In Bernard v Canada (Attorney General), 2014 SCC 13, the Supreme Court of Canada confirmed that employee privacy rights do not override a union’s right to receive the information that it requires to fulfill its representational duties. Accordingly, employers may be required to disclose information that will allow a certified union to contact members of its bargaining unit at home, and failure to do so may constitute an unfair labour practice.
Elizabeth Bernard was a federal public servant employed with the Canada Revenue Agency who took issue with the disclosure of her home contact information to the Professional Institute of Public Service of Canada (“PIPSC”). Ms. Bernard was a “Rand Formula employee,” meaning that while she was not a member of PIPSC, she was required to pay union dues. As a Rand Formula Employee, she was entitled to receive the benefits provided to employees under a collective agreement negotiated by PIPSC.
Ms. Bernard argued that the disclosure of her personal information, without consent, violated the Privacy Act, R.S.C. 1985, c P-21 (the “Privacy Act”). She also claimed that the order breached her rights under the Canadian Charter of Rights and Freedoms (the “Charter”), including her right not to associate with the union and her right to be free from unreasonable search and seizure.
The employer’s failure to provide the union “with at least some of the employee contact information that it requested” was an unfair labour practice because it interfered with the union’s ability to represent employees in the bargaining unit.
Under the Public Service Labour Relations Act, S.C. 2003 c.22 (the “PSLR”), unions have significant representational duties to all employees in the bargaining unit. These include the obligation to provide all employees with a reasonable opportunity to participate in strike votes and to be notified of results. While an employee is free to opt out of joining a union, he or she is not free to opt out of the exclusive bargaining relationship or waive his or her right to be represented by the union.
According to the Supreme Court of Canada, workplace communication systems are sometimes insufficient for unions as they carry out their representational duties. For example, confidentiality cannot be assured when using an employee’s workplace contact information, and it is sometimes necessary for a union to communicate with members of the bargaining unit in confidence.
On the issue of whether the employer’s disclosure of information to the union would be a violation of the Privacy Act, the Supreme Court found that the “consistent use” exception applied. Under section 8(2) of the Privacy Act, personal information in the control of a government institution may be disclosed for the purpose for which the information was obtained or for a use consistent with that purpose. The union’s proposed use, to carry out its representational obligations quickly and effectively, was consistent with that purpose. There was therefore no violation of the Privacy Act.
The Supreme Court found that neither Ms. Bernard’s right to freedom of association nor her right to freedom from unreasonable search and seizure had been violated. The payment of dues by “Rand Formula employees” does not amount to unjustified compelled association under s. 2(d), and the disclosure of limited personal information did not constitute an unreasonable search and seizure.
This case was decided under the federal Public Service Labour Relations Act and federal privacy legislation. Nevertheless, the Supreme Court’s decision has implications for labour relations in all jurisdictions. Generally speaking, unions are entitled to information that will allow it to effectively represent the employees in the bargaining unit. According to the Supreme Court of Canada, this may require employers to disclose information that will allow a certified union to contact members of its bargaining unit at home. This decision also suggests that employers should encrypt electronic documents used to distribute this contact information, and that expired home contact information be disposed of after updated information is provided.
In balancing privacy interests with the union’s right to disclosure of personal information, employers should be aware that legal disclosure obligations will often override privacy policies. For example, under the Privacy Act, personal information may have to be disclosed for the purpose of complying with rules of court relating to the production of information.
Many thanks to Bonnie Tsui for her assistance in drafting this blog.