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Boots fights to keep its “sweetheart” trade union in the face of PDAU drive

Elizabeth Sukkar analyses the outcomes of the Boots collective bargaining case and finds that even some members of the multiple’s preferred union are keen for independence.

Boots’s 6,891 pharmacists must feel they are on a roller-coaster with the long-running wrangle over who should represent them on matters of pay and working conditions. Last week saw another instalment in the saga, in the form of an interim decision of a judicial review, ruling in favour of Boots.

To recap, the Pharmacists’ Defence Association Union (PDA Union) has bid to win collective bargaining rights for Boots pharmacists. Boots, however, wants to work with another trade union — the Boots Pharmacists Association. But the BPA is not considered to be independent and has not been active in terms of collective bargaining, something the PDA Union, which already represents 30 per cent of Boots pharmacists, is seeking to do.

Although on the surface the High Court ruled in favour of Boots, PDA Union director John Murphy has called this just a “hiccup”. The ruling is complicated and, in Mr Justice Keith’s own words, is not his “final order” on the matter.

Both Boots and the PDA Union have tried to paint the ruling as a success. Boots declared that the High Court’s decision will “clearly” affect the PDA Union’s formal recognition application, adding that the High Court found that the Central Arbitration Committee (CAC) — which had given the union the green light with its application in January 2013 — should not have departed from the wording on existing UK legislation in arriving at its original decision. This means that the application should not have been allowed to proceed, Boots added.

In contrast, the PDA Union said that the judge hearing the case accepted all its arguments approved by the CAC, except one. 

Judge is sympathetic to PDA Union

“While Mr Justice Keith came down on Boots’s side and halted the mandatory recognition process of the PDA Union, the judge appeared to sympathise with the PDA Union’s position,” David Reissner, partner and head of healthcare at law firm Charles Russell, told The Journal.

He explained that the judge was of the view that the CAC’s interpretation of the Trade Union and Labour Relations Consolidation Act 1992 (TULRCA) — paragraph 35 of Schedule 1A — went beyond the CAC’s power, to interpret primary legislation. In particular, the CAC looked at article 11 of the European Convention on Human Rights. This addresses “Freedom of assembly and association”, where you have the right to take part in peaceful meetings and to set up or join associations, including trade unions.

Mr Reissner added: “The judge found that this was outside the remit of the CAC, which was required to follow UK legislation. However, the judge then invited the PDA Union to apply for a declaration of incompatibility between the legislation and the Convention.”

The relevant part of the TULRCA provides that when considering an application for mandatory recognition of a trade union, the CAC must be satisfied that there is not already a collective agreement in force under which a union is recognised and entitled to conduct collective bargaining.

“In other words, recognition cannot be granted to more than one union, even though the European Convention on Human Rights suggests that more than one union can be recognised. In the case of Boots, the company already has an arrangement with the Boots Pharmacists’ Association.”

The PDA Union sought to argue that the existing arrangements with the BPA did not include collective bargaining rights for terms and conditions of employment and that this was, therefore, in contravention of workers’ Convention right to join trade unions to protect their interests.

However, if the PDA accepts the suggestion of Mr Justice Keith and applies for a declaration that TULRCA is incompatible with the Convention and if the declaration is granted, the Government would then have to consider changing UK law to make it compatible with the UK’s obligation to properly implement the European Convention on Human Rights.

Mr Reissner explains: “A declaration of incompatibility does not change the law of itself, but it provides a clear flag to Parliament that there is an issue to be resolved. However, until Parliament takes steps to change the legislation the parties would be unaffected by any such declaration and, therefore, at present the parties are bound by the judicial review decision.”
The PDA Union has 21 days from 22 January 2014 to submit its application to the court for a “declaration of incompatibility”, the judge ruled.

 

Breakdown of PDA Union and BPA membership

 A breakdown of the membership of the PDA Union and BPA

A model for other employers

The PDA Union, which has over 22,000 members, seems determined to have collective bargaining rights beyond Boots and will be a significant player if it wins these in future. Its objective is to seek formal recognition across a “number of pharmacy employers”. Mr Murphy says: “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.”

The ruling is expected to be watched closely by other multiples, although so far their representative body has said little. A spokesman for the Company Chemists’ Association told The Journal: “The CCA does not represent its members on employee-employer issues. So no comment on this matter.”
Steve Gray, director of healthcare at Superdrug, was one of the few representatives of multiple companies to respond to The Journal’s requests for comment. He said: “As trade union membership is a personal choice for the individual concerned, Superdrug does not have a company-wide agreement in place with any pharmacy trade union. Our dedicated pharmacists all have the option to join any trade union they wish, should they want to be represented by a union at all.”

A spokesman for the National Pharmacy Association, said: “The NPA provides employment advice to independent pharmacy owners, but the question of union recognition does not generally arise, given the nature of our membership.”

BPA members keen for independence?

But what do pharmacists in the BPA think about all of this? The PDAU has being trying to find out and has so far come up with some interesting results. According to a report of the CAC’s January determination, a survey the PDAU commissioned of 128 pharmacists in the proposed Boots bargaining unit (108 were members of the PDA Union and 29 were members of the BPA) indicated that 95 per cent were in favour of the PDAU’s application for recognition, 5 per cent were not sure and none said they were against it. (One hundred per cent of PDAU members supported recognition of the union by Boots and 93 per cent of the BPA members supported recognition.)

Although this was a small sample, and should be treated with caution, it does give an indication of the feeling that there is support for union recognition, even within the BPA ranks. And considering the tough competition for jobs at the moment, there could be a cohort of pharmacists who think the same but remain silent.

Separately, in May 2013, the BPA balloted its members about whether it should go forward and represent them on pay. “The vast majority wanted the BPA to pursue negotiations on terms and conditions,” says Peter Walker, the BPA’s chief executive officer, although he was “perplexed” that only 217 responded (10 per cent of BPA members). Why the low numbers? “Perhaps it was not a burning issue,” he suggests.

Another element in the ongoing dispute is that the BPA, which has some 2,000-odd members, tried last year to obtain a certificate of independence. It failed, being considered liable to interference from Boots (see Panel 1).

Panel 1: Controversial history

Back in January 2012, the PDA Union asked Boots to recognise it as a trade union for collective bargaining rights for pharmacists and preregistration trainees, but Boots declined. So the PDAU began an application process in February 2012 to the Central Arbitration Committee, which rules on union recognition, but Boots asked it to stay its application for talks to take place, which the PDAU agreed to.

Two months later the PDAU was in for a shock. It found out that Boots had signed a “partnership agreement” with its preferred trade union, the Boots Pharmacists Association. The CAC did not mince its words on describing the controversial events, saying: “The employer [Boots] had no intention of recognising the [PDA] union and used the time to prepare an agreement with the BPA… . We agreed with Mr Murphy’s analysis that the employer had been disingenuous as the employer had deliberately misled the union in order to buy time to conclude arrangements with the BPA recorded in the agreement.”

Peter Walker, BPA chief executive, told The Journal:” [Our agreement with Boots in March 2012] was only controversial because the CAC had deemed it controversial. But it was not controversial because we have been working behind the scenes with Boots since our last agreement in 2007.”

Come October 2012, and both parties made more moves. The PDA Union resubmitted its application process with the Central Arbitration Committee for statutory recognition for collective bargaining rights, while the BPA made an application to receive a “certificate of independence” as a trade union from the Certification Officer, a body that maintains a list of trade unions.

Come 2013 and the big decisions started to roll in. In January, the CAC ruled that the PDA Union’s application was admissible, which formed the basis on which Boots launched its judicial review in October. While the BPA’s application to show it was an independent union was rejected, on the grounds that it was “liable to interference” from Boots.

Mr Walker says that the BPA plans to reapply for a certificate of independence in the future.

A spokeswoman for the Trades Union Congress, a lobby group for 54 unions which represents almost six million workers in Britain, told The Journal: “An independent trade union is one which is registered with the government-appointed Certification Officer and which is funded by the subscriptions of its members. Other organisations may call themselves unions but these so-called sweetheart unions are not independent bodies, because their relationship is too close to the employer, who often funds them.”

So is the BPA a sweetheart union? Mr Walker said: “We are not close to the company [Boots]. We bring issues to the attention of the company and we are successful in that… . We are not liable to interference from Boots. We are strong with big issues, for example, changes to the pension scheme and supportive of individual members where a problem arises with a local manager, for example grievances or disciplinary hearings.”

But the Certification Officer, when it declined to give the BPA a stamp of independence, highlighted the many ties that the BPA has with Boots. Boots provides the chief executive with a laptop, he has access to its intranet, he has a Boots email address, the Boots IT department assists it in its database, and Boots provides free use of it premises for BPA meetings. There is more but, crucially, the BPA has never organised any industrial action, limiting itself inter alia to continuing professional development, company cars, staff discount cards, professional indemnity insurance and lunchtime working policy.

A final solution seems a long way off on whether the PDA will win collective bargaining rights for Boots pharmacists. But collective bargaining for healthcare professionals is not something new, considering the significant number of other professionals with independent trade unions. As pharmacists increasingly move away from being employers to employees, it can only be expected that union recognition will be favoured over time.

Panel 2: Do pharmacists need an independent union?

Following the judicial review decision, Lindsey Gilpin, a locum pharmacist who sat on the PDA Union executive board last year, told The Journal: “It is very important for people to have the opportunity of union representation. In fact, someone needs to stick up for individual pharmacists, those without power, otherwise multiples will have their own way, with their main aim to increase profits. It is a matter of protection.

“You get the best out of people if you treat them reasonably and with respect. Sometimes multiples can lose their way, sometimes you see bullying and sometimes you see area managers who do not understand the professional needs of pharmacists.”

Graham Phillips, superintendent pharmacist and director of the Manor Pharmacy Group, making up nine pharmacies in Wheathampstead, told The Journal: “I am not anti-union. I want to see pharmacists empowered. As professionals, we have been disempowered because of over-regulation and not enough support. I think that is the root cause. It is more complex than it is ‘big bad’ multiple versus the poor individual pharmacist. The bigger debate is about how the pharmacy contract works. It is not as easy as blaming the employer.”

 

Citation: The Pharmaceutical Journal DOI: 10.1211/PJ.2014.11133575

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