Privacy Law and a Union's Entitlement to Information

By Sharan K. Basran & Elichai Shaffir

Over the past few decades, Unions have encountered numerous arguments from employers rooted in privacy law. Most often, this has occurred following a Union's request for particular information, such as its members' names, phone numbers and addresses in order to discharge its duties as the exclusive bargaining agent under a collective agreement. A current example, albeit one with a twist, is seen in Arbitrator Swan's recently released decision in Ontario Power Generation Inc. and The Society of Energy Professionals, unreported, November 23, 2007 ("OPG"), which involved an interpretation of the Personal Information Protection and Electronic Documents Act (PIPEDA).

At issue in this case was Article 10(d) of the Collective Agreement which stipulated that Management was to provide to the Society, on a regular basis, a list of all applicants to specified Society-represented positions, whether they were presently represented by the Society or not (and whether employed by the Company or not). In that sense, whereas previous cases have tended to focus on examples where the personal information to be disclosed to the union is that of members of the bargaining unit represented by the union, the present case differed in that its focus was on the Employer's unwillingness to provide relevant information for applicants to positions who were not members of any bargaining unit represented by the Society.

In argument, the Society took the position that the information was necessary for the purpose of monitoring compliance with the Collective Agreement provisions dealing with the filling of vacancies for positions within the bargaining unit. The Company took the position that while it had no issue with providing the Society with the names of those Society-represented employees who applied for Society-represented positions, with respect to those persons not represented by the Society, it was unsure of what effect, if any, the federal PIPEDA would have on its ability to provide the names of applicants who were not represented by the Society. The Arbitrator, therefore, had to determine whether PIPEDA restricted the Company from complying with Article 10.3(d) of the Collective Agreement, i.e. whether PIPEDA restricted the Company from disclosing the name of non-Society applicants to Society-represented jobs.

Before addressing the Arbitrator's decision in this matter, a quick word on PIPEDA is in order. That legislation sets out rules and procedures governing the collection, use and disclosure of personal information by organizations in various contexts. It applies to personal information of employees in the federally regulated private sector (airlines, banks, telecommunications, broadcasting, interprovincial transportation, etc.), and to every organization that collects, uses or discloses personal information in the course of commercial activities within a province, whether or not the organization is federally regulated (more on this below). In OPG, there was no dispute between the parties that the federal privacy legislation applied to the federally regulated nuclear component of the Company's operations.

Returning to Arbitrator Swan's decision in OPG, he noted that the Employer's application form included a notice that information collected would be used for evaluating applications and making selections. He found, therefore, that an applicant consented to disclosure of their identity to those involved in the administration of the posting and selection process. Moreover, he concluded that: "the process of "evaluating applications and making selections" is not only what is done within the internal structures of the Employer; it also includes the reasonable oversight of the Society to ensure compliance with the collective agreement. The information which the Society says it requires for that purpose is simply the identity of the applicants, and I am unable to find that information at that level is an excessive intrusion into personal privacy, nor a use or disclosure that reasonable people would find inappropriate." PIPEDA, therefore, did not restrict the Company from disclosing the names of non-Society applicants to Society-represented jobs.

Implications and Conclusion

As previously noted, trade unions have long been recognized in labour law as being legally entitled to wide varieties of information relevant to collective bargaining and collective agreements, without the need for express individual consent from each employee. Such information is seen as being necessary for the union to discharge its legal duties in the administration of the collective agreement.

That being said, the context of those decisions has centred around a union's request to certain information (such as wage and contact information) for their members. Arbitrator Swan's decision in OPG illustrates that the above-noted principle is not necessarily limited to information pertaining to bargaining unit members. In other words, a union is entitled to all relevant information that is not overly private and that the union requires in order to discharge its duties under a collective agreement and labour law. It should be noted though that in OPG an article within the Collective Agreement directly addressed the Union's entitlement to this information subject to PIPEDA.

A final and brief note about PIPEDA. As explained above there was no dispute between the parties in OPG that PIPEDA was applicable legislation in their matter. However, in most instances involving a union not involved in the federal private sector, PIPEDA would likely not be applicable legislation. Even though PIPEDA's reach extends beyond the federal private sector and is applicable in Ontario, it applies only to the collection, use and disclosure of personal information by organizations in the course of commercial activity. Commercial activity is defined in the Act to mean: "any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists". None of those activities aptly describe the normal course of business between a union and employer. As one arbitrator has noted: ""commercial activity" is not so wide-ranging that it encompasses the employment relationship itself and in particular the collection, use and disclosure of personal information within the organization."

Regardless of whether or not PIPEDA is applicable legislation in a particular matter, it should be recognized that analogous privacy interests might still be asserted by employers so as not to run afoul of privacy laws. Nevertheless, trade unions should continue to request from employers all relevant and necessary information in order to discharge its duties in the administration of the collective agreement.