§104-2  Applicability; wages, hours, and
other requirements.  (a)  This chapter shall apply to every contract in
excess of $2,000 for construction of a public work project to which a
governmental contracting agency is a party; provided that this chapter shall
not apply to experimental and demonstration housing developed pursuant to
section 46-15 or housing developed pursuant to chapter 201H if the cost of the
project is less than $500,000 and the eligible bidder or eligible developer is
a private nonprofit corporation.



For the purposes of this subsection:



"Contract" includes but is not
limited to any agreement, purchase order, or voucher in excess of $2,000 for
construction of a public work project.



"Governmental contracting agency"
includes any person or entity that causes either directly or indirectly the
building or development of a public work.



"Party" includes eligible bidders for
and eligible developers of any public work and any housing under chapter 201H;
provided that this subsection shall not apply to any housing developed under
section 46-15 or chapter 201H if the entire cost of the project is less than
$500,000 and the eligible bidder or eligible developer is a private nonprofit
corporation.



"Public work" means any project,
including development of any housing pursuant to section 46-15 or chapter 201H
and development, construction, renovation, and maintenance related to
refurbishment of any real or personal property, where the funds or resources
required to undertake the project are to any extent derived, either directly or
indirectly, from public revenues of the State or any county, or from the sale
of securities or bonds whose interest or dividends are exempt from state or
federal taxes.



(b)  Every laborer and mechanic performing work
on the job site for the construction of any public work project shall be paid
no less than prevailing wages; provided that:



(1)  The prevailing wages shall be established by the
director as the sum of the basic hourly rate and the cost to an employer of
providing a laborer or mechanic with fringe benefits.  In making prevailing
wage determinations, the following shall apply: 



(A)  The director shall make separate findings
of:



(i)  The basic hourly rate; and



(ii)  The rate of contribution or cost of fringe
benefits paid by the employer when the payment of the fringe benefits by the
employer constitutes a prevailing practice.  The cost of fringe benefits shall
be reflected in the wage rate scheduled as an hourly rate; and



(B)  The rates of wages which the director
shall regard as prevailing in each corresponding classification of laborers and
mechanics shall be the rate of wages paid to the greatest number of those
employed in the State, the modal rate, in the corresponding classes of laborers
or mechanics on projects that are similar to the contract work;



(2)  The prevailing wages shall be not less than the
wages payable under federal law to corresponding classes of laborers and
mechanics employed on public works projects in the State that are prosecuted
under contract or agreement with the government of the United States; and



(3)  Notwithstanding the provisions of the original
contract, the prevailing wages shall be periodically adjusted during the
performance of the contract in an amount equal to the change in the prevailing
wage as periodically determined by the director.



(c)  No laborer or mechanic employed on the job
site of any public work of the State or any political subdivision thereof shall
be permitted or required to work on Saturday, Sunday, or a legal holiday of the
State or in excess of eight hours on any other day unless the laborer or
mechanic receives overtime compensation for all hours worked on Saturday,
Sunday, and a legal holiday of the State or in excess of eight hours on any
other day.  For purposes of determining overtime compensation under this
subsection, the basic hourly rate of any laborer or mechanic shall not be less
than the basic hourly rate determined by the director to be the prevailing
basic hourly rate for corresponding classes of laborers and mechanics on
projects of similar character in the State.



(d)  The contractor or the contractor's
subcontractor shall pay all mechanics and laborers employed on the job site,
unconditionally and not less often than once a week, and without deduction or
rebate on any account, except as allowed by law, the full amounts of their
wages including overtime, accrued to not more than five working days prior to
the time of payment, at wage rates not less than those deemed to be prevailing,
regardless of any contractual relationship which may be alleged to exist
between the contractor or subcontractor and the laborers and mechanics.  The
rates of wages to be paid shall be posted by the contractor in a prominent and
easily accessible place at the job site, and a copy of the rates of wages
required to be posted shall be given to each laborer and mechanic employed
under the contract by the contractor at the time each laborer and mechanic is
employed, except that where there is a collective bargaining agreement the
contractor does not have to provide the contractor's employees the wage rate
schedules.



(e)  The governmental contracting agency may
withhold from the contractor so much of the accrued payments as the
governmental contracting agency may consider necessary to pay to the laborers
and mechanics employed by the contractor or any subcontractor on the job site
the difference between the prevailing wages and the wages received and not
refunded by the laborers and mechanics.



(f)  Every contract in excess of $2,000 for
construction of a public work project and the specifications for such contract
shall include provisions that set forth the requirements of subsections (a) to
(e); provided that failure by the contracting agency to include those
provisions in the contract or specifications shall not be a defense of the
contractor or subcontractor for noncompliance with the requirements of this
chapter.



(g)  For any public work project that is
subject to this chapter but not directly caused by a governmental contracting
agency, the director shall be responsible for enforcement of this chapter,
including the collection and maintenance of certified copies of all payrolls
that are subject to this chapter.  The director shall adopt rules pursuant to
chapter 91 to effectuate the purposes of this section.



(h)  When:



(1)  The department of budget and finance enters a
project agreement with a project party, as those terms are defined in chapter
39A, to finance or refinance a project with the proceeds of special purpose
revenue bonds;



(2)  The project party has entered into a collective
bargaining agreement with a bona fide labor union governing the project party's
workforce; and



(3)  The collective bargaining agreement has been
properly submitted to the director under section 104-34,



the terms of the collective bargaining agreement and
associated provisions shall be deemed the prevailing wages and terms serving as
the basis of compliance with this chapter for work on the project by the
project party's workforce; provided that this subsection does not affect the
director's enforcement powers contained in subsection (g). [L 1955, c 133, pt
of §2; RL 1955, §9A-2; am L 1957, c 93, §1; am L 1959, c 27, §1 and c 98, §1;
am L Sp 1959 2d, c 1, §27; am L 1965, c 198, §§1, 2; HRS §104-2; gen ch 1985;
am L 1987, c 288, §3; am L 1990, c 294, §2; am L 1992, c 281, §2; am L 1997, c
350, §15; am L 2002, c 215, §3; am L 2005, c 229, §1; am L 2007, c 61, §2 and c
249, §11; am L Sp 2009, c 16, §1]



 



Cross References



 



  General authority of labor and industrial relations
department, see §26-20.



 



Attorney General Opinions



 



  Chapter 104 applied to the county of Hawaii's Waikoloa
employee housing project pursuant to §46-15.01 and the plain language of this
section.  Att. Gen. Op. 06-1.