Human Rights and Workplace Privacy E-Bulletin

By: Lancaster House  09-12-2011

ACCESS TO JOB APPLICANTS' PERSONAL INFORMATION MUST BE AUTHORIZED BY COLLECTIVE AGREEMENT LANGUAGE, LABOUR BOARD AFFIRMS
The Facts:

Under Article 5.04 (entitled "Technical Information") of the University of British Columbia's collective agreement with the Canadian Union of Public Employees, Local 116, which represents some 1,800 UBC support and technical staff, the University is required to "make available to the union on request and within thirty (30) working days, information required by the union such as job descriptions, positions in the bargaining unit, job classifications, wage rates, an explanation of the methods used in job evaluation, and financial and actuarial information pertaining to pension and welfare plans." In a number of job selection grievances, the union asked the University for copies of job applicants' résumés, job applications, and related documentation. The University refused to disclose the requested documents, taking the position that the B.C. Freedom of Information and Protection of Privacy Act (FOIPPA) prohibited it from doing so unless it was ordered by an arbitrator, or the union obtained the signed consent of each job applicant.

The union filed a policy grievance, seeking a declaration that in the future the University was required upon request to provide the union with all applicants' résumés, applications, interview notes, rankings and other related documents during the grievance process.

In a May 27, 2005 award (see Lancaster's Human Rights & Workplace Privacy eNewsletter, Issue No. 48), Arbitrator David McPhillips denied the grievance, ruling that in the absence of a collective agreement term entitling the union to pre-hearing disclosure of applicants' information in job selection grievances, he was without jurisdiction to make the requested order.

Although FOIPPA s.33.1(1)(d) permits disclosure of an employee's personal information "in accordance with a provision of .. [an] agreement that .. authorizes or requires its disclosure," McPhillips ruled that "there is no basis under the terms of this collective agreement for an arbitration board to interpret a specific section in such a way that the declaration sought by the union could be anchored in that provision." In McPhillips' view, allowing the grievance on the basis of the collective agreement "would require this board to amend or modify the agreement and, in effect, embark on a process of interest arbitration," which would be "improper as it is outside the jurisdiction of a rights arbitration board to do so." McPhillips further ruled that the B.C. Labour Relations Code did not authorize or require disclosure of the requested information for the purposes of FOIPPA s.33.1(1)(c), which provides that a public body may disclose personal information "in accordance with an enactment of British Columbia or Canada that authorizes or requires its disclosure," declaring: "[T]here is no general right of discovery explicitly or implicitly contained in the Labour Relations Code prior to a hearing, let alone during the grievance process or before a grievance is even filed." Moreover, FOIPPA s.3(2), which provides that FOIPPA "does not limit the information available by law to a party to a proceeding," does not apply to the "grievance process," McPhillips held, stating: "[U]ntil a 'proceeding' has commenced, which presupposes the appointment of an arbitration board, there is no right of the union to the documents established under section 3(2) of FOIPPA."

Finally, McPhillips rejected the union's argument that it required access to the requested documents in order to discharge its duty of fair representation. Distinguishing UFCW, Local 1518 v. Hudson's Bay, [2004] B.C.L.R.B.D. No. 227 (QL) (BCLRB) (see Lancaster's Collective Bargaining Reporter, July/August, 2004) and CAW-Canada, Local 114 v. P. Sun's Enterprises (Vancouver) Ltd., [2003] B.C.L.R.B.D. No. 301 (QL) (BCLRB) (see Lancaster's Collective Bargaining Reporter, November/December, 2003), in which the B.C. Labour Relations Board ruled that privacy legislation does not affect the employer's obligation to provide the union with employees' names, addresses, phone numbers and other personal information during negotiations, McPhillips ruled that "the information sought in those cases was very benign .. not the type of highly personal information contained in job applications, résumés and interviews which is the subject of the present application." In the result, McPhillips dismissed the grievance, ruling that neither the collective agreement nor the Labour Relations Code gave him jurisdiction to "issue the blanket order requested by the union."

The Arguments:

The union applied to the British Columbia Labour Relations Board for review of McPhillips' decision under s.99 of the B.C. Labour Relations Code, which allows parties to appeal to the Board from an arbitration award on the ground that it is "inconsistent with the principles expressed or implied in this Code or another Act dealing with labour relations."

The union argued that the arbitrator's award was inconsistent with Code principles in that it failed to recognize that the union required access to the requested documents during the grievance process in order to discharge its duties under s.12 of the Code, which provides: "A trade union .. must not act in a manner that is arbitrary, discriminatory or in bad faith ..in representing any of the employees in an appropriate bargaining unit." The union further suggested that, pursuant to the Board's decisions in Hudson's Bay and P.Sun's Enterprises, the university's refusal to provide the union with the requested information in this case constituted an unfair labour practice.
The University maintained that, in the absence of collective agreement language expressly authorizing disclosure of the disputed documents, the arbitrator did not have jurisdiction to order it. Further, since the union based its submissions entirely on the Labour Relations Code rather than the collective agreement, the University argued, it ought to direct its complaint to the Labour Relations Board.

The Decision:

British Columbia Labour Relations Board Vice-Chair Catherine McCreary dismissed the union's application, affirming the arbitrator's ruling that, "in the absence of a dispute arising under the collective agreement, the arbitrator does not have jurisdiction to order disclosure of the information sought by the union by virtue of Code provisions."

Noting that s.89 of the B.C. Labour Relations Code provides arbitrators with "the authority necessary to provide a final and conclusive settlement of a dispute arising under a collective agreement," McCreary ruled: "In this case, no violation of the collective agreement has been alleged. Thus, there is no dispute arising under a collective agreement over which an arbitrator can exercise jurisdiction." McCreary further affirmed the arbitrator's ruling that the job posting provisions of the collective agreement did not give the union a right to the requested documents, stating: "The arbitrator held that granting the union this right allows [it] to achieve by a grievance what [it] could have bargained into the collective agreement, but did not."

In any event, McCreary ruled, the Board itself would not necessarily give the union the access that it was seeking. Distinguishing Hudson's Bay and P.Sun's Enterprises, McCreary wrote: "In this case, the union did not show the arbitrator that the employer's refusal to provide the information interfered with the administration of the union. There is no doubt that the union would be able to do a better job more efficiently if it had earlier access to the information sought. However, as noted by the arbitrator, it is not without access to the information. It must file a grievance and appoint an arbitrator first. This contrasts to the Board cases where no other method was available for the union to obtain the necessary information." Dismissing the application, McCreary concluded: " I agree with the arbitrator's concern that to accede to the union's request would require him to modify the collective agreement. That modification should come about as a result of negotiation and cannot be imposed by an arbitrator."

Comment:
   
As McCreary noted in her reasons, Arbitrator McPhillips' award predates the British Columbia Court of Appeal's decision in Canadian Office and Professional Employees' Union, Local 378 v. Coast Mountain Bus Company Ltd., [2005] B.C.J. No. 2655 (QL) (see Lancaster's Labour Arbitration eNewsletter, Issue No. 57), which reversed an arbitrator's award prohibiting the employer from disclosing job applicants' personal information without first obtaining their written consent. While the Court of Appeal ruled that "where the bargaining agent is seeking disclosure under a provision in a collective agreement, disclosure is only permitted if one of the [exemption] provisions in ss.33.1 or 33.2 of the [FOIPPA] can be satisfied;" i.e., with the individual's consent, for law enforcement purposes, as authorized by law, or for a use consistent with the purpose for which the information was collected, it found that disclosure was allowed under FOIPPA s.33.2(a) (the "consistent use" exemption), stating: "The union's use of the information for the purpose of assessing the employer's hiring decision is therefore a purpose consistent with the purpose for which the information was obtained, namely, seeking a suitable candidate for a job with the employer through a job competition governed by a collective agreement." However, Coast Mountain's collective agreement with the union expressly said that "[t]he employer will provide the union with copies of applications for [bargaining unit] job bulletins upon request."
Similarly, in Chilliwack Teachers' Assn. v. Chilliwack School District No. 33 (March 12, 2004, unreported; upheld on procedural grounds, [2005] B.C.J. No. 1791 (QL)), B.C. Arbitrator Judi Korbin held that a collective agreement clause entitling the union to "[i]nformation that may be used in negotiations and processing grievances" required the employer to disclose to the union interview notes and references at stage two of a posting grievance, ruling that the information fell under FOIPPA s.22(4)(c) (allowing disclosure where "an enactment of British Columbia or Canada authorizes the disclosure"), FOIPPA s.33(c) (as it then was) (allowing disclosure "for the purpose for which it was obtained or for a use consistent with that purpose"), and FOIPPA s.3(2) (which provides that FOIPPA "does not limit the information available by law to a party to a proceeding)." Editors' Note: On October 21, 2004, s.33 of FOIPPA was amended. FOIPPA's new s. 33.1(1)(d) now provides: "A public body may disclose personal information .. in accordance with a provision of a treaty, arrangement or agreement that (i) authorizes or requires its disclosure, and (ii) is made under an enactment of British Columbia or Canada."

Distinguishing these two cases, McCreary wrote: "While both Chilliwack School Board and Coast Mountain lead to the conclusion that the FOIPPA is not a bar to the disclosure of information between an employer and a union where the union is carrying out its duties as bargaining agent, a distinguishing factor in this case is the lack of foundation in the collective agreement for the disclosure of the information sought. In the collective agreements in the cases under consideration by the Court of Appeal, the employer had agreed that the union was entitled to the information sought. The arbitrator noted the complete absence of such a provision in this agreement and suggested that it be the subject of collective bargaining." In sum, a collective agreement term that may be interpreted as entitling the union to job applicants' information may be seen as a prerequisite to the determination of whether privacy legislation allows such disclosure.

Case Name: Canadian Union of Public Employees, Local 116 v. University of British Columbia 
Jurisdiction: British Columbia Labour Relations Board
Proceeding: Review of arbitration award under s.99 of the B.C. Labour Relations Code
Decision-Maker: Catherine McCreary, Vice-Chair
Citation: [2006] B.C.L.R.B.D. No. 100  (QL)
Date: April 27, 2006


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