Labour Consultants Lack Privilege in Some Circumstances
In the employment world, many employers make use of outside consultants to advise on human resources policies and procedures. They may not realize that not everything they say to those consultants is necessarily protected by privilege.
The use of outside consultants is particularly prevalent in the unionized world. Labour consultants and advisors perform many useful roles such as reacting to union organizing activities and assisting with collective bargaining.
Many employers see this as a cost-effective way of obtaining the expertise of individuals who have had long and varied experiences dealing with trade unions. It can certainly be a preferable approach to an employer attempting to tip-toe through the minefield of labour relations alone.
Most employers would, I expect, assume that all of their communications with a labour advisor would be protected from disclosure in legal proceedings. They would assume that, like lawyers, labour consultants are automatically the subject of what is referred to as solicitor-client privilege.
There are, of course, good reasons for employers wanting to keep their communications with their advisors confidential. As do trade union officers with their members, employers have candid strategy discussions with their representatives.
A recent decision of B.C.’s Labour Relations Board casts some doubt on the breadth of the privilege – if there is one – protecting such employer-consultant communications from disclosure.
The matter came up in the course of a hearing of alleged unfair labour practices by Canadian Fibre during a certification campaign by the Construction and Specialized Workers’ Union. The union sought to question the employer’s labour consultant , Henry Aires, about the services he was asked to perform for the employer and about the instructions he was provided in relation to those services.
Canadian Fibre stated that it hired Aires to “respond” to the union’s certification campaign. The union called Aires a “union buster”.
The union was careful to exclude from the scope of their intended questioning any advice the consultant provided to Canadian Fibre. Although the Board’s decision did not expressly state this, it seems likely the union was hoping the consultant’s answers would demonstrate that Canadian Fibre’s objectives were not consistent with the purposes of B.C.’s Labour Relations Code.
The Code’s purposes include the “encouragement of the practice and procedures of collective bargaining between employers and trade unions as the freely chosen representatives of employees”. Evidence from an employer’s consultant indicating the employer hired the consultant for purposes other than these would be most useful for a union in the course of advancing claims of unfair labour practices.
Canadian Fibre, of course, objected to the union’s intended line of questioning. The Board stated that, “In the absence of any basis for concluding that Aires was engaged to promote rather than undermine the purposes of the Code, or that generally labour consultants are more likely to be engaged to promote rather than undermine those purposes, I have no basis for concluding that the employer-labour consultant relation is one that ‘ought to be sedulously fostered…’.”
Ultimately, the employer’s objection to the union’s questions was dismissed. The Board found that no privilege attaches “to the communications, if any, between the Employer and Aires (or others) about the services – other than providing advice – that Aires would perform for the Employer or the instructions, if any, the Employer gave Aires with respect to the non-advisory services he provided it”.
The Board expressly declined to answer the question of whether any privilege attaches to advice passing between a consultant and an employer.
This brief decision from B.C.’s Labour Relations Board casts a long shadow over the prospect that employers’ communications with non-lawyer labour consultants will be protected by privilege. Employers utilizing such consultants had best become familiar with the purposes of the Code and ensure their communications with consultants are consistent with those purposes.