We therefore have the five-year perspective rather than the shorter period that other organizations have.
We are going to talk about employee issues, and we're going to be exclusively talking about it because it's the only thing we talk about.
From FETCO's perspective, PIPEDA is one of many pieces of labour legislation regulating our businesses. Others include the three parts to the Canada Labour Code, the Canadian Human Rights Act, and the Employment Equity Act. It is our belief that Parliament intended these various statutes to be applied in such a way as to minimize conflict. Through their application, the other statutory obligations placed on employers would be given cognizance, minimizing interference with normal business operations.
I'll reiterate the comment we made five or six years ago to the committee at the time, which I think was the industry committee, that this looks very much like a piece of commercial legislation. Canadians were told about it in the consultation process. It really wasn't until we saw the bill that we realized the larger labour implications. We think perhaps the bill has suffered and the act is suffering from the fact that not enough thought went into the actual provisions dealing with labour issues.
In the brief I circulated, which hopefully was sent to members—I think I sent it about 10 days ago—we cover a number of areas. Quite frankly, we've collectively run into a number of problems with the act.
We make numerous recommendations in the area of employee relations. However, I'm only going to spend time on two of them, because we think they're two of the most important: information consent and the formal dispute resolution process.
There is clearly a need to distinguish between truly personal information related to the employee and information that is used for legitimate business activities or business identifiers. It has been a cause of concern in terms of the application of the act. We understand the Privacy Commissioner is perhaps cognizant of this.
For example, identifiers such as a fax number, which is a phone number, and an e-mail address, which is a business address, are provided for the express purpose of running the business. These in fact belong to the employer, not the employee. When the employee leaves the business, the identifiers stay with the business and don't go with the employee. It's therefore very difficult for us to determine why this would be considered personal information.
When I left the Canadian Pacific Railway a few years ago, I didn't take my e-mail address with me. On the day I left the company, they cancelled it.
We believe it's an example of a situation where a little more thought was needed. The act should have been drafted a little differently to capture what is clearly business information rather than personal information.
Given the increased tension among the various pieces of employment-related legislation in PIPEDA and the importance of maintaining a balance in the employment relationship, consideration may need to be given to whether employee consent should be treated differently.
Different options exist for dealing with employee consent, including reliance on implied or deemed consent or even eliminating the requirement for employee consent for the collection, use, or disclosure of personal information related to managing reasonable requests of the employment relationship. I would say, and I'll probably repeat this at the end, we are favourably disposed to the approach taken in B.C. and Alberta.
It is recommended that issues surrounding employee consent be considered and addressed during the review process. We have a couple of specific recommendations in this area.
We recommend that e-mail addresses and fax numbers should be excluded from the existing definition of personal information and that a new definition of personal information should be developed.
We also recommend that the act be changed to permit employers to collect, use, and disclose personal employee information, either without consent or when there is deemed consent in the conduct of routine and reasonable business in the managing of the employment relationship. That's how we think the acts in B.C. and Alberta work.
The second issue is probably more problematic in the context of the day-to-day operation of the business. It is the informal dispute resolution process. And for the record, Mr. Chairman and members of Parliament, the original bill that was introduced into the House of Commons by the Minister of Industry, way back when, didn't have this provision in it. We foresaw all sorts of difficulties in a whole pile of different areas unless there was something to deal with our ability to manage the employment relationship and fulfil our responsibilities under other statutes.
For example, part 1 of the Canada Labour Code requires that there be a process for dealing with disputes without stoppage of work. Investigations are required under part 2 of the Canada Labour Code. According to part 3 of the Canada Labour Code, you have to have a sexual harassment provision. And if Harry Arthurs has his way, there will be a lot of other obligations on employers, given the kinds of things he'll put in his report on the review of part 3. Of course, we are also obligated under the Canadian Human Rights Act to conduct investigations when there is a complaint lodged.
While PIPEDA provides that personal information generated in the course of a formal dispute resolution process not be provided when an access request is received--that's what we requested six or seven years ago when that was put into the legislation--FETCO believes that the definition of what constitutes a formal dispute resolution process and the stipulation that the information can be withheld in the course of a formal dispute resolution process are restrictive and erode confidence in the process.
Employers are required to investigate employee complaints, often on a confidential basis and without the assistance of an outside body. All investigations of complaints or disputes begin with the differing of opinions, which leads to an information-gathering process. It is impossible to resolve a dispute until the facts identifying the dispute have been determined. Doing so is often undertaken by those having knowledge of the incident and providing information about it, often on a confidential basis, in some form, to those in the business of handling the complaint. This fact-finding process is an integral part of the formal dispute resolution process, whether to determine the need for discipline or to investigate grievances, sexual or other harassment, or other workplace complaints. The fact that an employee being investigated can have access to any confidential information provided by complainants and witnesses results in complainants' being reluctant to have their issues addressed through appropriate internal redress systems, and witnesses' being reluctant to give evidence. We think that the definition is too restrictive. We think it has to cover all aspects of the dispute resolution process, including the information-gathering aspects, which would naturally be the early workings of any dispute resolution process. For anything you do, you collect data and you collect information.
At the present time, the integrity of the fact-finding process is very likely compromised by the fact that it is not protected by exceptions to access. In cases like these, the OPC has taken the position that such information is not, in fact, being generated in the course of a formal dispute resolution process, and therefore is subject to access under PIPEDA. It is FETCO's experience that the OPC's current position--that information gathered in the course of internal investigations is subject to access--has an adverse effect on the ability of employers to collect pertinent information and resolve workplace disputes without complication.
We have a couple of recommendations here, specifically the following:
The term “formal dispute resolution process” should be broadly defined to include all established mechanisms used to conduct an investigation, or otherwise resolve an employee complaint.
In all phases of a dispute resolution process, the employer should not be required to provide access to personal employee information.
Information collected while investigating a breach of a law or contract, regardless of whether the information was collected with or without the knowledge and the consent of the individual, should be also exempt from the requirement to provide access.
It is also inappropriate for employees to be able to access opinions and recommendations made by industrial relations or human resources personnel with regard to employee relations matters, including recommendations as to appropriate discipline or suitability for continued employment.
If I might conclude, Mr. Chair, FETCO strongly encourages that the recommendations contained in our brief be carefully examined in this review of PIPEDA. We've been around a long time, and we don't expect you to pick up every recommendation in your report. But we do ask that you give serious consideration to them. It is imperative that this review take into account the implications of this legislation on employers, their workplaces, and their business activities.
We are aware that subsequent to the implementation of PIPEDA, some provinces have passed substantially similar legislation. They have benefited from the experience gained under PIPEDA and have brought more clarity to the treatment of employee issues. The definition of personal employee information--including confirmation that the definition does not include work product--the concept of a formal dispute resolution process, and the reasonable use of employee information without consent are cases in point. We would recommend that in reviewing PIPEDA, examination be made of the developments in privacy legislation provincially. We would specifically direct your attention to Alberta and B.C.
Thank you very much.