Gama Endustri Tesisleri Imalat Montaj A.S. v Minister for Enterprise, Trade and Employment

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 30 April 2009
• Neutral Citation: [2009] IESC 37
• Court: Supreme Court
• Docket Number: [S.C. No.
• Date: 30 April 2009

[2009] IESC 37

THE SUPREME COURT

Denham J.

Hardiman J.

Fennelly J.

Kearns J.

Macken J.

[S.C. No. 288 & 289 of 2005]

Gama Endustri Tesisleri Imalat Montaj A.S. v Min for Enterprise & Nolan

BETWEEN

GAMA ENDUSTRI TESISLERI IMALAT MONTAJ A.S.

RESPONDENT/APPLICANT

AND

THE MINISTER FOR ENTERPRISE, TRADE & EMPLOYMENT

AND

EDWARD NOLAN

APPELLANTS/RESPONDENTS

AND BETWEEN

GAMA CONSTRUCTION IRELAND LIMITED

RESPONDENT/APPLICANT

AND

THE MINISTER FOR ENTERPRISE, TRADE & EMPLOYMENT

AND

EDWARD NOLAN

APPELLANTS/RESPONDENTS

NATIONAL MINIMUM WAGE ACT 2000

ORGANISATION OF WORKING TIME ACT 1997

INDUSTRIAL RELATIONS ACT 1969 S12(2)

DESMOND & DEDEIR v GLACKIN & ORS (NO 2) 1993 3 IR 67 1992/6/1627

KENNEDY v LAW SOCIETY OF IRELAND & ORS 2002 2 IR 458 2001/13/3693

CASSIDY v MIN FOR INDUSTRY 1978 IR 297

MORRIS v DIRECTOR OF SERIOUS FRAUD OFFICE 1993 1 AER 788 1993 3 WLR 1

MARCEL v CMSR OF POLICE OF THE METROPOLIS 1991 2 WLR 1118 1991 1 AER 845

EMPLOYMENT

Inquiry

Executive power - Exercise - Vires - Report - Publication - Industrial relations - Powers of labour inspector - Scope - Exercise of statutory powers - Implied statutory authority - Limits of statutory powers - Publication of report of labour inspector - Whether investigation conducted exclusively under statutory power - Whether power to prepare report of results of investigation and intended to be published incidental or consequential upon express powers given to labour inspector - Whether initial intention to generally publish report unlawful purpose such as to vitiate entire report - Whether purposes severable - Desmond v Glackin (No 2) [1993] 3 IR 67 applied; Morris v Director of Serious Fraud Office [1993] 1 WLR 1 and Kennedy v Law Society of Ireland (No 3) [2002] 2 IR 458 distinguished - Industrial Relations Act 1969 (No 14), ss 10 and 12 - Industrial Relations Act 1990 (No 19), s 52 - Payment of Wages Act 1991 (No 25) - Organisation of Working Time Act 1997 (No 20), s 8 - National Minimum Wage Act 2000 (No 5), s 34(4) - Respondents appeal allowed and publication permitted (288 & 289/2005 - SC - 30/4/2009) [2009] IESC 37

Gama Endustri Tesisleri v Minister for Enterprise, Trade and Employment

Facts: the applicant was alleged to have been in breach of employment legislation by, inter alia, paying its workers less than the minimum wage and requiring them to work longer than the statutory maximum. As a result, the first respondent appointed the second respondent as an inspector under the relevant employment Acts to investigate such alleged breaches. It was intended by the respondents from the outset that there would be a general publication of a report consequent upon such investigations and not merely a limited circulation to the first respondent and appropriate regulatory authorities. When undertakings as to non-publication of the report were not forthcoming from the respondents, the applicants applied to the High Court by way of judicial review seeking prohibition against publication of the report and an order of certiorari quashing the report on the basis that the intended general publication was an unlawful purpose which had the effect of completely invalidating the report. The High Court made a declaration that the preparation of the report was ultra vires, an order quashing the report and an order restraining the circulation or publication of the report on the basis that as one of the purposes for which the report had been commissioned was unlawful, namely general publication, it vitiated the entire process and warranted the quashing of the report. The respondent appealed to the Supreme Court.

Held by the Supreme Court (Mr Justice Peart) in allowing the appeal that the investigation was exclusively premised on the specific statutory powers set out in the employment Acts and not on any general inherent executive power.

That the various statutory powers relied upon by the respondents did not envisage, permit or authorise any general publication of the report but as the intended publication of any report emerging from the investigation was a collateral and incidental act outside of the purposes of the investigation itself, that purpose did not invalidate the report once the circulation of the report was confined to the respondent and other civil or criminal enforcement authorities for permitted statutory purposes under the relevant Employment Acts.

Desmond v Glackin (No. 2) [1993] 3 IR 67 applied

Kennedy v Law Society [2002] 2 IR 458 and Morris v Director of Serious Fraud Office [1993] 1 All ER 788 distinguished

Reporter: P.C.

1 JUDGMENT of Mr. Justice Kearns delivered the 30th day of April, 2009

2 Judgment delivered by Kearns J. [Nem diss]

3 This is an appeal brought by the Minister for Enterprise, Trade & Employment from the judgment of the High Court (Finlay Geoghegan J.) delivered on the 14 ^th June, 2005 and the subsequent Order made on the 23 ^rd June, 2005 herein which granted a declaration that the preparation of a report dated 4 ^th May, 2005 by the second named respondent was ultra vires his powers as an Inspector under the relevant Employment Acts. The appeal is brought also from the Order restraining the respondents from further circulating or publishing the said report, or any earlier version thereof, and further challenges the Order of Finlay Geoghegan J. which quashed the said report in its entirety.

4 Whilst there are two sets of proceedings in being, both were brought on behalf of the Gama company. The applicant first named in the title hereof (hereinafter "Gama Turkey") has its primary seat or location in Turkey. The second named applicant is Irish based and was incorporated in 1999. It is a company ultimately owned by Gama Turkey. Gama Construction Ireland (hereinafter "Gama Ireland") has a number of Irish subsidiary and related companies. Gama Ireland is involved in the construction industry. It commenced operations in Ireland in 2000 and competed successfully for several important public sector projects, funded mainly from the National Development Programme. Projects in Ireland include major road projects, power stations and social housing. The value of the work carried out by Gama Ireland and its related companies in the calendar year 2003 was of the order of €89 million. According to the 2003 audited Gama Ireland Group accounts, there were 1,066 employees in Gama Ireland who received wages and salaries of €28,051,524 in that year. In March, 2005 Gama Ireland had 927 current work permits, of which 924 were in respect of Turkish nationals. Before deciding to grant work permits to Gama, the Work Permits Section of the Department of Enterprise, Trade & Employment had received assurances from Gama Ireland and its legal advisors at that time that all provisions of Irish employment law would be observed and that the 'going rate' would be paid to all Turkish workers. In work permits documentation, the Turkish workers were described as employees of Gama Ireland or other Irish-registered companies.

5 On 8 ^th February, 2005, Mr. Joe Higgins T.D. made the following statement in Dail Eireann in respect of alleged abuses of employment rights by Gama Ireland:-

"There is a major foreign based multi-national construction company, employing approximately 10,000 people, 2,000 approximately in this State, which has secured massive local authority and State contracts here. This company imports workers from its home base, who do not speak English, controls their passports and work permits, accommodates them often in company barracks, demands an extent of hours worked that can only be called grotesque and, incredibly, pays unskilled construction workers between €2 and €3 per hour basic pay and skilled workers somewhere over €3 per hour. In short, this is a modern version of bonded labour. The instigator is Turkish-based Gama Construction Ireland Limited."

6 On the same day and in the aftermath of the foregoing allegations, the Minister for Enterprise, Trade & Employment directed the Labour Inspectorate of his Department to carry out an urgent investigation into the matter. This direction does not appear to have been the subject matter of any formal instrument. Be that as it may, it is clear that the subject matter of the investigation was to enquire into allegations that:

7 (a) Gama Ireland was paying unskilled construction workers €2/€3 per hour and skilled workers somewhat more than €3 per hour and was, therefore, in breach of the requirements of, inter alia, the National Minimum Wage Act 2000; and

8 (b) Gama Ireland was requiring its workers to work "grotesque" hours and was therefore in breach of the requirements of, inter alia, the Organisation of Working Time Act 1997.

9 The second named respondent, Edward Nolan, (hereinafter "the Inspector") is the head of the Labour Inspectorate. By warrant of appointment dated 12 ^th December, 2000, the Inspector was appointed by the Minister to be:-

" An Inspector to exercise all the powers and perform all the duties conferred or imposed on an inspector under the following Acts:-"

10 · Industrial Relations Acts 1946 to 1990

11 · National Minimum Wage Act 2000

12 · The Organisation of Working Time Act 1997

13 · Protection of Young Persons ( Employment) Act 1996 and to be an authorised officer to perform all the duties conferred or imposed on an authorised officer under the following Acts:-

14 · Redundancy Payments Acts 1967 to 1991

15 · Protection of Employment Act 1977

16 · Employment Agency Act 1971

17 · European Communities (Safeguarding of Employees Rights on Transfer of Undertakings) Regulations 1980

18 · Protection of Employees (Employers Insolvency) Acts 1984 to 1991

19 · Payment of Wages Act 1991"

20 The investigation commenced...