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Industrial relations update

22 February 2017

Our summary of recent “collective” employment law developments includes the latest on the Government’s industrial action reforms, the Court of Appeal’s ruling in the Boots case concerning a “sweetheart” recognition agreement and a decision of the Central Arbitration Committee (“CAC”) upholding an information request by the trade union Unite.

Industrial action reforms in force soon

The Government has now published regulations to bring into effect the industrial action provisions of the Trade Union Act 2016 with effect from 1 March 2017. These include the requirement for industrial action by persons in “important public services” to be supported by at least 40% of those entitled to vote and the requirement (applying to all industrial action ballots) for a minimum 50% turnout.

Trade union “sweetheart” agreements – Court of Appeal ruling

In the latest stage in battle between Boots the Chemist and the Pharmacists’ Defence Association Union (“PDAU”), the Court of Appeal has decided that voluntary “sweetheart” recognition agreements may be effective to block an application from a rival trade union for statutory recognition.

The PDAU had sought a declaration that the UK’s framework for unions to obtain statutory recognition, through an application to the CAC, breached its and its members’ rights to collective bargaining. It claimed that the prohibition on the CAC hearing an application from the PDAU because Boots already recognised another trade union breached its and its members’ rights to collective bargaining, deriving from a recent judgment of the European Court of Human Rights.

The Court of Appeal dismissed the PDAU’s claim. It held that a statutory framework for recognition could in principle breach workers’ human rights, but the UK’s statutory framework did not in fact breach them. This was because workers do not enjoy a universal right for their union to be recognised in all circumstances, and it was “self-evident” that recognition rights must be defined by “rules which identify which unions should be recognised by which employers in respect of which workers and for what purposes”. The Court concluded that the UK’s framework strikes a fair balance between the competing interests of “workers, employers and competing trade unions”.

The Court also stated that the PDAU’s specific concern about “sweetheart” deals was adequately addressed by both the inability of a non-independent trade union to prevent statutory recognition and the statutory derecognition procedures. These allow workers who would prefer to be represented by another union to achieve that outcome, provided that their preferred union actually has sufficient support among the workforce. The upshot of the judgment, therefore, is that “sweetheart” deals may be effective but might nonetheless deliver only a “short-term victory” in preventing recognition of a union that enjoys genuine and widespread support.

Unite information request upheld

The CAC has ruled that employees are entitled to significant information about the working location of their fellow employees, in order to help them to obtain sufficient support to request the establishment of a European Works Council (“EWC”).

Facilicom, a Dutch facilities services provider, had responded to a request for information from Unite by confirming that it fell within the scope of the EWC Directive. It refused to provide precise details about where its employees worked and argued that it was not required to provide such information once it had made that concession.

Unite argued successfully at the CAC that Facilicom’s confirmation was insufficient for it fully to have complied with its obligations. The CAC said that employees and their unions were entitled to be provided with information about where other employees are employed. This was because, if employees and their unions had no way to collect evidence of sufficient support for a European Works Council, they could not meaningfully exercise their rights under the EWC Directive.

This decision is not surprising, given previous judgments of the European Court of Justice, but it is apparent that neither the CAC nor the parties were aware of the CAC’s previous decision on the same issue in 2004. While the CAC reached the same conclusion in both cases, the failure of anyone involved in the complaint to refer to the previous ruling does highlight the importance of obtaining advice from experts in this field. 

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