by Gemma Handy
Almost 30 former APUA staff have launched legal action against the state utility firm over non-payment of pensions – some of which date back more than 20 years.
The case is said to be one of the largest class action suits of its kind ever filed in the country’s industrial court.
If successful, it could see the company forced to fork out millions of dollars to the 27 claimants who say they have never received a cent in pension money since their mandatory retirement at the age of 60.
And, says industrial relations consultant Anderson Carty who is leading the action on their behalf, there are likely to be hundreds more erstwhile workers affected.
Carty says he is “one hundred percent confident of success” due to a clause in a collective agreement signed decades earlier between APUA and the Antigua Trades and Labour Union (AT&LU) when staff became unionised.
The deal stipulates workers be paid a lump gratuity sum – equivalent to severance – when they retire, in addition to a monthly pension payment thereafter determined by salary and length of service.
Carty claims, while they received severance, the pensions clause has never been honoured, save for a handful of cases in which lone litigants have taken action.
In those cases, the ex-workers have settled out of court and apparently even been made to sign non-disclosure agreements.
Carty thinks APUA is keen to avoid a court judgment – and keep the settlements quiet – for fear of opening the floodgates to hundreds more claims.
“We are determined to go to court and create a judgment so that every future employee retired by APUA will receive a pension,” he tells Observer.
“Most of my 27 clients worked there for more than 20 years; we are claiming money retrospectively as well as pensions going forward.”
He says two previous matters resolved with APUA in recent years resulted in the litigants now receiving monthly pensions of EC$700-900.
“And they were not highly paid staff. An average pension for my clients might be EC$1,200 to EC$1,500 a month each,” he explains.
A conservative estimate using those figures tots up a bill to APUA of almost EC$300,000 per claimant with 20 years of service – equating to around EC$8 million for all 27.
Under the collective agreement, when an APUA retiree dies – in the case of monthly-paid, full-time staff – the lifelong pension is instead payable to their spouse.
The case was filed in the court last week and documents served on Tuesday.
Carty took on the matter after being approached by a sole retiree concerned that he had never received a pension from the utility firm. Since then, “more and more people” have come forward with similar complaints, he says.
Hugh Joseph, AT&LU’s general secretary, tells Observer the union has been in discussions with APUA on the issue for well over a decade.
“There’s a difference of opinion on the collective agreement – a misunderstanding of it,” he says. “The collective agreement is a legally binding document; we have been told this by the Labour Department.
“APUA has honoured every other part of the agreement but not the pensions.”
Joseph alleges the firm has been cunning in its approach.
“They have settled other claims and put in place non-disclosure agreements. They have been smart in addressing this matter in my opinion, because if there was ever a court judgment, it could be used to enforce the pensions clause,” he says.
“It appears to be a deliberate breaching of what’s required,” Joseph adds.
Correspondence from APUA to Carty, which Observer has seen, implies the reason pensions have never been paid is because of a lack of complaint by ex-employees.
A letter dated July 14 2020, signed by APUA’s HR manager Rodney Simon, states that the lump sum paid to retiring workers “has been acceptable to our employees over the years”.
“And as such, has remained unchallenged by all of the four bargaining units representing our workers,” it continues.
The letter adds that APUA will not “at this juncture, seek to move away from its current practice of awarding a lump sum gratuity” to staff when they retire at 60.
Carty says despite the Labour Department previously ruling the agreement to be “binding and effective”, nothing has been settled since.
Former Labour Commissioner Hesketh Williams, who held the post when the case previously came before the department in 2008, told Observer he could no longer recall the details.
Carty acknowledges the matter might take some time to be heard by the industrial court, but he hopes recent efforts to clear a backlog of cases will see it come up next year.
“Workers’ rights did not come overnight,” he adds. “They were fought for and cannot be taken away. We must stand up and defend those gains.”
APUA’s HR manager told Observer that because the matter was the subject of legal proceedings, “it would not be prudent for us to comment at this time”.
“There are certainly two sides to this story,” Simon added.