Gama Endustri Tesisleri Imalat Montaj A.S. and Gama Construction Ireland Ltd v The Minister for Enterprise, Trade and Employment and Edward Nolan

JurisdictionIreland
JudgeMR. JUSTICE KELLY,Ms. Justice Finlay Geoghegan
Judgment Date14 June 2005
Neutral Citation[2005] IEHC 119,[2005] IEHC 210
CourtHigh Court
Docket Number[2005 Nos. 337
Date14 June 2005

[2005] IEHC 119

THE HIGH COURT

JR 374/2005
GAMA ENDUSTRI TESISLERI IMALAT MONTAJ AS v MIN FOR ENTERPRISE, TRADE & EMPLOYMENT
JUDICIAL REVIEW
GAMA ENDUSTRI TESISLERI IMALAT MONTAJ A.S.
APPLICANT
v
THE MINISTER FOR ENTERPRISE TRADE & EMPLOYMENT, AND EDWARD NOLAN
RESPONDENTS

AMERICAN CYANAMID CO v ETHICON LTD (NO 1) 1975 AC 396 1975 2 WLR 316 1975 1 AER 504

DESMOND & DEDEIR v GLACKIN & ORS 1993 3 IR 1 1992 ILRM 490 1992/1/191

GLENCAR EXPLORATIONS PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84

BONNARD v PERRYMAN 1891 2 CH 269

FOLEY v SUNDAY NEWSPAPERS LTD 2005 1 IR 88 2005/26/5290 2005 IEHC 14

INJUNCTIONS

Interlocutory

Employment - Labour Inspectorate report - Whether necessary to show either strong prima facie case or probability of success at trial - Whether serious issue demonstrated by applicant - Executive power - Exercise - Vires - Whether publication of report lawful exercise of statutory authority by labour inspector - Whether damages adequate remedy - American Cyanamid v Ethicon [1975] 1 All ER 504 applied - Limited interlocutory injunction restraining general publication of report granted (2005/374JR - Kelly J - 22/4/2005) [2005] IEHC 119

Gama Endustri Tesisleri Imalat Montaj AS v Minister for Enterprise, Trade and Employment

The Minister directed the Labour Inspectorate to investigate allegations which had been made against the applicant construction companies relating to their treatment of employees. The two companies were given leave to apply for judicial review seeking prohibition against publication of the report. They sought interlocutory injunctions.

Held by Kelly J. in granting a limited form of injunction that no obstruction or obstacle should be placed in the way of five State authorities being appraised of the contents of the report. However, the publication of the report to the public at large should be restrained until the trial of the action. Although there were disquieting elements concerning the behaviour of the applicants, they had not been guilty of such wrongdoing or non-disclosure as to disentitle them to relief.

Reporter: R.W.

1

MR. JUSTICE KELLY ON FRIDAY, 22ND APRIL 2005

2

I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.

MR. JUSTICE KELLY DELIVERED JUDGMENT, AS FOLLOWS, ON FRIDAY, 22ND APRIL 2005
3

MR. JUSTICE KELLY: There are two Gama companies before the Court. One, Gama Endustri Tesisleri Imalat Montaj, I will refer to as the 'Turkish Company'. The other Gama Ireland, I will refer to as the 'Irish Company'. Both companies were given leave to seek, by way of Judicial Review in separate proceedings, in effect, the same substantive reliefs. They both seek prohibition against publication of a report, if it has not already been published by the time this case comes to trial. They also seek certiorari to quash that report regardless of its state of publication.

4

The only order sought at present is an interlocutory injunction restraining the First Named Respondent, the Minister for Enterprise, Trade and Employment and the Second Named Respondent, Mr. Edward Nolan, who is the Head of the Labour Inspectorate at that department from publishing the report in question, both generally and to eleven named entities to whom it is intended to send it. These entities include The Garda Fraud Squad, The Competition Authority, The Director of Corporate Enforcement, The Garda National Immigration Bureau and The Revenue commissioners.

5

The background to the case can be stated shortly as follows. Although they are separate legal entities and are represented separately, there is a relationship between the Turkish and the Irish companies.

6

The Turkish company has no place of business in this country but it says that it employs 1,350 persons in Ireland out of a total work force of 11,000 people. It does so by "seconding" them, as it describes it, on foot of what is called a "Consultancy Agreement" dated 1st November 2001.

7

The Irish company is registered here. It has carried out major public works contracts in this State. In the calendar year ended 31st December 2003, the Irish company and its subsidiaries executed works to a value in excess of €89m in Ireland.

8

On 8th February 2005, Deputy Joe Higgins made certain allegations in the Dáil. He said:

"There is a major foreign based multinational construction company employing 10,000 people, 2000 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 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 the Turkish company."

9

On that day and in the light of those allegations, the Minister directed the Labour Inspectorate of his department to investigate the allegations as a matter of priority. That was done. Much time and effort was expended on it. It has resulted in the preparation of a substantial report in a very short time. The report runs to some 40 pages of closely typed material, exclusive of ten appendices. It is this report which has given rise to these proceedings.

10

It is not desirable that I should, on an interlocutory application, refer to the reports' contents, still less express any view on them. It is, however, appropriate to mention that at the outset there were expressions of cooperation forthcoming to the Inspectorate from the Irish company. It is also noteworthy that on 3rd March 2005, the Irish company made admissions as follows. I quote now from a letter which is exhibited in the affidavits, a letter coming from Mr. Karaalioglu. The following admissions were made:

"There have been errors in calculating the payroll. These errors have been rectified with a 5.5% additional payment. I attach copy letters from the Head Office.

The company is not keeping working time records in accordance with the Regulations. I attach a copy letter from our solicitors of 2nd August 2002, which did advise me of the formal requirements. I would like to discuss your requirements to rectify this matter going forward.

We have found in the internal investigation that pay slips were only handed out in Turkey where the employees have their formal employment contract. Pay slips for the February payroll onwards will also be handed to employees in Ireland in line with advice from SIPTU last week and we are going to insert additional information."

11

By the next day the 4th March 2005, the 5.5% error had increased to 8%. That is clear from a statement issued by Murray consultants on behalf of Gama Ireland, dated 4th March 2005. It begins by saying:

"An internal review of payroll procedures at Gama construction has found errors in the calculation of payments to expatriate employees in Ireland. on average this has resulted in employees receiving 8% less than their entitlement over a limited period of time."

12

It was not until Mr. Nolan, the head of the Labour Inspectorate, received a letter of 9th March 2005, that he was informed that the Irish company was not the direct employer of any Turkish workers. Up until then, no issue had been made of the distinction between the Irish and the Turkish companies. This, late in the day, disclosure is but one of a number of unsatisfactory aspects of the Applicant's behaviour.

13

On 16th March the Inspectorate, in a letter of that date, pointed out that the inquiry was being carried out with full statutory authority and that at the direction of the Minister, it was to be completed within a short time. The draft report which came at the end of the investigation was provided to the companies and responses were required of them quickly. Time was extended for those responses. The sending of the draft report was done on the advice of the Attorney General.

14

On 31st March 2005, a long letter was sent by the Turkish company to the Inspectorate. It asserted that the investigation upon which the report was based was legally flawed and that, therefore, the report could not be concluded or published or given to any third parties.

15

The contents of that 12 page letter are succinctly summarised at paragraph 44 of the affidavit sworn by Mr. Nolan in the Turkish company's proceedings. That reads as follows.

"In a 12 page letter dated 31st March 2005, the Applicant set out the reasons why it had come to the conclusion that the investigation upon which the draft report was based was carried out in a manner outside the powers of the Minister and the Inspectorate and could not be continued, that no report based on my investigation could lawfully be concluded or published or furnished to other parties, and that the draft report is flawed to such an extent that it may not lawfully be published. The Applicant stated, inter alia, that it was at a loss to understand the statutory basis that underpins the draft report, that the draft report goes outside the matters I was empowered to investigate, that the language and tenor of the draft report is such that the true motivation behind and legal basis of much of it, if not all of the draft was questionable, and that the target of the draft report is the employer of the Turkish workers currently employed at Gama Ireland projects in the State."

16

In the conclusion of the letter, the Applicant stated that the purpose of the letter was to respond to the draft report within the time limit allowed by me and that their response was without prejudice to any further comments which they may wish to...

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    • Trinity College Law Review No. XXV-2022, January 2022
    • 1 January 2022
    ...intent to extinguish executive power is consistent with such. 33 ibid [92]. 34 ibid [92]. 35 Gama v Minister for Trade and Employment [2005] IEHC 210; Bederev v Ireland [2015] IECA 38 para 27. See also Conor Casey, ‘Under-Explored Corners: Inherent Executive Power in the Irish Constitutiona......

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