IBM is trying to block a large group of Ottawa workers providing information technology services to the federal government from unionizing within the company, The Logic has learned.
The workers, represented by the Public Service Alliance of Canada (PSAC), held a unionization vote on June 11, arguing that they work for IBM. The tech firm holds that their employer is actually Ottawa-based NewFound Recruiting, a company it brought in to hire workers to fulfill a contract it won from Shared Services Canada. IBM has spent the past six months challenging the vote and is now asking the Ontario Labour Relations Board (OLRB) to block the certification.
“The Union asserts that IBM is the true employer of the service desk employees and consequently seeks to certify IBM,” reads a November 7 OLRB decision on the case. “However, in the alternative, the Union filed a certification application against NewFound as well as a [joint-certification] application, asserting that IBM and NewFound are related employers.”
The unionization attempt at IBM comes as a growing number of tech workers in Canada are organizing. In the last year, Google employees have walked off the job over labour conditions and The Logic broke the news that a group of Toronto drivers said Amazon was blocking their unionization attempts. Since then, Foodora workers in Toronto have tried to unionize.
Andrew Langille, a Toronto-based employment and human rights lawyer, sees these cases, which all involve technology companies using contractors, as part of a broader trend within Canada.
The workers argue IBM is their true employer, but IBM contends they work for a recruiting firm it retained to find staff to fulfill a contract for Shared Services Canada. IBM has tried unsuccessfully three times to get the unionization attempt dismissed. The dispute comes amid a growing number of organizing efforts by Canadian tech workers, and as the Public Service Alliance of Canada is locked in contentious negotiations with the government.
“IBM wants to avoid risks by setting up these third-party corporations, or structuring the operations in a manner that’s going to at least attempt to sever the link between IBM and the individual worker, so there’s no liability in terms of a union, in terms of severance,” said Langille.
IBM has asked the OLRB to dismiss the case on three separate occasions; the board has denied each request. The company is now going back for a fourth attempt. IBM declined to answer The Logic’s questions about the case. “We will not comment on this matter, which is currently before the Labour Board,” said IBM Canada spokesperson Meg Nair.
“As this is an ongoing litigation, we have no comment at this time,” said Todd LeSage, a partner at NewFound. PSAC also declined to comment.
At least 40 per cent of the workers signed membership cards with PSAC, leading to the June vote. IBM initially challenged the vote based on the claim that it does not employ any of the workers in question. NewFound requested an electronic vote be held because employees work various shifts, including overnight ones, and the bargaining unit is large. NewFound, IBM and PSAC did not answer questions about how many workers are in the unit. NewFound also asked that the votes not be counted pending the board’s determination of who is the true employer of the workers. The OLRB denied all those requests and directed that the vote go ahead.
After the workers held the unionization vote, IBM and NewFound jointly asked the OLRB to preemptively remove IBM from the case before more evidence is submitted.
“When it comes to the true employer issue, IBM and NewFound argue that the Union’s pleadings do not establish that IBM exerts the most control over the working lives of the employees,” reads a November 7 decision by OLRB vice-chair Roslyn McGilvery.
The decision details that there are disagreements over whether IBM had a managerial relationship with the employees or provided equipment to them. It states that IBM and NewFound say there was “an evolution of control over the employees in question away from IBM.” PSAC, for its part, “argues that IBM’s involvement in the workplace and the alleged overlapping common control and responsibilities of IBM and NewFound, make it challenging for the Union to know who it ought to be bargaining with under the circumstances.”
McGilvery declined to preemptively remove IBM from the case and asked for three hearing dates to be scheduled to discuss it.
On November 18, McGilvery issued another decision, giving NewFound and IBM until November 25 to respond to PSAC’s submissions, and then the union until December 2 to reply in kind.
PSAC is in the midst of contentious negotiations with the government over compensation it wants for federal employees who were paid late or not at all after Ottawa switched to the Phoenix payroll system, which IBM helped build. As The Logic reported last year, IBM received nearly $2 billion in government contracts in the first two and a half years after Phoenix went live.
Neither IBM nor NewFound responded to questions about how much the contract was worth. However, IBM has received 78 contracts from Shared Services Canada in the past two years worth a combined $1.7 billion, according to an analysis conducted by The Logic of government contracting disclosures.
Langille sees the PSAC unionization attempt as a response to government outsourcing jobs to contractors that were previously done by its members.
“It’s a bit of a rear-guard action on behalf of PSAC. IT work is traditionally the kind of thing their members would do,” said Langille.
With files from Catherine McIntyre