court on an action that was brought pursuant to section eleven of the prevailing wage act which provides for a limited cause of action to enforce stipulations between a public body and a contractor to pa court is is really primarily an issue of statute statutory interpretation of the meaning of the stipulation under section eleven of the act and as well it's i with the other portions of the prevailing wage act itself and in particular sections for each of the prevailing wage act which provides for the stipulation dad is required from the public body to a contractor under the prevailing wage act and section four you specifies that the public body obligation to provide a stipulation to pay that the contractor will pay prevailing wages for all work to be performed under the contract and when the public body grant stat stipulation and the contractor agrees pursuant to the stipulation that under the contract the laborers will all be paid at the prevailing wage section eleven provides among many remedies of the prevailing wage act now in this case the circuit court and the appellate court both found that the contracts it issued did not include stipulations and they reached aphasic conclusions about what that meant for purposes of the claim the trial court found that in the absence of the stipulation there is the remedy this provided under section eleven isn't available because it's a limited remedy that's limited to enforcing the stipulation of the claim that's under section eleven by substituting the words out of the statute particularly stipulated rate stipulation in the contract and changing the claim to simply a claim for prevailing wages under section eleven of the act and to allow the leave the case to go forward they erred in doing that i think primarily based on failing to recognize all of the remedies that are otherwise available under the prevailing wage act and like to shift a little bit and talk about some of the background of the case which i think helps alumina eight why we're here today and and the predicament that we're currently facing more landscapes is a landscaping company company they have contracts with the chicago park district that are at issue in this case they are attached to the complaint landscaping is fairly unique under the prevailing wage act because a prevailing wage act speaks to construction projects speaks demolition projects and certainly you can have landscapers who are involved on those types of projects and when they are there to be paid a prevailing wage but there's a whole host of landscaping that can be done for public bodies that doesn't involve construction and does not involve demolition work and doesn't need to be paid at prevailing wage if there's a rd party contractor that's out there moaning the laws of the the ground in front of this court the fact that they would be performing the work for the state of illinois doesn't mean that that contractor needs to be paid at a  need to be paid at prevailing wage in the list things like gardening and they list a number of different that the they talk about you know after a certificate of completion has been issued on on a public work after that any landscaping that occurs after that may not necessarily need to be paid a prevailing wage and so there are categories of work that need to be paid a program which are categories work that don't need to be paid the prevailing wage and so when the park district was preparing its contracts included turf upkeep in the included a number of different tasks that more landscapes are being asked to do for the park as they understood not all of this was going to have to be paid a prevailing wage and so in the agreement they put a clause in that said you need to pay you more landscape's need to pay prevailing wage when you're required to do it and that language differs a very much from the language that's in for eve that would apply if this were public works because for east states that the stipulation would be all the work that's been performed under the contract has to be paid the prevailing wage here in a fact they left it to more landscapes to figure out whether or not they needed to pay the labor at a prevailing wage and and in a fact  that says when a public body states they had prevailing wages need to be paid when required or similar language to what the park district used that's not a stipulation within the meaning of forty and the trial court an appellate court both correctly relied on that f a q document to say the contracts that are in front of us don't include stipulations and the difference between the outcomes really centers around a question of well what does it mean for the labor force do they get paper veiling wage do they not get paid prevailing wage and our position with respect to that is that because there is no stipulation there are effectively in the wrong forum section six of the act provides that the department of stipulate and understanding why was not appropriate interact for the appellate court to substitute in prevailing wage for stipulation you can look at the statute because four g describes the process that the department of labor is supposed to follow when they have been brought in to investigate whether an adverbial wages were paid and one of the key differences between a department of labor investigation and the court's authority under the limited right of action in section eleven is that the department of labor is bringing in the public body and the department of labor can assess and take into account and they're instructed under four g to take into account did the public body fulfill the obligation under for you to include a stipulation in the contract and the remedy that the department of labor was instructed by the legislature to enforce under four g where there's not a stipulation is very different than the that the court is authorized to implement under under section eleven where there is a stipulation because under four g with the legislature said it is when the department of labor finds that the public body did not include a stipulation and didn't include your proper notice or follow the prevailing wage act in providing jobs who stipulation it's the public body that would end up having to pay penalties that would end up possibly having to pay interest and the interest under section eleven dollars is significant as two percent a month the penalties twenty percent under section eleven if this claim were in front of the department of labor more landscape's could certainly point at that point to the f a q and say hey we weren't given the stipulation  patrick we weren't given the stipulation so even if we need to pay the laborers prevailing wage which we don't and we don't agree we do at this point but even let's just say for sake of argument that there was some work and we made a mistake the consequences to more landscapes is radically different if this were a department of labor investigation as opposed to a lawsuit brought under section eleven did what it was supposed to do the public body included in the contract something that says all the work is being done under this agreement has to be paid a prevailing wage what does that do to the case for the contractor wanting the contractor knows that when they submit a bid that the that the public bodies appeared to pay the prevailing wage and now the only standard rate which would be you know in this case subject to a collective bargaining agreement and the landscaper understands that anybody else who's bidding for the work would be bidding at the higher rate and the landscaping makers council the only  landscaping collector association gardening association pointed out that is the difference and it's in the complaint as well the difference here is the pier really doubles more than doubles when we're talking about pain hour pay rate doubles and when you're submitting a bid makes a big difference when you're calculating the labor and eighteen dollars an hour or so is forty dollars an hour so if you have a stipulation that says all the work it will be paid a pre wage you have some confidence that when you submit your bid and say our labor charges are all calculated out of forty one dollars an hour that it will be accepted and understood you're not going to get undercut by somebody else  and so the legislature in creating the limited right over action under section eleven understood that they're dealing with a much narrower of facts than what we have here because what section eleven provides for is a situation where you have a contractor who submitted a bid knowing that all the labor costs would be paid at the prevailing wage understood that the public body was prepared to pay wages that the prevailing wage understood that they agreed to pay prevailing wage possibly i don't know charged the public body at a prevailing rate they were told to so it's certainly possible under some circumstances that the legislature was considering the contractors pay the prevailing wage rate if you've got the employees who are paid at a lower rate at that point the legislature considering that set of circumstances is not present in this case said there are really stringent penalties that are political to a contractor who agreed that they were going to pay program wages did the work based on the green of the room paper real wages and yet didn't pay the guys at the at the prevailing rate and those penalties are twenty percent of the department labor there's two percent interest and there are tourney's fees this case there is there was no stipulation and the facts of this case are very different than what a court would be called upon to look at if their worst asian because it's relatively straightforward to look at a case where there's stipulations and never were supposed to get paid at one rate and they were paid at a different rate in our case when they when the case was filed work that we were doing really should have been paid a prevailing wage well damn those are a set of facts that need to be evaluated by the trial court does a prima wage really apply to these circumstances the know one of the key differences for more landscapes perspective is when the department of labor is investigating there's no attorney fees shifting that would go on and there's a possibility that these penalties wouldn't be of assigned to us they might be assigned to the park district we don't have the section eleven dollars does not provide that type of discretion to the trial court and plan of certainly are here saying well look we're going to forego their you know they are there seeking these pound these are seeking attorneys fees when we never agreed overall they had one hundred percent of the work on these purchaser contracts were going to be paid at the prevailing wage rate now you're basically argument is that the public body dropped the ball well i'm not i'm not going to go so far as to say that because i think the public body is looking at a situation where you know one of the contracts is titled gardening gardening work within the paper the prevailing wage and they may not necessarily the navel to anticipate everything that needed to be done these tree planters who are here bringing their claim their talk thing about situations where trees when and where they don't think they're a disease tree was removed because one of the f a q if you remove the disease train replace it does not pay the prevailing wage if you sell a brand new tree it would be paid a prevailing wage so it may be the case that the park district saying look we evaluated this we don't think prevailing wages apply but if they do it's up to more landscapes to figure out and go ahead and pivot on that necessarily going to point a strong finger at the park district because i you can understand that where there are variables and factual variables about when prevailing wages apply and when they don't which are present in a lot of construction contracts i don't necessarily blame the parties for for the facts in the absence of the stipulation the the remedy to pursue proving wages is with the department of labor is not through a private right of action and i believe that the  and thought that we were trying to get out right deny the claim for prevailing wages all we're saying is it's in the wrong for it it should not be fraud it's an action under section eleven going to start off saying he's in correct on the facts because the only facts that are before this court the ones that were in my verified complaint which i had all twelve of my plaintiff signed and in the affidavits we submitted opposing the motion to dismiss so we looked at the uncontested facts i have twelve plaintiffs who've been employed by more landscape in some cases for many years and some cases only a few years at this point in the chicago park district entered into a contract to do work on public works at this point the contract states the prevailing wage will be paid if applicable listening to moore's argument in which he says well maybe there are situations at this point where the prevailing wage was not to be a point of gardening or something like that that is not a fact before the court because the issue was decided by the trial court simply on the basis at this point it granted a two thousand six  nineteen motion stating that under the statute as it read chapter eleven sectional level at this point that the plaintiffs could not proceed that was the sole point that the trial court made the appellate court looked at it differently at this brief filed by more landscapes it is the public policy of the state of illinois that labor is at this point on public works be paid the prevailing wage section one hundred and thirty dollars dash two states that public works basically includes almost anything that is being worked on at this point section four has been interpreted and that is where it states at this point that the contractor has played a prevailing wage in cases which of gone through this and i cited plant and i cited sakho have held that even when the contractor is not given notice that he has to pay the prevailing wage he still has to pay no ifs or buts about section four also contrary to what determined by the court on review shall be paid to all labor as workers mechanics performing work under the contract section four yet again states the prevailing wage of wages ascertained by the department of labor or determined by the court under review shall be paid to all laborers workers in the town its performing work on the profit so the idea here that the legislature when an act of this statute intended that the department of labor would have exclusive control over this forth that at this point that there is a private right of action which we can undertake and which we could sue and the words came down to the stipulated rate of pay of a contract in this case states the prevailing wages will be position before the court but also took this position in its reply brief it says moore has discretion as to whether it will pay the prevailing wage or not my guys were being paid eighteen dollars an hour the prevailing wage is forty one dollars an hour if war is the sole entity which has discretion or what do you think they're going to do i'd much rather pay eighteen dollars now than forty one dollars an hour or more is effectively same as you're going to disregard the statute disregard what the legislature has stated at this point as far as the public policy the state and that us only more decide whether or not we are going to pay at this point the prevailing wage because of the playing of several private right of action under section love to have the trial court determined in the st instance if and to what extent the prevailing wage administrative remedies it doesn't say at this point that we st have to play go through the department of labor this is not a situation i can compare it personnel with the two over can do agree that there was no stipulation in this country no i don't agree you think there was  is that in certain situations at this point if you're doing landscaping work for example if i'm replacing a disease true right i'm more doesn't have to pay me the prevailing wage if i'm putting in two new trees though around that disease tree in that case i have to pay the prevailing wage and frankly that's what we set forth in our complaint and in our affidavits in opposition to the motion to dismiss so when i look at stipulated rates of pay at this point one ambiguous then given the fact that the public policy of the state of illinois is that the prevailing wage must be paid on all public work projects we have to interpret it not limited really not strictly or not narrowly we have could have been hashed out before the trial court it could have been decided at this point as far as factitious it more comes in and says we did have to pay the prevailing wage because the go all the guy was doing was mowing the lawn or the disease tree or anything along these clients and those are all things that they're not on the hook for section actually this situation is this number one my clients the ones that are being paid twenty three dollars less an hour by more than they should have been so any sympathy for more month fortunately we don't want to go through at this point i find this place but the nd point is this more made the decision at this point what was posted a little more it was supposed to know what the war is as far as paying prevailing wage and i point out at this point in the sackville case we had a sub contractor who was brought on to a job had no knowledge of the prevailing wage at this point said the trial court ruled in that situation it's unfair to make him pay the prevailing wage and frankly in front of the appellate court he got hit and they said tough luck you're supposed to know the law if you're doing work on a public project you're supposed to pay your employees the prevailing wage regardless of the not you knew about it or not is concerned you know more when we have more filed the motion to dismiss it did not try to argue of say at this point this whole issue about going for the court the department of labor did not appear before the trial only in fact before the supreme court because in the trial court it simply said we don't have the sectional levon does not give you a private right of action because of the stipulated rate of pay argument at this point so they don't raise this issue that we were in the wrong form x or the appellate court ruled that our favor at this point that's when this whole argument came up before the supreme court at this point that we don't mind not they'll pay in the prevailing wage but you should have gone in front of the department of labor so this argument as far as the department of labor has basically exclusive jurisdiction only came into play when they went before the illinois supreme court when the appellate court ruled against them there that i just want to emphasize this one thing but the appellate court said was this regardless of whether or not right the contract said prevailing wage regardless of what the park district wanted the more is clear under the statue at this point in effect the contract to not take away the rights at this point of the work is to receive the prevailing wage and frankly you know i'm back to basically going back to the situation this is a two hundred and sixty one line motion which was granted the supreme court affirmed the appellate court all that happens is we go back to the trial court we have our limited right of action if they had defenses saying you didn't really do this at this point you didn't really do that we didn't have to pay the prevailing wage for this we didn't have to pay a railway for that room arrive twelve dollars plaintiffs at this point maybe there are differences in situation that's the type of thing we decide before the trial court we don't say right now you do not entitle to your day in court and that is basically what moore is trying to argue that up one last point is wrong to raise that again i cited section four e aside is section four at both speak in terms of by up the the department of labor you at this point is that we work for more more had contracts with the park district these contracts involve work on public projects we were always paid eighteen dollars an hour we should have been paid forty one dollars an hour and under sectional evan we have the right of action to sue the difference of this quite as any further questions honor st with respect to the complaint that was originally brought i would point out that if you look at paragraph point to a verified complaint things actually agree with our position about agreed with our position on our read of section eleven because in paragraph twenty two of the verify complaint they say that section eleven provides for a limited right of action to enforce a stipulation the illinois department of labor those factions were in front of the court as well those contracts were present as exhibits they were reviewed by the court at the trial court they were reviewed in connection with the f a q document that was provided the department of labor's evaluation of what is a stipulation and they agreed that the stipulations do not exist in any of the three contracts that are in the facts before the trial court i would also disagree that we hadn't raised the issue of where should this case be brought the appellate court's decision reflects that they understood our position that did this claim belongs in front of the department of labor and we certainly noted to both the trial court and of the appellate court that the department of labor has an force in authority that we believe applied because we were citing g of the statute to point out that there's a difference in language in section eleven of the statute when it talks about enforcing stipulations and in four g where the legislature said that the department of labor is required to determine whether or not prevailing wages applied and should have been paid that remedy is what the  court incorrectly inserted in the section eleven score can recognize that had the legislature intended section eleven to provide for a claim simply to enforce whether or not prevailing wages should have been paid they could have used the same language that they used in four g and inserted it into into four into section eleven they didn't do there now as it is it's counsel pointed out we dollar where a laborer can pursue prevailing wages when the legislature said that they can only pursue a stipulation and incorrectly delegated to playing yes the ability to enforce the prevailing wage act in the absence of the stipulation section six provides that the department of labor has brought authority to enforce the statute section eleven that and took out the meaning of what the legislature intended when it said that the plaintiffs could proceed with a claim in even in the absence of a stipulation that is contrary to all canons of construction of statutes it's contrary to the intent of the legislature as evidenced by the fact that in section four g where there's no stipulation you can bring a claim against with the department of labor that the partner of labor has the ability to to allocate who's paying penalties under those circumstances in the way that the trial court's not authorized to do under section  and these changes that the appellate court made cannot stand that the decision should be reversed the trial court's decision should be affirmed this issue is not whether or not look more landscapes have the ability under the contract to pick and choose whether or not to pay prevailing wages it's that they were told that they had to pay prevailing wages to all the work and so when we say that there was discretion it was we were left to figure out whether or not that prevailing wages need to be paid if there is a mistake that can be brought with the department of labor and they can sort it out if the legislature never intended for this case to end up in the circuit in a fact yes because what sectional levon says is that the private right of action is to enforce a stipulation it even speaks to the remedy that the st remedy this available to the plaintiffs in a section eleven claim is that they're paid the difference between the stipulated rate notice they said the stipulated great they didn't say the prevailing wage case of the stipulated rate and the actual rate paid and in the absence of the stipulation you can't have logically you cannot have a stipulated rate and so i'm not necessarily sure it would be you can see the condition proceeding but certainly in the absence of stipulation there is no authorization to bring the claim in from the trial court the remedy is to go to the apartment of labor and ask them to take a look at the situation and determine whether or not prevailing wages should have been paid