Introduction

During the COVID-19 pandemic, many employers were required, for the first time, to adopt a hybrid or entirely remote working structure, which brought new challenges to the direct supervision of employees. This led to increased concern in both unionized and non-unionized workplaces about the possibility of time theft by employees who may have had an opportunity to be paid their wages while performing non work-related tasks. In some recent decisions in both the union and non-union context, these concerns have proven to be well founded.¹

To address these concerns, some employers have implemented electronic monitoring technologies including computer software and monitoring GPS tracking systems. Given the amount of data that can be collected by these technologies, employees may have legitimate concerns about their right to privacy in light of their employer’s efforts to manage their workforce. In Ontario, the legislature passed Bill 88 to balance these competing interests, which was discussed in a previous Insight.

In British Columbia, all private organizations are subject to the Personal Information Protection Act (PIPA) which regulates the collection, use and disclosure of employees’ personal information by private organizations. The purpose of PIPA is stated in section 2 of the legislation as follows:

“The purpose of this Act is to govern the collection, use and disclosure of personal information by organizations in a manner that recognizes both the right of individuals to protect their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.”

Whether or not your workplace is in a jurisdiction with privacy-specific legislation, time and attendance issues have always been of concern in the unionized context and now, with new and developing technologies that permit employers to track employees more than ever before, the privacy impacts of such technologies have come to the forefront. In a recent decision, Canadian Forest Products Ltd. (Plateau Sawmill Division) v United Steelworkers, Local 1–2017 (Canadian Forest Products),² an arbitrator considered an electronic monitoring technology sought to be implemented by an employer to reduce the risk of time theft, against employees’ legitimate privacy interests.

The Canadian Forest Products case

In Canadian Forest Products, the employer sought to impose a fingerprint identification system at one of its sawmill plants for the purposes of modernizing its time keeping, payroll and attendance management systems, verifying employee time and attendance and increasing operational efficiency. Prior to the implementation of the fingerprint identification system, supervisors were required to manually enter time of their direct reports after each shift. The union grieved the fingerprint identification system, alleging that the collection and use of fingerprint data breached PIPA’s requirements for collection, use and disclosure of employee personal information, and that the management rights clause in the collective agreement did not entitle the employer to implement such a policy.

Analysis of privacy rights

The arbitrator conducted a thorough review of the limited circumstances where PIPA may permit an employer to collect, use or disclose an employee’s personal information without prior consent. Specifically:

1. Employees must be advised that personal information is being collected;
2. The collection, use or disclosure of personal information must be reasonable for the purposes of establishing, managing or terminating an employment relationship; and
3. The personal information that is collected, used or disclosed must also be appropriate in the circumstances.

The arbitrator also noted that an employer has an obligation to reasonably consider less intrusive alternatives before implementing any monitoring policy, although these alternatives do not need to be exhaustively assessed.

Analysis of management rights

The arbitrator also considered whether the management rights clause in the collective agreement permitted the unilateral imposition of the fingerprint identification system. This analysis also required a balancing of employees’ right to privacy against the employer’s reasons for introducing a policy that infringes on employee privacy.

In dismissing the grievance, the arbitrator was satisfied that the intrusion on employee privacy was minimal and the safety and security safeguards in place were sufficient to protect against a risk of a data breach.

Key takeaways

PIPA applies to all private organizations in British Columbia. In a unionized workplace, if an employer seeks to impose a policy that may infringe on employees’ privacy rights, a labour arbitrator will consider upholding the policy where:

1. Employees have been made aware that personal information will be collected;
2. The purpose of imposing the policy is necessary for establishing, managing or terminating an employment relationship;
3. Employers have considered less intrusive alternatives to the proposed electronic monitoring policy; and
4. The information collected as a result of executing the electronic monitoring policy is reasonably necessary to fulfill the purpose(s) of the policy.

To determine whether the information collected is reasonable, arbitrators may consider:

1. The sensitivity and amount of personal information collected, used or disclosed;
2. The likelihood of effectiveness in fulfilling the organization’s purpose(s);
3. The manner in which personal information is collected;
4. The availability of alternatives; and
5. The potential offence to employees’ dignity.

As seen in Canadian Forest Products, monitoring and surveillance issues in unionized workforces and how to implement technologies that comply with privacy laws is a material and current issue in Canada. Notwithstanding that management rights clauses in collective agreements may permit an employer to appropriately organize its workforce, employers should be mindful that policies which result in the collection, use or disclosure of personal information may be subject to review for compliance with applicable privacy laws as well as subject to scrutiny before an arbitrator.

While the analysis in Canadian Forest Products focussed on compliance with PIPA, arbitral law across the country has consistently scrutinized monitoring and surveillance and has generally only found it to be a permissible intrusion on unionized workers’ right to privacy at work when the monitoring is minimal and for a legitimate management purpose. Regardless of whether privacy-specific legislation applies, all unionized employers consider the appropriateness of the proposed surveillance or technology along the lines of the principles summarized in Canadian Forest Products with a view to increase the likelihood that whatever management has decided to implement for the betterment of the workplace is viewed that way by an arbitrator in the event of a grievance.

For more information on this topic, please contact the authors Salim Visram and Eleni Kassaris.

[1] See, Enbridge Gas Inc. v UNIFOR, Local 975, 2023 CanLII 2937 (ON LA) and Besse v Reach CPA Inc., 2023 BCCRT 27, two recent decisions where dismissals relating to time theft were upheld by the adjudicators..

[2] 2023 CanLii 5478 (BC LA) [Canadian Forest Products].