union. PDAU had around 2,500 members in the bargaining unit. Even if they all voted in favour of derecognition while just 100 voted against (25 to one in favour), the six pharmacists’ bid would fail, because 2,500 is below the 40% threshold. 


Following a further unsuccessful attempt to end the BPA arrangements by agreement, the first ever formal CAC derecognition ballot took place. Concerns about the accuracy of address records supplied by Boots resulted in a formal extension of the ballot window so that duplicate ballot papers could be sent to PDAU members who had not received one. When votes were finally counted, PDAU beat the 40% threshold, ending the BPA agreement. In total, 2,826 pharmacists voted “yes” to derecognition (86.6% of the vote and 41% of the bargaining unit). The BPA managed 436 votes. 


Boots refused to agree to voluntary recognition, so the next step was a formal application for statutory recognition which the CAC accepted, describing as “remarkable” the union’s consistent levels of support (around 36% in membership) over nearly six years, with members regularly paying subs even though PDAU could not yet negotiate with Boots. In response, Boots set up another management-controlled structure which it called the Boots Joint Negotiating Committee.


The formal ballot for statutory recognition of PDAU by Boots took place over two weeks in February 2019. The result was a resounding victory, with 3,229 votes in favour of the union (92.4%). The union now hopes that Boots will be able to put the past behind it and work positively with the union. 


PDAU v Boots Management Services Limited TURI/1062/2018 and others


https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744652/Bargaining_Unit_Decision.pdf