Skip to content

Client Update: Consistent Use: The Collection of Union Members’ Personal Information by their Unions

The Public Service Labour Relations Board concluded that an employer was required to provide home contact information about bargaining unit members to the union which represents them because this information is needed by the union in order to carry out its representational duties. At the same time, however, the union must ensure that the information is kept secure and is used only for representational purposes. The main issue in this appeal is whether that decision was reasonable. We conclude that it was.

Bernard v. Canada (Attorney General), 2014 SCC 13, per Justices Abella and Cromwell at paras 1, 37 – 40

Background

Ms. Bernard is a “Rand Formula employee” – a member of a federal public service bargaining unit, but does not belong to the union which has exclusive bargaining rights for her bargaining unit. Although she is not a union member, she is entitled to the benefits of the collective agreement, representation by the union and is required to pay union dues. The union is the exclusive bargaining agent for all members of the bargaining unit and has representational duties – such as collective bargaining, the grievance process, workforce adjustments, prosecuting complaints, and conducting strike votes. Those duties are owed to all bargaining unit members, whether or not they are members of the union. While Ms. Bernard has a right not to become a union member, she does not have the right to opt out of the union’s role as exclusive bargaining agent for all bargaining unit employees.

In 2005, the Public Service Labour Relations Act expanded the union’s representational obligations. As a result, Ms. Bernard’s union sought home contact information for bargaining unit members from the employer. The employer refused and the union alleged that this refusal was an unfair labour practice. The Board agreed that there was an unfair labour practice because by not providing the union “with at least some of the employee contact information that it requested,” it was interfering with the union’s representation of its employees.

On the remedy issue, the Board directed the parties to consult in order to determine whether they could agree on disclosure terms, failing which the Board would hold a further hearing to address the issue of remedy. The parties reached an agreement that the Board subsequently incorporated into a consent order that required the employer to disclose to the union a quarterly listing of home mailing addresses and home telephone numbers of members of the unit, subject to security and privacy conditions. An email was sent to all unit members, including Ms. Bernard. She responded by seeking a judicial review at the Federal Court of Appeal.

Federal Court of Appeal #1

The Federal Court of Appeal said that the Board should have considered whether the Privacy Act applied instead of simply adopting the agreement between the parties. It sent the matter back to the Board for redetermination.

Board Redetermination Hearing

At the redetermination hearing, Ms. Bernard argued that disclosure of her home telephone number and address breached both her privacy rights and her Charter right not to associate with the union. The Board said that workplace contact information alone was insufficient to allow a bargaining agent to meet its obligations to represent all employees in the bargaining unit and that a bargaining agent had a right to contact all employees directly. It also said there was no breach of the Privacy Actbecause the disclosure was consistent with the purpose for which the information was obtained and a “consistent use” of the information under the Privacy Act. The Board put two additional safeguards in place:

  • The information was to be provided to the union only on an encrypted or password-protected basis.
  • Expired home contact information was to be appropriately disposed of after updated information was provided.

Ms. Bernard sought judicial review. Again.

Federal Court of Appeal #2

The Federal Court of Appeal concluded that the Board’s decision, that the union needed home contact information in order to fulfill its representational duties, was reasonable and its use of the home contact information was a “consistent use” under the Privacy Act. Ms. Bernard successfully sought leave to appeal to the Supreme Court of Canada.

The Supreme Court of Canada

In a 5:2 decision, the Court found the Board’s decision reasonable (as noted at the beginning of this update). How did it get to that point? Not without first reviewing previous labour board cases discussing the extent of information a union is entitled to discharge its representational duties. Quoting from a key Ontario Labour Relations Board decision in Millcroft Inn Ltd. and CAW-Canada, Local 448 (“Millcroft“), the Court said:

A consequence of the union possessing exclusive bargaining status on behalf of the employees is that the union is placed in an equal bargaining position with the employer in its collective bargaining relationship. To the extent that the employer has information which is of value to the union in its capacity to represent the employees (such as their names, addresses and telephone numbers), the union too should have that information. The employees’ privacy rights are compromised (no doubt legitimately) by the employer having details of their names, addresses and telephone numbers. The union’s acquisition of that information would be no greater compromise, nor any less legitimate. [para. 31]

The Court said that the Millcroft conclusions are justified because of the union’s need to communicate with employees, and the fact that the union is not always able to make that contact at work (e.g., employees are on leave or there is a labour dispute). Further, the Court said, disclosure ensures that the union is on equal footing with the employer with respect to information relevant to the collective bargaining relationship. The Court went on to say:

Moreover, an employee cannot waive his or her right to be fairly – and exclusively – represented by the union. Given that the union owes legal obligations to all employees – whether or not they are Rand employees – and may have to communicate with them quickly, the union should not be deprived of information in the hands of the employer that could assist in fulfilling these obligations.

What does this mean for employers?

Labour Relations Boards across the country have generally been quick to reject privacy based objections to the disclosure of personal information to unions. For example, in the leading case, Millcroft, the Ontario Labour Relations Board reasoned that employees who have chosen to bargain collectively with their employer through the union have made an election and are bound by its consequences, namely that the union speaks on their behalf and, thus, their individual privacy rights have been partially superseded. Nonetheless, from time to time there have been challenges such as Ms. Bernard’s. The Supreme Court of Canada has confirmed the Millcroft approach to cases of this nature so long as a “consistent use” is identified.

As a general rule, employers who provide personal information to the union should only provide the data in a format that is encoded, always advise employees when the information has been requested by the union including when it will be disclosed and why, provide home contact information in a password protected or encrypted format and inform all new hires that home contact information will be shared with the bargaining agent.

Postscript

The Court also summarily commented on some Charter rights issues Ms. Bernard raised. Those comments are shared as follows.

Section 2(d) – Freedom of Association
Mrs. Bernard argued that requiring an employer to provide the bargaining agent with the home address and home phone number of employees breached her right to “freedom of association” under section 2(d) of the Charter and that the Board should have considered this. The Court said this argument had “no legal foundation” because section 2(d) “is not a constitutional right to isolation”:

…in our view, the compelled disclosure of home contact information in order to allow a union to carry out its representational obligations to all bargaining unit members does not engage Ms. Bernard’s freedom not to associate with the union… 

In Lavigne, the Court concluded that the payment by Rand Formula employees of union dues for the purposes of collective bargaining did not amount to unjustified ‘compelled association’ under s. 2(3). Even though s. 2(d) protected freedom from association as well as freedom of association, the majority concluded that s. 2(d) 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. In other words, s. 2(d) is not a constitutional right to isolation…While in Advance Cutting & Coring three different approaches to the right not to associate emerged, on none of them would Ms. Bernard have a plausible s. 2(d) claim.

Section 8 – Unconstitutional Search and Seizure
The Court rejected this argument noting that context is important saying:

…As the Attorney General of Canada correctly points out, in this context there can be no reasonable expectation of privacy in that information.

The foregoing is intended for general information only. If you have any questions, or for a detailed list and background of our Labour & Employment practice group, please visit www.stewartmckelvey.com.

SHARE

Archive

Search Archive


 
 

Client Update: December 2 deadline for responses on changes to PEI Auto Insurance

November 25, 2013

We previously circulated a client update regarding contemplated changes to automobile insurance in Prince Edward Island. Government has now published a consultation paper (www.gov.pe.ca/photos/original/eljautoinreform.pdf), seeking responses in writing on or before December 2, 2013. According to the consultation…

Read More

Caribbean Corporate Counsel – Winter 2013

November 19, 2013

The Association of Caribbean Corporate Counsel (ACCC) released the inaugural edition of its quarterly journal, Caribbean Corporate Counsel, featuring CEO, John Rogers, Q.C., advisor on the International Advisory Board, and an article by partner Paul Smith, entitled “Governance…

Read More

Atlantic Employers’ Counsel – Fall 2013

November 19, 2013

CHANGES, CHANGES AND MORE CHANGES: KEEPING UP WITH THE TEMPORARY FOREIGN WORKER PROGRAM These days, Canada’s Temporary Foreign Worker Program (“TFWP”) is more top of mind than ever for Canadian employers. This is in part…

Read More

Client Update: Time’s Ticking: Not-for-Profit Corporations

October 17, 2013

By October 17, 2014 existing not-for-profit corporations incorporated under Part II of the Canada Corporations Act (the “Old Act”) are required to be continued under the new Canada Not-for-Profit Corporations Act (the “New Act”) or face the possibility of automatic administrative…

Read More

Doing Business in Atlantic Canada (Fall 2013)(Canadian Lawyer magazine supplement)

October 9, 2013

IN THIS ISSUE: Reasonable Cause: A necessary prerequisite for random alcohol testing policies by Mark Tector, Steve Carpenter, CHRP, Melissa Everett Withers, Ruth Trask Business Succession: Why is it critical? by Richard Niedermayer, TEP Privacy Please: Nova Scotia brings in new…

Read More

Client Update: Nova Scotia Amends Foreign Worker Rules to Exempt Some Recruiters and Employers From Licensing and Registration Requirements

September 18, 2013

On May 19, 2011, Nova Scotia’s Labour Standards Code was amended to protect foreign workers from exploitation by recruiters and employers. These amendments imposed a requirement for third-party recruiters to obtain a license from the Province to…

Read More

Client Update: Summary of Pender vs. Squires, 2013 NLCA 37

September 10, 2013

Facts This appeal arose from a decision which held that the Dominion of Canada General Insurance Company (“Dominion”) has a duty to defend Larry and Lona Hannam and their teenage son Jordan in an action…

Read More

Atlantic Employers’ Counsel – Summer 2013

August 8, 2013

DUE DILIGENCE Generally, occupational health and safety legislation in Atlantic Canada, like other jurisdictions, requires employers to take reasonable precautions to ensure the health and safety of workers in their workplace. Read More INCIDENT RESPONSE…

Read More

Client Update: Cyber-safety Act comes into effect for Nova Scotia

August 8, 2013

The Cyber-safety Act (“the Act”), excepting Part V (that part amending the Safer Communities and Neighbourhoods Act), was proclaimed August 6, 2013 and is now in effect. As discussed in our May 17, 2013 Client Update and our HRLaw blog The business case…

Read More

Client Update: The “historic trade-off” prevails

August 7, 2013

The Supreme Court of Canada has now released the much anticipated decision in the case of Marine Services International Ltd. v Ryan Estate, 2013 SCC 44. In doing so, the high court has signaled, at least…

Read More

Search Archive


Scroll To Top