Labour and Employment Law Blog

Elizabeth Bernard is an employee of the Canada Revenue Agency. She objected to the disclosure of her home contact details by her employer as requested by the union. Ms. Bernard took the position that disclosure of her home contact details breached her privacy rights and her Charter right not to associate with the union (she is not a member of the union, but is represented by the union in the collective bargaining context). The Public Service Labour Relations Board concluded that only being able to contact employees through their workplace did not allow the union to represent employees effectively. It also found that the disclosure of home contact details was consistent with the purpose for which the information had been obtained under section 8(2)(a) of the Privacy Act, which is one of the exceptions to the ban of disclosure of government held information. The Board declined jurisdiction to consider the Charter arguments.

On judicial review, the Federal Court of Appeal upheld the Board's conclusions. The matter was then appealed to the Supreme Court of Canada, which handed down its decision on February 7, 2014.

The Court agreed that the union needed to be able to communicate with all employees quickly and effectively and the employer should co-operate with the union. The union also needs to be able to contact employees who are on leave, or who are not at work because of a labour dispute. It held that it is not appropriate for the union to be limited to the use of communication channels controlled by the employer.

In considering the "consistent use" exception described above, the Court held that the information collected by the employer was for the appropriate administration of the employment relationship. This purpose is consistent with the union’s intended use of the contact information.

The majority of the Court also held that the Board was correct to limit its mandate to the alleged infringement of the Privacy Act and not to consider the Charter arguments.

Implications for Employers

Employers whose employees are represented by a union are under a duty to provide the union with the contact details for all employees in order that the agent can fulfill its statutory obligations to communicate quickly and effectively with the employees.

This rule applies to all employees within the bargaining unit. The union is entitled to communicate with its constituent members by means other than those controlled by the employer.

In British Columbia, the Labour Relations Board has addressed this issue and considered analogous privacy rights affecting provincially regulated employers under the Personal Information and Protection Act ("PIPA") and the Freedom of Information and Protection of Privacy Act ("FOIPPA") and has arrived at conclusions similar to those of the Court in this case.

The rule in BC is that unions may collect and employers may disclose personal information about an individual without that individual's consent if "the disclosure is required or authorized by law."

The BC Labour Relations Board has stated that unions have a statutory duty to communicate with the employees they represent. Accordingly, employers may not refuse to disclose information to a union in circumstances without valid reasons. The Board has authorized release of names, addresses, and even wage rates and benefits to unions to enable them to prepare for collective bargaining.

The latest decision from the Supreme Court of Canada is consistent with the approach in BC where the Board has stated that refusal by an employer to disclose such information may constitute violations of Section 6(1) of the BC Labour Relations Code.