When a union’s representational rights and an employee’s privacy rights collide

The Supreme Court of Canada recently issued a decision confirming that there are limits on an employee’s right to privacy vis-à-vis his or her union.

In Bernard v. Canada (Attorney General), the Court held that a union was entitled to the home contact information of the employees it represented, and that individual employees did not have the right to opt-out of having their information shared with the union.

Elizabeth Bernard was a member of a bargaining unit in the federal public service, but was not a member of the union that represented her. Ms Bernard strongly objected to her employer providing the union with her home contact information. Ms Bernard challenged the union’s right to obtain that information all the way up to the Supreme Court of Canada.

The Supreme Court of Canada dismissed Ms Bernard’s appeal, and provided the following general commentary on the relationship between employers, employees and unions, and the impact of that relationship on employees’ privacy rights:

  • A union has the exclusive right to bargain on behalf of all employees in a given bargaining unit. While an employee is undoubtedly free not to join the union, he or she may not opt out of the exclusive bargaining relationship, nor the representational duties that a union owes to employees.
  • The Court endorsed two basic rationales as to why it was an unfair labour practice for the employer to refuse to provide the union with employee home contact information.
    • A union needs an effective means of contacting employees in order to discharge its representational duties.
    • There is a special, tripartite relationship between the employee, the employer and the union, which means that the disclosure of the information to the union is not like disclosure of the information to the public.
  • Although section 2(d) of the Charter protects freedom from association as well as freedom of association, it does not provide protection from all forms of involuntary association. The compelled disclosure of an employee’s home contact information by an employer to a union is not a violation of that employee’s Charter rights.

There are some aspects of the Court’s analysis in Bernard that are very fact-specific. For example, the Court was interpreting specialized legislation that only applies to the federal public service (i.e. the Public Service Labour Relations Act and the Privacy Act). However, the Court did appear to endorse the decision of the Ontario Labour Relations Board in The Millcroft Inn Limited, the leading case on the issue in Ontario that also confirms the right of a union to obtain information from the employer about employees in the bargaining unit.

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Filed under Collective Bargaining, Duty of Fair Representation, Labour, Privacy

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