§104-2  Applicability; wages, hours, andother requirements.  (a)  This chapter shall apply to every contract inexcess of $2,000 for construction of a public work project to which agovernmental contracting agency is a party; provided that this chapter shallnot apply to experimental and demonstration housing developed pursuant tosection 46-15 or housing developed pursuant to chapter 201H if the cost of theproject is less than $500,000 and the eligible bidder or eligible developer isa private nonprofit corporation.

For the purposes of this subsection:

"Contract" includes but is notlimited to any agreement, purchase order, or voucher in excess of $2,000 forconstruction of a public work project.

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

"Party" includes eligible bidders forand eligible developers of any public work and any housing under chapter 201H;provided that this subsection shall not apply to any housing developed undersection 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 nonprofitcorporation.

"Public work" means any project,including development of any housing pursuant to section 46-15 or chapter 201Hand development, construction, renovation, and maintenance related torefurbishment of any real or personal property, where the funds or resourcesrequired to undertake the project are to any extent derived, either directly orindirectly, from public revenues of the State or any county, or from the saleof securities or bonds whose interest or dividends are exempt from state orfederal taxes.

(b)  Every laborer and mechanic performing workon the job site for the construction of any public work project shall be paidno less than prevailing wages; provided that:

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

(A)  The director shall make separate findingsof:

(i)  The basic hourly rate; and

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

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

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

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

(c)  No laborer or mechanic employed on the jobsite of any public work of the State or any political subdivision thereof shallbe permitted or required to work on Saturday, Sunday, or a legal holiday of theState or in excess of eight hours on any other day unless the laborer ormechanic receives overtime compensation for all hours worked on Saturday,Sunday, and a legal holiday of the State or in excess of eight hours on anyother day.  For purposes of determining overtime compensation under thissubsection, the basic hourly rate of any laborer or mechanic shall not be lessthan the basic hourly rate determined by the director to be the prevailingbasic hourly rate for corresponding classes of laborers and mechanics onprojects of similar character in the State.

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

(e)  The governmental contracting agency maywithhold from the contractor so much of the accrued payments as thegovernmental contracting agency may consider necessary to pay to the laborersand mechanics employed by the contractor or any subcontractor on the job sitethe difference between the prevailing wages and the wages received and notrefunded by the laborers and mechanics.

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

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

(h)  When:

(1)  The department of budget and finance enters aproject agreement with a project party, as those terms are defined in chapter39A, to finance or refinance a project with the proceeds of special purposerevenue bonds;

(2)  The project party has entered into a collectivebargaining agreement with a bona fide labor union governing the project party'sworkforce; and

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

the terms of the collective bargaining agreement andassociated provisions shall be deemed the prevailing wages and terms serving asthe basis of compliance with this chapter for work on the project by theproject party's workforce; provided that this subsection does not affect thedirector's enforcement powers contained in subsection (g). [L 1955, c 133, ptof §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, c350, §15; am L 2002, c 215, §3; am L 2005, c 229, §1; am L 2007, c 61, §2 and c249, §11; am L Sp 2009, c 16, §1]

 

Cross References

 

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

 

Attorney General Opinions

 

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