Boots Management Services Ltd, R (On the Application Of) v The Central Arbitration Committee

Article 11 of the Convention protects, as an essential element of trade-union freedom, a right to engage in meaningful collective bargaining concerning workers’ terms and conditions of employment. Bargaining confined to union facilities and consultation machinery is insufficient.

That protection does not permit a court or tribunal to rewrite clear statutory language under section 3 of the Human Rights Act 1998. An interpretation which changes the substance of a provision or contradicts the statutory scheme is impermissible. Where the legislation is incompatible with Article 11, the proper remedy may instead be a declaration of incompatibility.

The Pharmacists’ Defence Association Union sought statutory recognition by Boots for collective bargaining on behalf of pharmacists. Boots had entered into an agreement with the Boots Pharmacists’ Association which provided consultation rights and limited bargaining rights concerning union facilities and consultation machinery, but not pay, hours or holidays.

The Central Arbitration Committee concluded that the agreement engaged paragraph 35 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, but interpreted paragraph 35 so that the PDAU’s application for recognition remained admissible. Boots applied for judicial review. The central issues were the scope of Article 11 and whether paragraph 35 could lawfully be read in that manner.

1. Article 11. The right to form and join trade unions for the protection of workers’ interests includes, in principle, a right to engage in collective bargaining. That right must involve meaningful negotiations concerning terms and conditions of employment, including pay, hours and holidays. Bargaining limited to facilities for union officials and consultation machinery does not satisfy it.
2. The issue was not whether Article 11 itself imposed a general duty on an employer to recognise a union. The issue was whether a statutory bar preventing a union from invoking the recognition procedure, because another union had limited bargaining rights, was compatible with the right to engage in meaningful collective bargaining.
3. The restriction could not be justified by the margin of appreciation. The pharmacists’ choice of union was protected by the statutory conditions for recognition, and no indisputable imperative justified denying meaningful collective bargaining merely because another union had limited rights.
4. The CAC was entitled to construe the undefined expression “collective bargaining” in paragraph 134(1)(a) of Schedule A1 according to its ordinary and natural meaning. Having regard to paragraph 171, that meaning included negotiations over pay, hours and holidays. The Part VI derecognition procedure therefore did not apply to the limited agreement between Boots and the BPA.
5. Although section 3(1) of the Human Rights Act 1998 permits words to be read into legislation, the approach required by Ghaidan v Godin-Mendoza [2004] 2 AC 557 does not permit the court to change the substance of a provision or contradict its essential scheme. Paragraph 3(6) expressly prevented the paragraph 3(3) definition from applying to paragraph 35. The CAC therefore could not insert words into paragraph 35 to produce the contrary result.
6. The court declined to make a final order immediately. The PDAU was given 21 days to consider seeking a declaration of incompatibility concerning paragraph 3(4), paragraph 3(6) or paragraph 35(1), after which the court would determine whether a further hearing and final order were required. Costs were reserved.

Central Arbitration Committee: Held that the PDAU’s application for statutory recognition was not inadmissible under paragraph 35 of Schedule A1, reading words into paragraph 35 to give effect to Article 11.

High Court (Administrative Court): On Boots’ judicial review claim, held that the CAC’s reading of paragraph 35 was impermissible. Final relief was deferred pending consideration of a possible declaration of incompatibility.