On February 7, 2014 the Supreme Court released a decision
affecting an employer's obligation to provide personal employee
information to an incumbent union. The issue first arose before the
Public Service Labour Relations Board (PSLRB) in 2005 when an
employer refused to provide the union with home contact information
of bargaining unit members. The union alleged that the refusal
hindered their ability to provide proper representation and
constituted an unfair labour practice. The PSLRB determined that
the failure to provide some information was an unfair labour
practice. The parties entered into a consent order requiring the
employer to provide quarterly updates to employee home telephone
numbers and address. One employee (Bernard) subsequently filed for
judicial review of the consent order. Bernard sought review on the
basis of privacy concerns and a Charter argument – freedom of
Upon review, the Federal Court of Appeal returned the matter to
the PSLRB to consider the impact of the Privacy Act on the consent
order. Upon review the order remained the same but provided two
additional safeguards with regards to the storage and disposal of
the information. A further judicial review concluded the order was
reasonable and Bernard appealed to the Supreme Court.
The Supreme Court judicially reviewed the decision (Bernard v. Canada) on a standard of
reasonableness and ultimately found it to be reasonable. The
unanimous court (minority dissenting in part on the PSLRB's
failure to address Charter issues) focused on the principle of
exclusivity, as well as equality and representation requirements
within bargaining relationships.
The Supreme Court noted that a union has the exclusive right to
bargain on behalf of all employees in a bargaining unit and this
specifically includes Rand employees. Rand employees, while they
may opt out of joining a union, must pay union dues and are owed
representational duties by the union.
Representational requirements are set out in the Public Service
Labour Relations Act (PSLRA). The PSLRA requires a union to inform
employees of strike votes and the result of such votes, among other
things. It is these duties that led the Supreme Court to determine
that providing the home address and telephone numbers of employees
is reasonable. Contact through home can be achieved more quickly
and, and some employees (such as those on leave) cannot be
contacted at the workplace. Furthermore, the workplace is not an
appropriate venue to conduct union business. Posting information in
the workplace requires employer approval and electronic
communications lack an expectation of privacy. For these reasons
the Supreme Court found the provision of home contact information
to a union to be reasonable when coupled with privacy safeguards
related to the collection, use, storage and disposal of the
information. Withholding the home contact information hindered
representational duties and it was reasonable to declare the
employer's refusal an unfair labour practice.
The principle that an employer and union should have equal
access to information relevant to the collective bargaining
relationship further supported the requirement to provide home
Lastly, the Supreme Court reviewed the intersection of union
representation duties with the Federal Privacy Act. The Privacy Act
largely prevents the disclosure of government-held personal
information; however, there are a number of exceptions including
"consistent use". This exception allows disclosure for a
purpose which is consistent with the purpose for which the
information was originally obtained. The original purpose of
collecting home contact information was to communicate important
employment information. This purpose was deemed consistent with the
A majority of the Supreme Court dealt with the employee's
Charter argument rather swiftly. The Court concluded that release
of her home contact information did not engage her rights under
freedom of association. The Court cited Lavigne in stating that freedom of
association "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."
Employers can be placed in difficult circumstances when faced
with an ongoing union relationships / obligations, and privacy
rights of employees. The lawyers at CCP can help you navigate these
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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