Providing Workplace Injury Information to Union Does Not Violate Federal Privacy Law, Board Rules
The Facts:
When the federal Personal Information Protection and Electronic Documents (PIPED) Act became applicable in 2004 to the provincially-regulated private sector in provinces that have not enacted their own substantially similar legislation, Ontario employer E.S. Fox Ltd. stopped giving the union representing its employees written notice of workplace accidents as required under the provincial Occupational Health and Safety Act.
The company's position was that to do so would be a violation of the federal law. The union complained to the Ontario Labour Relations Board that the employer’s failure to provide the required information was in breach of the provincial law.
Section 52(1) of the Occupational Health and Safety Act provides that “[i]f a person is disabled from performing his or her usual work or requires medical attention because of an accident, explosion or fire at a workplace, but no person dies or is critically injured because of the occurrence, the employer shall, within four days of the occurrence, give written notice of the occurrence containing the prescribed information and particulars to … [the health and safety] committee, the health and safety representative and the trade union, if any…” Ontario Regulation 213/91 prescribes that a notice under s.52(1) of the Act shall set out the name, address and type of business of the employer; the nature and circumstances of the occurrence and the bodily injury or illness sustained by the worker; a description of the machinery or equipment involved; the time and place of the occurrence; the name and address of the worker involved; the names and addresses of all witnesses to the occurrence; the name and address of any legally qualified medical practitioner by whom the worker was or is being attended for the injury or illness; the name and address of each medical facility, if any, where the worker was or is being attended for the injury or illness; and the steps taken to prevent a recurrence.
At the same time, however, s.4.3 of Schedule 1 of the federal PIPED Act provides that “[t]he knowledge and consent of the individual are required for the collection, use or disclosure of personal information, except where inappropriate.” Section 2(1) of the provides that “'personal information' means information about an identifiable individual, but does not include the name, title or business address or telephone number of any employee of an organization.”
Section 4(1) of the PIPED Act provides that “[t]his Part applies to every organization in respect of personal information that (a) the organization collects, uses or discloses in the course of commercial activities…” The Act defines “commercial activity” as “any particular transaction, act or conduct or any course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists.” Finally, s.7(3) provides that “an organization may disclose personal information without the knowledge or consent of the individual only if disclosure is…(i) required by law”.
The Arguments:
The employer argued that, when it obtained the information required by s.52(1) of the Occupational Health and Safety Act, it was collecting information in the course of a commercial activity within the meaning of s.4(1)(a) of the PIPED Act, and therefore it was prohibited under the federal law from disclosing this information to the union without the consent of the individual employee involved.
The employer contended that, if the union wanted the information contemplated by section 52(1), it could either obtain the worker’s consent to permit the company to release this information or else obtain the information directly from the worker. It maintained that it could not itself seek a worker’s consent to release information to the union because this could constitute interference by the employer in the affairs of the union.
The union replied that personal information can be disclosed without consent under the PIPED Act when the disclosure is required by law, as it was in this case by the Occupational Health and Safety Act. The union also argued that, if a worker’s consent was required in order for the company to disclose the information that it was required under s.52(1) to provide, then the provincial law clearly placed the onus on the employer, not the union, to obtain that consent, because it was the employer that was legally obliged to provide the information to the union.
The Decision:
Board Vice-Chair Susan Serena ruled on behalf of a three-member panel that the PIPED Act did not preclude or exempt the company from providing the union with the information required under s.52(1).
With respect to section 4(1)(a) of the PIPED Act, which renders the Act applicable to personal information collected, used or disclosed in the course of commercial activities, Serena held that “the collection, use or disclosure by an organization of the personal information of its employees solely for employment-related purposes cannot reasonably constitute a ‘commercial activity’ under any logical interpretation of that phrase. The mere fact that an organization carries on a commercial activity cannot, on its own, render the collection, use or disclosure of employee personal information for employment-related purposes into a commercial activity.” Therefore, Serena held, the employee information that the employer collected with regard to workplace occurrences related to health and safety was employment-related information that was not subject to the PIPED Act.
Even if this interpretation were incorrect, Serena also determined, “[t]here can be no dispute that subsection 52(1) of the [Occupational Health and Safety] Act specifically directs the company to disclose the information at issue to the union.” Since s.7(3)(i) of the PIPED Act permits disclosure of personal information without the knowledge or consent of the individual where the disclosure is “required by law,” Vice-Chair Serena held on behalf of the Board that the employer clearly was obliged to provide the information at issue to the union in compliance with the provincial legislation.
John Illingworth: Section 4(1)(b) of the PIPED Act in fact distinguishes personal employee information from other information collected in the course of a commercial activity, stating: “This Part applies to every organization in respect of personal information that … (b) is about an employee of the organization and that the organization collects, uses or discloses in connection with the operation of a federal work, undertaking or business.” However, because s.4(1)(b) expressly limits the applicability of Part I, in respect of employee information, to federally regulated workplaces, personal employee information collected, used or disclosed by a provincially regulated employer is not subject to the requirements of the PIPED Act
As the Ontario Labour Relations Board stated: “The mere fact that an organization carries on a commercial activity cannot, on its own, render the collection, use or disclosure of employee personal information for employment-related purposes into a commercial activity. Furthermore, if subsection 4(1)(a) of PIPEDA is intended to include the employment-related collection, use or disclosure by an organization of the personal information of its employees, subsection 4(1)(b) of PIPEDA (under which Part 1 of PIPEDA applies to the personal information of the employees of federal works, undertakings or businesses) would be unnecessary. (See: Re: McKesson Canada and Teamsters Chemical, Energy and Allied Workers Union, Local 424, 136 L.A.C. (4th) 102, G.F. Luborsky). Therefore, assuming that the company was only collecting, using and disclosing the personal information of the employees who are the subject matter of this application for an employment-related purpose, the Board concludes that PIPEDA does not apply to this information.”
Presumably, the reason that the provisions of the PIPED Act that relate to employment information are expressly limited to federal undertakings, and are not applicable to provinces which have not enacted “substantially similar” legislation, is constitutional in nature, insofar as legislative jurisdiction over employment matters (except with respect to federally regulated industries) is vested by the Constitution in the province.
Case Name:
International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers and its Local 736 v. E.S. Fox Limited
When the federal Personal Information Protection and Electronic Documents (PIPED) Act became applicable in 2004 to the provincially-regulated private sector in provinces that have not enacted their own substantially similar legislation, Ontario employer E.S. Fox Ltd. stopped giving the union representing its employees written notice of workplace accidents as required under the provincial Occupational Health and Safety Act.
The company's position was that to do so would be a violation of the federal law. The union complained to the Ontario Labour Relations Board that the employer’s failure to provide the required information was in breach of the provincial law.
Section 52(1) of the Occupational Health and Safety Act provides that “[i]f a person is disabled from performing his or her usual work or requires medical attention because of an accident, explosion or fire at a workplace, but no person dies or is critically injured because of the occurrence, the employer shall, within four days of the occurrence, give written notice of the occurrence containing the prescribed information and particulars to … [the health and safety] committee, the health and safety representative and the trade union, if any…” Ontario Regulation 213/91 prescribes that a notice under s.52(1) of the Act shall set out the name, address and type of business of the employer; the nature and circumstances of the occurrence and the bodily injury or illness sustained by the worker; a description of the machinery or equipment involved; the time and place of the occurrence; the name and address of the worker involved; the names and addresses of all witnesses to the occurrence; the name and address of any legally qualified medical practitioner by whom the worker was or is being attended for the injury or illness; the name and address of each medical facility, if any, where the worker was or is being attended for the injury or illness; and the steps taken to prevent a recurrence.
At the same time, however, s.4.3 of Schedule 1 of the federal PIPED Act provides that “[t]he knowledge and consent of the individual are required for the collection, use or disclosure of personal information, except where inappropriate.” Section 2(1) of the provides that “'personal information' means information about an identifiable individual, but does not include the name, title or business address or telephone number of any employee of an organization.”
Section 4(1) of the PIPED Act provides that “[t]his Part applies to every organization in respect of personal information that (a) the organization collects, uses or discloses in the course of commercial activities…” The Act defines “commercial activity” as “any particular transaction, act or conduct or any course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists.” Finally, s.7(3) provides that “an organization may disclose personal information without the knowledge or consent of the individual only if disclosure is…(i) required by law”.
The Arguments:
The employer argued that, when it obtained the information required by s.52(1) of the Occupational Health and Safety Act, it was collecting information in the course of a commercial activity within the meaning of s.4(1)(a) of the PIPED Act, and therefore it was prohibited under the federal law from disclosing this information to the union without the consent of the individual employee involved.
The employer contended that, if the union wanted the information contemplated by section 52(1), it could either obtain the worker’s consent to permit the company to release this information or else obtain the information directly from the worker. It maintained that it could not itself seek a worker’s consent to release information to the union because this could constitute interference by the employer in the affairs of the union.
The union replied that personal information can be disclosed without consent under the PIPED Act when the disclosure is required by law, as it was in this case by the Occupational Health and Safety Act. The union also argued that, if a worker’s consent was required in order for the company to disclose the information that it was required under s.52(1) to provide, then the provincial law clearly placed the onus on the employer, not the union, to obtain that consent, because it was the employer that was legally obliged to provide the information to the union.
The Decision:
Board Vice-Chair Susan Serena ruled on behalf of a three-member panel that the PIPED Act did not preclude or exempt the company from providing the union with the information required under s.52(1).
With respect to section 4(1)(a) of the PIPED Act, which renders the Act applicable to personal information collected, used or disclosed in the course of commercial activities, Serena held that “the collection, use or disclosure by an organization of the personal information of its employees solely for employment-related purposes cannot reasonably constitute a ‘commercial activity’ under any logical interpretation of that phrase. The mere fact that an organization carries on a commercial activity cannot, on its own, render the collection, use or disclosure of employee personal information for employment-related purposes into a commercial activity.” Therefore, Serena held, the employee information that the employer collected with regard to workplace occurrences related to health and safety was employment-related information that was not subject to the PIPED Act.
Even if this interpretation were incorrect, Serena also determined, “[t]here can be no dispute that subsection 52(1) of the [Occupational Health and Safety] Act specifically directs the company to disclose the information at issue to the union.” Since s.7(3)(i) of the PIPED Act permits disclosure of personal information without the knowledge or consent of the individual where the disclosure is “required by law,” Vice-Chair Serena held on behalf of the Board that the employer clearly was obliged to provide the information at issue to the union in compliance with the provincial legislation.
John Illingworth: Section 4(1)(b) of the PIPED Act in fact distinguishes personal employee information from other information collected in the course of a commercial activity, stating: “This Part applies to every organization in respect of personal information that … (b) is about an employee of the organization and that the organization collects, uses or discloses in connection with the operation of a federal work, undertaking or business.” However, because s.4(1)(b) expressly limits the applicability of Part I, in respect of employee information, to federally regulated workplaces, personal employee information collected, used or disclosed by a provincially regulated employer is not subject to the requirements of the PIPED Act
As the Ontario Labour Relations Board stated: “The mere fact that an organization carries on a commercial activity cannot, on its own, render the collection, use or disclosure of employee personal information for employment-related purposes into a commercial activity. Furthermore, if subsection 4(1)(a) of PIPEDA is intended to include the employment-related collection, use or disclosure by an organization of the personal information of its employees, subsection 4(1)(b) of PIPEDA (under which Part 1 of PIPEDA applies to the personal information of the employees of federal works, undertakings or businesses) would be unnecessary. (See: Re: McKesson Canada and Teamsters Chemical, Energy and Allied Workers Union, Local 424, 136 L.A.C. (4th) 102, G.F. Luborsky). Therefore, assuming that the company was only collecting, using and disclosing the personal information of the employees who are the subject matter of this application for an employment-related purpose, the Board concludes that PIPEDA does not apply to this information.”
Presumably, the reason that the provisions of the PIPED Act that relate to employment information are expressly limited to federal undertakings, and are not applicable to provinces which have not enacted “substantially similar” legislation, is constitutional in nature, insofar as legislative jurisdiction over employment matters (except with respect to federally regulated industries) is vested by the Constitution in the province.
Case Name:
International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers and its Local 736 v. E.S. Fox Limited
Tribunal:
Ontario Labour Relations Board
Panel:
Susan Serena, Vice-Chair, and John Tomlinson and Alan Haward, Members
Date:
January 11, 2006
Citation:
[2006] O.L.R.D. No. 107 (QL)
Full Text:
http://www.lancasterhouse.com/decisions/2006/jan/OLRB-IABSORIWU,736-v-ESFox.pdf
posted by CUPE Local 1356 @ Thursday, April 27, 2006
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