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Legal Alert: SCC Says Union’s Duty to Represent Trumps Rand Members’ Privacy Rights
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February 7, 2014
On February 7, 2014 the Supreme Court of Canada decided employers may be required to give employees’ private home contact information to the union representing them – even when an employee objects.
Bernard is a “Rand Formula” employee of the federal government: a member of the bargaining unit but not a member of the union representing it. The union wanted the employer to provide the home contact information for all members – including Rand employees. Bernard objected, claiming doing so would breach her rights under both the federal Privacy Act and her rights to freedom of association and freedom from unreasonable search and seizure under the Charter of Rights and Freedoms. The SCC disagreed:
- Rand Formula Employees. An employee is free to opt out of union membership and become a Rand employee, but can’t opt out of the exclusive bargaining relationship and the union’s right – and duty – to fairly and exclusively represent all unit members, including the Rand employees.
- Work Contact Information Insufficient. The union owes legal obligations to all members – including Rand employees – of the bargaining unit it represents. To discharge them, it needs an effective way to contact employees, sometimes quickly – like in the case of a strike vote – and workplace contact information isn’t sufficient to do so. The SCC also agreed that “equality of information between the employer and the union” further justifies forcing employers to disclose home contact information to its employees’ union against their employees’ wishes.
- No Breach of Federal Privacy Act. The Privacy Act prohibits the disclosure of government-held information, but includes a “consistent use exception”: if there’s a sufficiently direct connection between the purpose of the information and its proposed use, then the employee would reasonably expect it to be used in this consistent manner – and disclosure is not prohibited. The union’s need and use of the employee contact information is consistent with the purpose for which the government employer collected it: “to contact employees about the terms and conditions of employment.”
- No Charter Infringement Either. The SCC decided Ms. Bernard’s Charter rights weren’t infringed. The majority said the Charter right to freedom of association doesn’t provide protection from all forms of involuntary association. Bernard’s home contact information was a necessary incident of the union’s representational obligations to her as a member of the bargaining unit. Two judges decided the mere provision of Bernard’s home contact information to the union isn’t “forced association” nor did it infringe upon her liberty; it also didn’t constitute an unlawful seizure under the Charter because she didn’t have a reasonable expectation of privacy in it.
The federal Privacy Act only applies to federal government bodies; the Charter only applies to “government” bodies and their actions. Both applied in this case because the employer is the Canada Revenue Agency. However, this decision will likely have broader impact:
- Privacy Legislation. “Public” employers in most Provinces and Territories – and “private” employers in some – are subject to some form of privacy legislation applicable to the private employee information they hold. In those cases, employers can expect Provincial boards and courts to take the same approach to applying privacy legislation to questions of employer disclosure of bargaining unit members’ private contact information to their union.
- No Privacy Legislation. In a number of Provinces, however, no privacy legislation applies to – or protects – the private employee information that “private” employers hold. In these cases, employees and employers can’t argue disclosure is a breach of privacy legislation – but Canadian privacy law is developing rapidly.
- Necessity. In either case, it seems an employee – or employer – could still argue the disclosure isn’t necessary in the particular case. One reason the SCC found home contact information necessary in this case is the bargaining unit’s size (43,000 members) and breadth (spread across Canada). It’s arguable whether it would be similarly necessary in a smaller workplace.
Click here to read the SCC’s decision in Bernard v. Canada 2014 SCC 13.
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Labour and Employment Team to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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