To repeal sections 290.210, 210.220, 290.250, 290.260, 290.262, 290.270, 290.320, and 290.325, RSMo 1994, relating to the prevailing wage, and to enact in lieu thereof eight new sections relating to the same subject.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF MISSOURI, AS FOLLOWS:

Section A. Sections 290.210, 210.220, 290.250, 290.260, 290.262, 290.270, 290.320, and 290.325, RSMo 1994, are repealed and eight new sections enacted in lieu thereof, to be known as sections 290.210, 290.220, 290.250, 290.260, 290.262, 290.270, 290.320, and 290.325, to read as follows:

290.210. As used in sections 290.210 to 290.340, unless the context indicates otherwise, the following terms mean:

(1) "Construction" includes construction, reconstruction, improvement, enlargement, alteration, painting and decorating, or major repair[.];

(2) "County commission", the governing body of the county in which the work or construction of the public works is being performed;

[(2)] (3) "Department" [means], the department of labor and industrial relations[.];

[(3)] (4) "Locality" [means], the county where the physical work upon public works is performed, except that if there is not available in the county a sufficient number of competent skilled [workmen] workers to construct the public works efficiently and properly, "locality" may include two or more counties adjacent to the one in which the work or construction is to be performed and from which such workers may be obtained in sufficient numbers to perform the work, and that, with respect to contracts with the state highways and transportation commission, "locality" may be construed to include two or more adjacent counties from which [workmen] workers may be accessible for work on such construction[.];

[(4)] (5) "Maintenance work" [means], the repair, but not the replacement, of existing facilities when the size, type or extent of the existing facilities is not [thereby] changed or increased[.];

[(5)] (6) "Prevailing hourly rate of wages" [means], the wages paid generally, in the locality in which the public works is being performed, to [workmen] workers engaged in work of a similar character including the basic hourly rate of pay and the amount of the rate of contributions irrevocably made by a contractor or subcontractor to a trustee or to a third person pursuant to a fund, plan or program, and the amount of the rate of costs to the contractor or subcontractor which may be reasonably anticipated in providing benefits to [workmen] workers and mechanics pursuant to an enforceable commitment to carry out a financially responsible plan or program which was communicated in writing to the [workmen] workers affected, for medical or hospital care, pensions on retirement or death, compensation for injuries or illness resulting from occupational activity, or insurance to provide any of the foregoing, for unemployment benefits, life insurance, disability and sickness insurance, accident insurance, for vacation and holiday pay, for defraying costs of apprenticeship or other similar programs, or for other bona fide fringe benefits, but only where the contractor or subcontractor is not required by other federal or state law to provide any of the benefits; provided, that the obligation of a contractor or subcontractor to make payment in accordance with the prevailing wage determinations of the [department] county commission, insofar as sections 290.210 to 290.340 are concerned, may be discharged by the making of payments in cash, by the making of irrevocable contributions to trustees or third persons as provided [herein] in sections 290.210 to 290.340, by the assumption of an enforceable commitment to bear the costs of a plan or program as provided [herein] in sections 290.210 to 290.340, or any combination thereof, where the aggregate of such payments, contributions and costs is not less than the rate of pay plus the other amounts as provided [herein.] in sections 290.210 to 290.340;

[(6)] (7) "Public body" [means], the state of Missouri or any officer, official, authority, board or commission of the state, or other political subdivision thereof, or any institution supported in whole or in part by public funds[.];

[(7)] (8) "Public works" [means], all fixed works constructed for public use or benefit or paid for wholly or in part out of public funds. It also includes any work done directly by any public utility company when performed by it pursuant to the order of the public service commission or other public authority whether or not it be done under public supervision or direction or paid for wholly or in part out of public funds when let to contract by [said] the utility. It does not include any work done for or by any drainage or levee district[.];

[(8)] (9) "Workers" or "Workmen" [means], laborers, [workmen] workers and mechanics.

290.220. [It is hereby declared to be the policy of the state of Missouri that a] No wage [of no] less than the prevailing hourly rate of wages as determined by the county commission for work of a similar character in the locality in which the work is performed shall be paid to [all workmen] any worker employed by or on behalf of any public body engaged in public works exclusive of maintenance work.

290.250. Every public body authorized to contract for or construct public works, before advertising for bids or undertaking such construction shall request the [department] county commission to determine the prevailing rates of wages for [workmen] workers for the class or type of work called for by the public works, in the locality where the work is to be performed. The [department] county commission shall determine the prevailing hourly rate of wages in the locality in which the work is to be performed for each type of [workman] worker required to execute the contemplated contract and such determination or schedule of the prevailing hourly rate of wages shall be attached to and made a part of the specifications for the work. The public body shall then specify in the resolution or ordinance and in the call for bids for the contract, what is the prevailing hourly rate of wages in the locality for each type of [workman] worker needed to execute the contract and also the general prevailing rate for legal holiday and overtime work. It shall be mandatory upon the contractor to whom the contract is awarded and upon any subcontractor under [him] such contractor, to pay not less than the specified rates to all [workmen] workers employed by them in the execution of the contract. The public body awarding the contract shall cause to be inserted in the contract a stipulation to the effect that not less than the prevailing hourly rate of wages shall be paid to all [workmen] workers performing work under the contract. It shall also require in all contractor's bonds that the contractor include such provisions as will guarantee the faithful performance of the prevailing hourly wage clause as provided by contract. The contractor shall forfeit as a penalty to the state, county, city and county, city, town, district or other political subdivision on whose behalf the contract is made or awarded ten dollars for each [workman] worker employed, for each calendar day, or portion thereof, such [workman] worker is paid less than the [said] stipulated rates for any work done under [said] such contract, by [him] such contractor or by any subcontractor under [him] such contractor, and the [said] public body awarding the contract shall cause to be inserted in the contract a stipulation to this effect. It shall be the duty of such public body awarding the contract, and its agents and officers, to take cognizance of all complaints of all violations of the provisions of sections 290.210 to 290.340 committed in the course of the execution of the contract, and, when making payments to the contractor becoming due under [said] the contract, to withhold and retain therefrom all sums and amounts due and owing as a result of any violation of sections 290.210 to 290.340. It shall be lawful for any contractor to withhold from any subcontractor under [him] such contractor sufficient sums to cover any penalties withheld from [him] the contractor by the awarding body on account of [said] the subcontractor's failure to comply with the terms of sections 290.210 to 290.340, and if payment has already been made to [him] the contractor, the contractor may recover from [him] the subcontractor the amount of the penalty in a suit at law.

290.260. 1. For the purposes of public works projects for the Missouri state highways and transportation department, the department, as it deems necessary, shall from time to time investigate and determine the prevailing hourly rate of wages in the localities. A determination applicable to every locality to be contained in a general wage order shall be made annually on or before July first of each year for the Missouri state highways and transportation commission and shall remain in effect until superseded by a new general wage order. In determining prevailing rates, the department shall ascertain and consider the applicable wage rates established by collective bargaining agreements, if any, and the rates that are paid generally within the locality.

2. A certified copy of the determination so made shall be filed immediately with the secretary of state and with the department in Jefferson City. Copies shall be supplied by the department to all persons requesting them within ten days after the filing.

3. At any time within thirty days after the certified copies of the determinations have been filed with the secretary of state and the department, any person who is affected thereby may object in writing to the determination or the part thereof that [he] the person deems objectionable by filing a written notice with the department, stating the specific grounds of the objection.

4. Within thirty days of the receipt of the objection, the department shall set a date for a hearing on the objection. The date for the hearing shall be within sixty days of the receipt of the objection. Written notice of the time and place of the hearing shall be given to the objectors at least ten days prior to the date set for the hearing.

5. The department at its discretion may hear each written objection separately or consolidate for hearing any two or more written objections. At the hearing the department shall first introduce in evidence the investigation it instituted and the other facts which were considered at the time of the original determination which formed the basis for its determination. The department, or the objector, or any interested party, thereafter may introduce any evidence that is material to the issues.

6. Within twenty days of the conclusion of the hearing, the department must rule on the written objection and make the final determination that it believes the evidence warrants. Immediately, the department shall file a certified copy of its final determination with the secretary of state and with the department and shall serve a copy of the final determination on all parties to the proceedings by personal service or by registered mail.

7. This final decision of the department of the prevailing wages in the locality is subject to review in accordance with the provisions of chapter 536, RSMo. Any person affected, whether or not the person participated in the proceedings resulting in the final determination, may have the decision of the department reviewed. The filing of the final determination with the secretary of state shall be considered a service of the final determination on persons not participating in the administrative proceedings resulting in the final determination.

8. At any time before trial any person affected by the final determination of the department may intervene in the proceedings to review under chapter 536, RSMo, and be made a party to the proceedings.

9. All proceedings in any court affecting a determination of the department under the provisions of sections 290.210 to 290.340 shall have priority in hearing and determination over all other civil proceedings pending in the court, except election contests.

290.262. 1. Except as otherwise provided in section 290.260, the [department] county commission shall annually investigate and determine the prevailing hourly rate of wages in [each] the locality for each separate occupational title. A final determination applicable to [every] the locality to be contained in an annual wage order shall be made annually on or before July first of each year and shall remain in effect until superseded by a new annual wage order or as otherwise provided in this section. In determining prevailing rates, the [department] county commission shall ascertain and consider the applicable wage rates established by collective bargaining agreements, if any, and the rates that are paid generally within the locality, and shall, by March tenth of each year, make an initial determination for each occupational title within the locality.

2. A certified copy of the initial determinations so made shall be filed immediately with the secretary of state and with the department in Jefferson City. Copies shall be supplied by the department to all persons requesting them within ten days after the filing.

3. At any time within thirty days after the certified copies of the determinations have been filed with the secretary of state and the department, any person who is affected thereby may object in writing to a determination or a part thereof that [he] the person deems objectionable by filing a written notice with the [department] county commission, stating the specific grounds of the objection. If no objection is filed, the determination is final after thirty days.

4. After the receipt of the objection, the [department] county commission shall set a date for a hearing on the objection. The date for the hearing shall be within sixty days of the receipt of the objection. Written notice of the time and place of the hearing shall be given to the objectors at least ten days prior to the date set for the hearing.

5. The [department] county commission at its discretion may hear each written objection separately or consolidate for hearing any two or more written objections. At the hearing the [department] county commission shall first introduce in evidence the investigation it instituted and the other facts which were considered at the time of the original determination which formed the basis for its determination. The [department] county commission, or the objector, or any interested party, thereafter may introduce any evidence that is material to the issues.

6. Within twenty days of the conclusion of the hearing, the [department] county commission shall rule on the written objection and make the final determination that it believes the evidence warrants. Immediately, the [department] county commission shall file a certified copy of its final determination with the secretary of state and with the department and shall serve a copy of the final determination on all parties to the proceedings by personal service or by registered mail.

7. This final decision of the [department] county commission of the prevailing wages in the locality for each occupational title is subject to review in [accordance with the provisions of chapter 536, RSMo] the circuit court. Any person affected, whether or not the person participated in the proceedings resulting in the final determination, may have the decision of the [department] county commission reviewed. The filing of the final determination with the secretary of state shall be considered a service of the final determination on persons not participating in the [administrative] proceedings resulting in the final determination.

8. [At any time before trial any person affected by the final determination of the department may intervene in the proceedings to review under chapter 536, RSMo, and be made a party to the proceedings.

9.] Any annual wage order made for a particular occupational title in a locality may be altered once each year, as provided in this subsection. The prevailing wage for each such occupational title may be adjusted on the anniversary date of any collective bargaining agreement which covers all persons in that particular occupational title in the locality in accordance with any annual incremental wage increases set in the collective bargaining agreement. If the prevailing wage for an occupational title is adjusted pursuant to this subsection, the employee's representative or employer in regard to such collective bargaining agreement shall notify the [department] county commission of this adjustment, including the effective date of the adjustment. The adjusted prevailing wage shall be in effect until the next final annual wage order is issued pursuant to this section. The wage rates for any particular job, contracted and commenced within sixty days of the contract date, which were set as a result of the annual or revised wage order, shall remain in effect for the duration of that particular job.

10. In addition to all other reporting requirements of sections 290.210 to 290.340, each public body which is awarding a contract for a public works project shall, prior to beginning of any work on such public works project, notify the department, on a form prescribed by the department, of the scope of the work to be done, the various types of craftsmen who will be needed on the project, and the date work will commence on the project.

290.270. The finding of the [department] county commission ascertaining and declaring the prevailing hourly rate of wages shall be final for the locality, unless reviewed under the provisions of sections 290.210 to 290.340. Nothing in sections 290.210 to 290.340, however, shall be construed to prohibit the payment to any [workman] worker employed on any public work of more than the prevailing rate of wages. Nothing in sections 290.210 to 290.340 shall be construed to limit the hours of work which may be performed by any [workman] worker in any particular period of time.

290.320. No public body, officer, official, member, agent or representative authorized to contract for public works shall fail, before advertising for bids or contracting for such construction, to have the [department] county commission determine the prevailing rates of wages of [workmen] workers for each class of work called for by the public works in the locality where the work is to be performed as provided in sections 290.210 to 290.340.

290.325. No public body, officer, official, member, agent or representative thereof authorized to contract for public works shall award a contract for the construction of such improvement or disburse any funds on account of the construction of such public improvement, unless such public body has first had the [department] county commission determine the prevailing rates of wages of [workmen] workers for the class of work called for by such public works in the locality where the work is to be performed and such determination has been made a part of the specifications and contract for such public works.