The interim determination of the Judicial Review (JR) instigated by Boots last year has been handed down. Boots challenged the Central Arbitration Committee’s (CAC) decision to permit the PDA Union to proceed with its application for collective bargaining on behalf of Boots employed pharmacists and pre-reg trainees.
Boots argued that domestic UK legislation effectively blocked our application because it had an existing agreement with the Boots Pharmacists Association (BPA). The CAC concluded that the BPA agreement specifically excluded matters of real significance for pharmacists such as pay, hours & holiday. Effectively, Boots had sought to prevent pharmacists and pre-reg trainees from having collective bargaining rights with any union. The CAC held that Article 11 of the European Convention on Human Rights covered the right to collectively bargain and, based upon recent case law, found that Boots had interfered with the rights guaranteed in Article 11 by exploiting a loophole in domestic UK legislation. The CAC, which is the independent government appointed arbitrator, has a duty to interpret legislation in accordance with the Convention and it inserted wording into the legislation in order to “iron out a wrinkle”. Boots brought the JR proceedings against the CAC alleging that it had gone too far.
The Judge hearing the case accepted all of the PDA Union’s arguments approved by the CAC, except one. He concluded that the CAC should have read the domestic UK law as it stands, even if it violated the right of Boots pharmacists to engage in collective bargaining through the PDAU. The Judge invited the PDA Union to consider applying for a declaration that the legislation which Boots used to block the application was incompatible with Article 11 before finalising his judgement. He commented that the CAC could not make a declaration of incompatibility, but he could.
We recently reported that the CAC had permitted the PDA Union to progress with our application. It concluded that, on the evidence before it, the majority of Boots employed pharmacists and pre-reg trainees were likely to support collective bargaining on pay, hours and holidays through the PDA Union. Unfortunately the JR decision is likely to bring the statutory process to a halt for the time being and we are aware that Boots plans to apply for an injunction against the CAC unless it agrees to stay the process.
Boots are expending considerable amounts of time and money in order to prevent their pharmacists and pre-registration trainees from being able to negotiate their pay, hours and holidays through the PDA Union. This is despite the likelihood that the majority of Boots pharmacists pre-registration trainees are likely to support this. Boots has exploited domestic UK legislation from 1992, which we believe it knows is likely to be in conflict with Article 11 of the European Convention on Human Rights. They are now in an uncomfortable position, as they are striving to block the PDA Union collectively bargaining on behalf of their pharmacists and pre-registration trainees. This is despite fact it is likely that the majority of Boots employed pharmacists and pre-reg trainees would support collective bargaining on pay, hours and holidays through the PDA Union.
This is not the end of the journey for the PDA Union. The battle for recognition within Boots is of significance for all community pharmacists and indeed the profession as a whole. The community pharmacy landscape is dominated by large multinational commercial organisations. A recognition agreement with Boots will enable its pharmacists to have a true collective voice within the most powerful pharmacy multiple in the UK and be a model for other employers to follow. An effective collective mechanism for pharmacists to negotiate with their employer on key areas affecting their work can only enhance professionalism and improve patient safety in ways that are not currently available to pharmacists.
The next stage will be for the PDA Union to consider whether to apply for a declaration of incompatibility as invited to do so by the Judge and to wait for the final judgement. At that point either the PDAU or Boots may wish to seek leave to appeal, as although Boots has managed to suspend the statutory process for the time being, it lost all but one of the arguments it put forward.