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Supreme Court of Canada Requires Employer to Disclose Personal Employee Information to Union

On February 7, 2014 the Supreme Court released a decision affecting an employer’s obligation to provide personal employee information to an incumbent union. The issue first arose before the Public Service Labour Relations Board (PSLRB) in 2005 when an employer refused to provide the union with home contact information of bargaining unit members. The union alleged that the refusal hindered their ability to provide proper representation and constituted an unfair labour practice. The PSLRB determined that the failure to provide some information was an unfair labour practice. The parties entered into a consent order requiring the employer to provide quarterly updates to employee home telephone numbers and address. One employee (Bernard) subsequently filed for judicial review of the consent order. Bernard sought review on the basis of privacy concerns and a Charter argument – freedom of association.

Upon review, the Federal Court of Appeal returned the matter to the PSLRB to consider the impact of the Privacy Act on the consent order. Upon review the order remained the same but provided two additional safeguards with regards to the storage and disposal of the information. A further judicial review concluded the order was reasonable and Bernard appealed to the Supreme Court.

The Supreme Court judicially reviewed the decision (Bernard v. Canada) on a standard of reasonableness and ultimately found it to be reasonable. The unanimous court (minority dissenting in part on the PSLRB’s failure to address Charter issues) focused on the principle of exclusivity, as well as equality and representation requirements within bargaining relationships. 

The Supreme Court noted that a union has the exclusive right to bargain on behalf of all employees in a bargaining unit and this specifically includes Rand employees. Rand employees, while they may opt out of joining a union, must pay union dues and are owed representational duties by the union.

Representational requirements are set out in the Public Service Labour Relations Act (PSLRA). The PSLRA requires a union to inform employees of strike votes and the result of such votes, among other things. It is these duties that led the Supreme Court to determine that providing the home address and telephone numbers of employees is reasonable. Contact through home can be achieved more quickly and, and some employees (such as those on leave) cannot be contacted at the workplace. Furthermore, the workplace is not an appropriate venue to conduct union business. Posting information in the workplace requires employer approval and electronic communications lack an expectation of privacy. For these reasons the Supreme Court found the provision of home contact information to a union to be reasonable when coupled with privacy safeguards related to the collection, use, storage and disposal of the information. Withholding the home contact information hindered representational duties and it was reasonable to declare the employer’s refusal an unfair labour practice.

The principle that an employer and union should have equal access to information relevant to the collective bargaining relationship further supported the requirement to provide home contact information.

Lastly, the Supreme Court reviewed the intersection of union representation duties with the Federal Privacy Act. The Privacy Act largely prevents the disclosure of government-held personal information; however, there are a number of exceptions including “consistent use”. This exception allows disclosure for a purpose which is consistent with the purpose for which the information was originally obtained. The original purpose of collecting home contact information was to communicate important employment information. This purpose was deemed consistent with the union’s purpose.

A majority of the Supreme Court dealt with the employee’s Charter argument rather swiftly. The Court concluded that release of her home contact information did not engage her rights under freedom of association. The Court cited Lavigne in stating that freedom of association “does not provide protection from all forms of involuntary association, and was not intended to protect against association with others that is a necessary and inevitable part of membership in a modern democratic community.”

Employers can be placed in difficult circumstances when faced with an ongoing union relationships / obligations, and privacy rights of employees. The lawyers at CCP can help you navigate these challenging issues.