Stewart McKelvey

Vol 4 Issue 2 Summer 2014

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2 SUMMER 2014 Doing Business in AtlAntic cAnADA T he Public Service Labour Relations Board ("the Board") concluded that an employer was required to provide home contact information about bar- gaining unit members to the union which represents them because this information is needed by the union in order to carry out its representational duties. At the same time, however, the union must ensure that the information is kept se- cure and is used only for representational purposes. The main issue in this appeal is whether that decision was reasonable. We conclude that it was. Bernard v. Canada (Attorney General), 2014 SCC 13, at paras 1, 37 – 40. bACKgROUnd > Ms. Bernard is a member of a federal public service bargaining unit. She does not belong to the union with exclusive bargaining rights for her unit. Although not a union member, she is entitled to col- lective agreement benefi ts, representation by the union and is required to pay dues. The union is the exclu- sive bargaining agent for all members of the unit with usual representational duties. While Ms. Bernard has a right not to become a union member, she does not have the right to opt out of the union's role as exclusive bargaining agent for all unit employees. In 2005, the Public Service Labour Relations Act expanded the union's representational obligations. As a result, the union sought home contact information for unit members from the employer. The employer re- fused and the union alleged that this refusal was an unfair labour practice. THE bOARd dECisiOn > The Board agreed that there was an unfair labour practice by the employer as it was interfering with the union's representation of its em- ployees by not providing the union "with at least some of the requested employee contact information". As a remedy, the Board directed the parties to con- sult and determine whether they could agree on disclo- sure terms. If they could not agree, the Board would hold a further hearing to address the remedy issue. The parties did reach agreement and the Board incorpor- ated that agreement into a consent order requiring the employer to disclose to the union, on a quarterly basis, home mailing addresses and home telephone numbers of members of the unit, subject to security and privacy conditions. An email was sent to all unit members, in- cluding Ms. Bernard sought judicial review at the Fed- eral Court of Appeal ("FCA"). FCA #1 > The FCA #1 said that the Board should have considered whether the Personal Information Protection and Electronic Documents Act ("PI- PEDA") applied instead of simply adopting the party's agreement. It sent the matter back to the Board for redetermination. THE bOARd REdETERminATiOn HEARing > At the redetermination hearing, Ms. Bernard argued that dis- closure of her telephone number and address breached both her privacy rights and her Canadian Charter of Rights and Freedoms ("Charter") right not to asso- ciate with the union. The Board said that workplace contact information alone was not suffi cient to allow a bargaining agent to meet its representation obligations for all employees in the unit and that a bargaining agent had a right to contact all employees directly. It also said there was no breach of the PIPEDA because disclosure was consistent with the purpose for which the information was obtained and a "consistent use" of the information under the PIPEDA. The Board put two additional safeguards in place: • The information was to be provided to the union only on an encrypted or password-protected basis. • Expired home contact information was to be appropriately disposed of after updated information was provided. Ms. Bernard sought judicial review again. COnsisTEnT UsE: THE COllECTiOn OF UniOn mEmbERs' pERsOnAl inFORmATiOn by THEiR UniOns By Alison Strachan and Jonah Clements

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