Counsel defends Gama investigation

Counsel for the Minister for Enterprise and Employment has described as "untenable" a proposition that the Minister could not…

Counsel for the Minister for Enterprise and Employment has described as "untenable" a proposition that the Minister could not ask his inspectors to investigate and report on whether Gama Construction Ireland Ltd was complying with the provisions of industrial relations statutes in relation to its workers.

Maurice Collins SC told the High Court it was being surprisingly submitted on behalf of Gama's Turkish and Irish companies that the Minister, who was politically responsible for the implementation and enforcement of the industrial relations' legislation, was somehow uniquely disabled and could not ask an inspector or authorised officer to inquire into matters which came to his attention.

In this case, matters had come to the Minister's attention in the most dramatic way through the Dáil intervention of Joe Higgins TD, counsel said.

The Minister, who was responsible for the operation of industrial legislation and responsible for the operation of the work permit regime, was entitled to ask an inspector to investigate allegations that a large number of Turkish workers, apparently employed by an Irish company, were being systematically underpaid in breach of employment agreements and the National Minimum Wage Act.

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Mr Collins was making submissions at a hearing before Mr Justice Peter Kelly concerning applications by Gama Endustri Tesisleri Imalat Montaj A.S. and Gama Construction Ireland for an interlocutory injunction to prohibit the publication of an investigation by the department inspectorate into Gama's treatment here of its Turkish workers.

The injunction, if granted, would continue until the hearing of judicial review proceedings brought against the Minister.

Both companies contest the Minister's entitlement to direct an investigation. The court will be asked to decide if there was a legal basis for such an investigation and to inquire into the way the investigation was carried out. The two companies complain that there had been a breach of their legal entitlements in the way that investigation was carried out.

Mr Collins, in his opening submissions on behalf of the Minister and the head of the department's labour inspectorate, Edward Nolan, said the injunction was sought to restrain publication of the report by Mr Nolan on the assertion that the process followed by Mr Nolan was unlawful from start to finish and that the Minister could not ask his inspector to carry out an investigation and report.

Earlier, Donal O'Donnell SC, for Gama Construction Ireland, said the Minister's inspectorate had power to prosecute but publication of the inspector's report in advance of prosection could prejudice any prosecution.

He said Mr Nolan's warrant did not include a reference to an inherent power to inquire on behalf of the Minister or to produce his "Elliott Ness" card and state he is the Minister's special agent.

The Minister had no powers of compulsion to instruct the inspector to enter on to a premises, demand documents or answer questions. The legislation identified the inspector as the person having such power. None of the myriad of statutes under which the inspector operated provided for a report or authorised its circulation to any other party.

Procedures had not been followed in this case and that created a large question mark over the lawfulness of the process.

Richard Nesbitt SC, for the Turkish company, said this was not an attempt to stop appropriate processes which existed in legislation. His clients were attempting to stop publication of a report which found its origin in no process provided by law.

An application to have Mr Higgins joined as a notice party was refused by Mr Justice Kelly. The judge concluded that none of Mr Higgins's rights as a public representative was interfered with in these proceedings. The proceedings before the court were a review of the legality of the steps taken by the Minister and his inspectors.

Mr Higgins had also asked to be joined on the basis of his very considerable interest in the welfare of the workers, many of whom were not conversant with English and were reluctant to come forward. The judge held Mr Higgins was not entitled to be joined on that basis either. In relation to the individuals who alleged their rights had been interfered with, those rights fell to be protected by organisations of the State who had a statutory responsibility to investigate those matters, he said.

Mr Higgins also failed in his request to be joined because of what he claimed was an attack on personal reputation. Reference had been made to correspondence from the managing director of Gama Construction Ireland Ltd to the Minister indicating his company's willingness to fully co-operate with the investigation "following the statement and misinformation by Deputy Joe Higgins made under Dáil privilege."

Mr Justice Kelly said there was no doubt that an allegation that a member of parliament misused or abused his Dáil privilege was a serious allegation to make.

While he had a certain sympathy for Mr Higgins, the current proceedings would not be deciding whether Mr Higgins was guilty of impropriety or not and did not contain a mechanism to vindicate his good name. Mr Higgins was perfectly entitled, if he wished, to vindicate that in an appropriate legal forum where he could seek an award of damages for defamation.