Employers must provide their trade unions with home contact information for bargaining unit employees, according to a recent ruling of the Supreme Court of Canada.
Bernard v. Canada (Attorney General), 2014 SCC 13 was the culmination of a saga started back in 1992, when a unionized employee objected to her employer, the federal government, giving her home address to her trade union. She was represented by the union, but was not a union member.
The Privacy Commissioner agreed that the employer should not have given her home address away without her consent. Although that advice was not binding, the government changed its practices and stopped providing unions with this kind of information.
In 2005, however, her union decided that it required employees’ home contact information, and filed a complaint against the government with the Public Service Labour Relations Board. The Board upheld the complaint and ruled that trade unions were entitled to employees’ home addresses and home telephone numbers. The information was subject to strict privacy rules: the union had to ensure that it was disclosed only to the specific union officials who needed it, that those officials kept it confidential, and that the information was used only for the purpose of representing employees.
In February 2014, the Supreme Court upheld the Board’s decision. The employer had objected to the decision based on employee privacy, but the Court reasoned that since the union has a responsibility to represent all employees, it needed to be able to get in touch with them.
Furthermore, the Court ruled, giving the union the employees’ work contact information was not good enough. Work telephone and e-mail services are controlled by the employer, and a union might need to contact employees while they are not at work. For example, a union may need to discuss issues related to an employee’s ongoing leave of absence, or to communicate with employees during a strike or lock-out.
The Court considered the privacy concerns raised by the employer, but found that the requirements of the federal Privacy Act had been met. The Privacy Act permitted the government to disclose personal information for a purpose “consistent” with the purpose for which the information was collected. One of the purposes of the government collecting its employees’ home contact information was to be able to communicate with them about terms and conditions of employment. Giving the same information to the union, so that it could represent them with respect to terms and conditions of employment, was consistent with that purpose.
Although the Board’s decision applied only to employers in the federal public sector, the Supreme Court’s reasoning is likely to apply much more broadly. Employers across Canada, in both the public and private sectors, should expect to have to disclose employees’ home contact information upon request from a trade union that represents them.
The decision does not, however, suggest that a union might be entitled to such information before it has been certified to represent employees, i.e., while it is still trying to organize them. The Supreme Court’s reasoning was that the union needs employee contact information to carry out its representational duties. Those duties do not arise until the union has been certified. In other words, it appears that a union is not entitled to employee contact information to help organize them, but once the employees are organized, it is entitled to the information it needs to properly represent them.
