A few days ago, the Supreme Court of Canada handed down a decision confirming a union’s right to personal contact information about the people it represents, in Bernard v. AG of Canada and PIPSC
Under federal legislation, Elizabeth Bernard was able to opt out of membership in the union representing her government service bargaining unit, but she retained the obligation to pay union dues. She was what is called a “Rand formula” employee – union membership is optional, but the union has a duty to represent all the workers, and has the right to collect their dues in return. This is an unusual form of employee status outside the federal public service.
Bernard complained that her employer, the Federal Government, should not provide her home contact information to the union because she was not a member. She argued that by disclosing her home contact information, the employer violated her privacy as she did not consent to the disclosure. She further argued that the disclosure amounted to forced association with the union contrary to s.2(d) of the Charter of Rights and Freedoms – Freedom of Association. This was an attempt to use section 2(d) not to support union representation, but to undermine it.
The Supreme Court of Canada disagreed with her. First, her statutory privacy rights were not violated because the disclosure was consistent with the purpose for which the information was initially collected by the employer: for the purpose of being contacted about terms and conditions of employment. The disclosure did not violate section 8 of the Charter, which prohibits unreasonable search and seizure. To me most importantly, the Court ruled that the provision of the information did not engage her s.2(d) of the Charter associational rights.
The court confirmed that “a cornerstone of labour relations law in this country” is the principle of majoritarian exclusivity: the union has the exclusive right and obligation to bargain on behalf of all employees in a given bargaining unit, including Rand employees, and is entitled to the tools it needs to perform that role . It went on to rule that, “the compelled disclosure of home contact information in order to allow a union to carry out is representational obligations to all bargaining unit members does not engage Ms. Bernard’s freedom not to associate with the union.” (para 37) The judgment confirmed that section 2(d) “is not a constitutional right to isolation.” (para 38)
This decision resonates with the ruling by the BC Labour Relations Board that an employer is bound by law to provide the union with the email addresses of employees working within the bargaining unit.