Martin restrained over Gama report

The High Court has granted an injunction restraining the Minister for Enterprise, Trade and Employment, Micheál Martin, from either publishing or further circulating a report by the head of his Labour Inspectorate into allegations against two Gama companies of underpayment and mistreatment of Turkish workers employed by both companies here.

However, Ms Justice Mary Finlay Geoghegan stressed that what was at issue in the case was only the question of further circulation and publication of the report as "a single and entire document".

She was not considering or determining the Minister's entitlement to further circulate or publish any information from the Gama companies or third parties which had been communicated lawfully to the Minister, either in the course of the investigation or which might also be contained in the report.

The report of inspector Edward Nolan, dated May 4th last, has to date, on foot of a High Court order, been circulated only to the Minister and five other parties - the Garda National Immigration Bureau, the Competition Authority, the Director of Corporate Enforcement, the Garda Fraud Squad and the Revenue Commissioners.

Yesterday, Ms Justice Finlay Geoghegan held that the inspector had no statutory power to prepare "for publication" a report of an investigation conducted under the relevant employment acts and said it was on that basis she was making an order restraining publication.

What was important was the purpose for which the report was prepared and it must be a purpose authorised by one of the relevant Employment Acts, she said. She did not consider submissions by the Minister regarding the public importance of the subject matter of investigation could alter her finding that the inspector had no statutory power to prepare such a report for publication.

However, she also concluded that an inspector must have "an implicit or consequential power" under the relevant employment Acts to pass to the Minister and persons concerned with the civil enforcement procedures information, documents or evidence gathered under the inspector's express statutory powers for the purpose of those persons enforcing obligations on employers, either via civil procedures or by prosecuting alleged offences.

She noted that, at the hearing before her, there was no application to prevent the report being passed to those parties who had already received it. This was explained by the fact that the Minister and other parties already had the report and it did not make sense to seek a restraining order against them.

She further held there was no breach of fair procedures in the manner in which the investigation into the allegations against the Gama companies was conducted "provided the use of the results of that investigation was confined to the permitted statutory purposes" under the relevant Employment Acts.

She granted the injunction against further circulation or publication of the report in light of her finding that the inspector acted in excess of his statutory powers under the relevant Acts in preparing a report "intended for publication" of the results of an investigation into alleged breaches by an employer of statutory obligations. The relevant Acts were the Industrial Relations Acts 1946-2004, the Organisation of Working Time Act 1997, the Minimum Wage Act 2000 and other relevant employment acts.

The judge said the parties would note she had not made an order quashing the inspector's report. She said she was not minded to make such an order, given a recent Supreme Court decision. She would hear counsel on that and other issues when they had time to consider her judgment and adjourned the case on that basis to June 23rd next.