Given the recent developments with the postponement of the transition, your BCGEU representatives on the Joint Transition Committee want to provide you with an update and let you know about some of the work we have been doing on your behalf. We have been taking your issues forward and have worked with the two employers to resolve a number of issues.
1. Protection of Privacy Rights-Resolved
On June 24, 2019, the BCGEU wrote to NTT DATA detailing our concerns for our members' privacy rights given the US Patriot Act. That letter states in part:
In the time the BCGEU has worked with Alternate Service Delivery providers for devolved provincial government services that are based in the United States of America (USA), we have experienced considerable difficulty regarding their use of bargaining unit benefits and payroll providers based in the USA.
These problems are largely based in the differences in legislation and regulations. USA based providers are usually not familiar or experienced with Canadian federal and provincial legislative and regulatory requirements…If such providers are in the USA….[our members' personal, medical and financial information could be exposed to} ...the Patriot Act in the USA...Given these concerns, we are eager to work with the Employer to ensure bargaining unit members' benefit and payroll providers are based in Canada.
Consequently, NTT DATA responded positively to our concerns and acquired benefits and payroll services providers in Canada.
On September 12, 2019, NTT DATA advised the Joint Transition Committee (JTC-which includes representatives from ISM, NTT DATA and BCGEU) that the personal information of employees they would be receiving from ISM would have to be sent to NTT DATA headquarters in Texas because that is where their human resources is located. ISM raised their own privacy concerns about this plan. BCGEU Component 6 Vice President, Judy Fox McGuire advised NTT DATA that the BCGEU takes the privacy rights of our members very seriously and even if the Employer could do this legally (because private companies are not covered under FOIPPA), the BCGEU would take a principled position on it and take political action if necessary.
When the issue appeared to reach an impasse, BCGEU President, Stephanie Smith reached out to Minister of Health, Adrian Dix and expressed that the BCGEU had serious concerns about how the Ministry's decision to contract with a USA based company could adversely impact our members' privacy rights.
On September 30, 2019, NTT DATA Services advised the BCGEU that in response to the BCGEU's privacy concerns and although this will require additional resources, NTT DATA will keep BCGEU members' personal information in Canada and will implement an HR department in Canada to support this initiative.
The BCGEU has fought hard for the privacy rights of BCGEU members and working people in B.C.-particularly since the USA implemented the Patriot Act. Specifically, the BCGEU has made numerous submissions to the Office of Information and Privacy Commission regarding improving the legislation and its application to support the privacy rights of workers. It is important to advise BCGEU members working at ISM that this issue arose and was successfully resolved on their behalf.
2. Common Employer Issue-Resolved
In early September of 2019, NTT DATA advised the BCGEU they planned to have BCGEU members employed by one subsidiary company (NTT DATA BCU) and their managers employed by a different company (NTT DATA Canada).
The Union raised concerns and identified potential legal implications that could arise as a result of this plan with the NTT DATA designates on the JTC. On September 10, 2019, the Union wrote to NTT DATA and stated in part:
Section 38 of the Labour Code of B.C. states:
Several businesses treated as one employer
If in the board's opinion associated or related activities or businesses are carried on by or through more than one corporation, individual, firm, syndicate or association, or a combination of them under common control or direction, the board may treat them as constituting one employer for the purposes of this Code and grant such relief, by way of declaration or otherwise, as the board considers appropriate.
In light of Section 38 and in review of the four factors required to make a legal argument for common employer at the Labour Board, given the two-company model that NTT DATA Canada is planning to implement, the Union's argument against NTT DATA Canada would be…strong….
ISM had also alerted NTT DATA about this Common Employer issue in an effort to support a smooth transition. On October 3, 2019, BCGEU Advocacy representatives and BCGEU Staff Representative, Lori Strom met with NTT DATA's lawyer in Vancouver. BCGEU representatives advised that if NTT DATA insisted on implementing the two company model, the BCGEU wanted NTT DATA to accept the common employer status and to put both companies on the certification and the collective agreement. NTT DATA agreed. The two companies are: NTT DATA Canada and NTT DATA BCU. We were pleased that NTT DATA and BCGEU were able to work cooperatively to resolve this matter.
At the October 3, 2019 meeting, NTT DATA Canada's lawyer advised they would prefer to file a successorship application at the Labour Relations Board (LRB) to confirm the new certification between BCGEU and NTT DATA Canada rather than a Voluntary Recognition Agreement which had been agreed to previously. Both parties wanted the most seamless process at the LRB to ensure a smooth transition. The only outstanding issue was that it had previously been agreed that personnel files would not transfer from ISM to NTT DATA - this allows all new employees to start fresh with a new employer. Under a Voluntary Recognition Agreement, the personnel files would not transfer over, under successorship, they would. BCGEU asked NTT DATA to stand by the previous agreement to not transfer over the personnel files and NTT agreed.
4. NTT DATA Canada Net New Hires-Auxiliary Status Dec. 11, 2019-Resolved
NTT DATA has been clear in all communication with BCGEU and our members that they will require more employees than they can acquire from ISM Canada to fulfill their contract with PHSA. Consequently, they have had postings to hire more employees in addition to the transferring BCGEU members. NTT DATA identified they planned to train those employees so that they would be ready to work on the date of transition and possibly assist our members who had not yet been trained. The BCGEU raised concerns about how our members would be impacted by that plan - senior employees working with new hires. NTT DATA agreed that those new hires (with a few exceptions in specialty positions) will be auxiliary employees in the bargaining unit effective the transition date. Then, if NTT DATA believes they require more regular positions, they will follow the posting procedure in the collective agreement. This agreement demonstrates that NTT DATA has heard BCGEU's concerns and is willing to work cooperatively to address them and we appreciate their cooperation.
5. NTT DATA Team Lead Positions-Posted on or after Dec. 11, 2019-Resolved
Additionally, NTT DATA Canada has agreed to not fill the team lead positions they intend to fill (at this point it is only four positions in Service desk/Desk side) until they can be posted on or after the transition date. NTT DATA had postings out for these positions and agreed to withdraw these postings after we identified that this would be objectionable for our members. We know that some BCGEU members who are transferring to NTT DATA have been team leads in the past and have had their positions eliminated at ISM. We knew members would want an opportunity to apply for these positions. ISM has agreed to facilitate a process for NTT DATA to offer team lead TA's through an Expression of Interest process when we get closer to the transition date. Those TA's will cover these positions during the posting process. NTT DATA's agreement to postpone these postings is very supportive and responsive to BCGEU's concerns.
6. NTT DATA Canada/BCU and BCGEU Collective Agreement
NTT DATA and the BCGEU have been developing a draft collective agreement which the parties hope to have finalized and available to members on the date of transition. Please note that the content of this collective agreement will be the same as your ISM Canada-BCGEU collective agreement. All provisions will remain the same only the Employer's name and some ISM specific jargon has been changed.
7. NTT DATA Payroll Change-No Interest to be charged-Resolved
NTT DATA announced to transferring employees on the slack channel recently that they intend to implement a payroll change in January of 2020. They want to move from the current ISM payroll system where employees are paid for the two weeks of work just prior to and including the pay date-to a system where employees are paid one week in arrears. NTT DATA offered a one-week pay advance for the pay date the change will be implemented and advised BCGEU they had been advised by Revenue Canada they would have to charge interest for such advances. The BCGEU advised NTT DATA at JTC meetings that, in these circumstances, since the pay would have already been earned by our members, this would not be an advance but rather an off cycle cheque and therefore, no interest would be required nor would it be appropriate to charge for it. NTT DATA agreed no interest will be charged for those employees opting to receive the additional one week's pay on the regular pay date and repay the one week over the following month to move to the one week in arrears payroll system. Of course with the postponement of the transition this payroll change will occur at some time to be determined once the new transition date is confirmed.
8. Letter of Appreciation
BCGEU JTC member, Joseph Ivens asked ISM for a Letter of Appreciation for transferring employees. This letter would identify: the employee's name, classification, how long they worked for ISM and would express appreciation for their important contribution to the company. ISM had already prepared such a letter, however, they agreed to include the specific reference to how long an employee had worked at ISM and the Union's specific requests.
9. ISM Cell Phones-Resolved
BCGEU JTC Representative, Joseph Ivens worked cooperatively with ISM HR to resolve the issue about ISM Cell Phones that arose for transitioning employees. There was some controversy that ISM employees had to pay outstanding device fees charged by the carrier to move to a personal plan. In the last round of bargaining, in 2017, the parties agreed that: ISM employees who were required to use a cell phone to carry out their responsibilities who leave ISM and do not want to transfer any outstanding device fees charged by the carrier to a personal plan in order to retain the phone are to return the phone to ISM Canada who will pay the device fee and will retain the phone.
This is the ongoing ISM practice that will continue to be followed with the off boarding of the ISM employees who accepted offers to work for NTT DATA.
We truly appreciate your continued patience as we move through the transition process and thank you for quickly communicating issues to us as they arise to give us an opportunity to address them as soon as possible.
Judy Fox-McGuire, BCGEU Component 6 Vice President
Joseph Ivens, BCGEU Steward
Lori Strom, BCGEU Staff Representative
Download PDF of notice here
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