Ratified treaties¹ 

Freedom of association/ Trade union/ Collective bargaining/Use of international law as a guide for interpreting domestic law

The trade union Pharmacists' Defence Association Union (PDAU) submitted an application to the Central Arbitration Committee(CCA) with the aim of being recognized as a trade union by the defendant enterprise in order to exercise the right to collective bargaining. According to the union’s arguments, the enterprise had repeatedly refused to recognize the union, arguing that there was another existing association (Boots Pharmacists Association, BPA) with which the enterprise had signed a collective agreement.. According to the PDAU, the agreement concluded between the BPA and the employer could not beconsidered as a collective agreement because it was restricted to matters related toconsultation machinery and facilities for trade union officials, while aspects related to pay, working hours, holidays, working conditions and terms of employment were excluded from the negotiations. The PDAU considered these restrictions to the BPA’s negotiating powers made it also possible to reach the conclusion that the association was not, in fact, a union..

In deciding the case, the CCA considered para. 35 of the Trade Union and Labour Relations (Consolidation) Act, 1992 (TURLA) that precludes the admission of an application to the Committee if i) there is a union which has reached ii) a collective agreement between it and the relevant employer.

The Committee concluded that the BPA did in fact comply with the requirements to be considered a trade unionunder  theTURLA. The Committee also concluded that the agreement between the BPA and the enterprise constituted a collective agreement, taking into consideration that it regulated at least one of the matters indicated in theTURLA. However, it also underlined that

“negotiations on issues directly relevant to trade union members, such as pay, hours and holiday, working conditions and terms and conditions of employment is central to the meaning of collective bargaining, as articulated in ILO Convention 154 […]”.²

In examining para. 35 of the Act, the Court held this “must be construed to give proper effect to Art. 11 of the European Convention on Human Rights” and has highlighted that since the Demir casecollective bargaining “has in principle become one of the essential elements” of the right protected by art. 11.³

Thus, it agreed with the PDAU’s submission that

“a right merely to bargaining collectively over facilities for trade union officials and consultation machinery … does not, on the face of it, amount to collective bargaining within the meaning of the ECHR, ILO and EU source materials and jurisprudence since it expressly excludes bargaining on matters to do with any working conditions, terms of employment, hours, payand holiday.”⁴

Consequently, the Committee concluded that preventing an independent union from seeking recognition, where no other union, has collective bargaining rights for at least pay, hours and holiday was an infringement of Art. 11. Moreover, it added that:

“It is not permissible in our view, for the Employer to cherry pick two matters in the expansive definition of collective bargaining set out in [the law] which do not, per se, amount to collective bargaining either in the UK industrial relations context or our international obligations, in order to block the Union's claim. We are especially mindful that the provisions should be construed strictly where a non-independent union is concerned given the risk of interference and domination as expressed in Article 98(2) ILO Convention on the Right to Organise and Collective Bargaining.”⁵

Therefore, according to the CCA a literal interpretation of para. 35 of the Act interferes with the Union’s rights under Art. 11 of the European Convention on Human Rights. A right merely to bargaining over the two above-mentioned issues cannot fulfil the scope of Art. 11 or be sufficient to preclude the exercise of this right over the wider interests of the workers.

Thus, relying on ILO Conventions to interpret domestic and European Union legislation, , the Committee decided that the application submitted by the union PDAU was admissible, and consequently ordered the authorities in charge of registering new trade unions to proceed to verify whether the trade union complied with the other legal requirements for the organization to be recognized.