Unions would be allowed to disclose personal information during strike
Straddling the line between personal and public rights can prove an arduous balancing act — territory that Alberta’s government is navigating with the introduction of amendments to its information privacy laws.
The Personal Information Protection Amendment Act, known simply as Bill 3, was introduced on Nov. 17, and with it came a slew of amendments to the way unions are allowed to use an employee’s information.
Under the proposed legislation, a union would be permitted to collect, use and disclose personal information (such as photos or videos) without the individual’s consent in the event of a labour dispute or strike.
Prompted by a decision from the Supreme Court of Canada in November of 2013, the amendments to the Personal Information Protection Act (PIPA) came about after an incident back in 2006, in which the United Food and Commercial Workers (UFCW) union local 401 came under fire for photographing and videotaping so-called scabs crossing the picket line during a strike at the Palace Casino in the West Edmonton Mall.
The province’s privacy commissioner determined the union had violated PIPA but, in 2011, the UFCW launched a legal challenge that went all the way to the country’s top court.
Almost one year ago to the day, on Nov. 15, 2013, the Supreme Court of Canada determined PIPA, as it stood, violated the union’s constitutional right to freedom of expression — thereby forcing Alberta to make changes.
Not far enough: Unions
Unions have lauded the proposed amendments, but said they do not go far enough.
"It’s a small victory. It’s not without import. It’s a step in the right direction towards recognizing the importance (the) right of free expression has in society and an important step in the right direction toward recognizing the role of unions," said Tom Hesse, the local chapter’s senior director of labour relations and executive assistant to the president.
"The changes they’ve made are very narrowly circumscribed. It’s as though they only addressed the issue in the narrowest sense without really confronting the broader issue about how freedom of expression intersects with privacy rights and how these two interplay and how they ought to interplay."
But this is not carte blanche — there are limitations. Under Bill 3, a trade union is permitted to use personal information without the consent of the individual for the purpose of informing or persuading the public about a matter of significant public interest. The union would also have to take into account the nature and sensitivity of the information.
This would apply, for instance, if the union was hoping to sway the public not to purchase an employer’s products. Hesse cited as one example the XL Foods tainted-beef fiasco from 2012, where the UFCW felt lax management exacerbated the issue.
Privacy concerns
The provincial government put together the legislation after taking into account the Supreme Court’s requirements and consulting with Alberta’s privacy commissioner.
"Protection of privacy is a priority for this government. We are responsible for the changing information needs of society and will be consulting further on this legislation starting next summer as part of a scheduled renewal," said Stephen Khan, the department’s minister.
As of press time, the Bill had passed its second reading and the committee of the whole, and was slated to go to its third reading. The legislation will be vetted by stakeholders next summer, according to Service Alberta.
As it currently stands, the proposed legislation follows a rather broad approach — and the broader the language, the less individuals will be protected under privacy laws, said Brian Thiessen, a labour and employment lawyer at Blake, Cassels & Graydon LLP in Calgary.
"Unions should be as governed as corporations in how they protect and collect and disclose personal information of individuals," Thiessen explained.
"For those of us who act on the side of management, we do have some concerns that unions be regulated as strictly as businesses. We don’t think that they should be broadly exempt from the privacy legislation. Unions, like corporations, are made up of individuals, and individuals make mistakes."
But privacy laws should serve as a platform for philosophical conversations — a confab that can be ignited by labour disputes, said Hesse.
"It should be an enshrined right, certainly, to recognize the role of unions as political organizations that have much to say about inequities and unfairness in society. Labour nowadays is one of the meaningful dissenting voices in society," he said, adding that being publicly accountable during a strike will force people to deeply consider the issues.
"What I hope (this) will do is cause people to pause, talk to the picketers, apprise themselves of the issues and make a more considered decision, because their decision will be subject to public scrutiny," Hesse said. "That’s a healthy thing. We live in a society where it’s easy to shrug things off — that does not lead to engaged citizenry."
A new age
When the Supreme Court of Canada struck down the privacy laws last year, it did so in a very different climate than the original setting back in 2006. Comparatively, in 2014, social media plays a much bigger role when it comes to posting photos or information of an individual during a labour dispute.
"There’s been a dramatic increase in the use of social media — the environment in 2006 versus the environment today," Thiessen said. "The unions are much more effective doing it in 2014. The damage to individuals is already dramatically greater than what the courts would have envisioned in 2006."
