The BC Labour Relations Board recently ruled that communications between employers and labour consultants are not generally privileged.
A union alleged that an employer engaged in unfair labour practices during the union’s certification drive. During the hearing, the union sought to question witnesses regarding communications between the employer and its labour consultant. The employer objected and argued that these communications were privileged.
The Board found that while advice provided by a labour consultant may be privileged, privilege does not protect:
- communications between the employer and its labour consultant about the services that a labour consultant would perform for the employer; or
- the employer’s instructions to the labour consultant regarding the non-advisory services the labour consultant provided.
This decision underlines the importance for employers to exercise caution when communicating with labour consultants, particularly in circumstances which are likely to lead to litigation, such as union organizing drives.