The law and management of building subcontracts
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With school finance, healthcare, infrastructure funding and Hurricane Harvey recovery looming large on the horizon, this legislative session will present unique fiscal challenges — and also great opportunities — to ensure Texas remains strong and prosperous. To name a few: Continue Reading. Originally published in Build Houston magazine. Co-author: Catherine Chlebowski. The business of construction is a day to day adventure fraught with peril and liabilities dangerous enough to put many construction firms out of business.
The Law and Management of Building Subcontracts
Given that reality, it is imperative that contractors properly structure the legal entities that provide the fortresses to protect their assets. While most are familiar with the limited liability company LLC and limited partnership LP set ups, many have no familiarity with series limited liability companies Series LLC. Continue Reading.
In October , the Antitrust Division of the U. Department of Justice DOJ issued guidance identifying poaching agreements and wage-fixing agreements as primary antitrust enforcement targets. In a market where skilled labor is in increasingly high demand, and the price of labor continues to rise, scrutiny of employment-related agreements is also on the rise. Industries facing skilled labor shortages are natural targets of DOJ scrutiny, the construction industry is no exception. Since at least , Flood, Fire, Famine and Pestilence have ravaged the construction workforce across America.
In the downturn, many workers left the industry never to return. Others left the U. When non-payment occurs, suppliers and service providers often first seek relief by suing for breach of contract. Even if one is signed, the guarantors may lack assets, perhaps deliberately so. Judgement proof debtors and guarantors are especially frustrating when the case involves misappropriations of construction project funds or wrongful transfers of assets.
Whatever your political views, undocumented workers and the businesses that knowingly or unknowingly employ them have been under the microscope since President Trump took office in January According to U. Fewer than two weeks later, Irma would crash into the Florida Keys.
No small part of that amount will be required for cleaning and restoration services. Guarantees of the real estate developer and builder. Guarantees of payment of the borrower related to construction, including real estate obligations. Buildings divided into autonomous units. Fire and transportation of goods relating to entities located in, or transported throughout, Brazil. Export credit, whenever deemed convenient by the National Counsel of Private Insurance. Bodily injury and physical damage to individuals caused by roadway automotive vehicles and vessels, or by their cargo.
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Civil liability of land, maritime, river and lake transporters for damages caused to the cargo. In addition, the following mandatory provisions on insurance specifically relate to the construction industry:. All units of residential buildings must be insured against fire and other casualties that may cause full or partial destruction of the building Article 13, Law No. There is an obligation to purchase performance bond insurance for public services and construction, if so requested in the invitation to bid Article 56, section II, paragraph 1, Law No.
Non-compulsory insurance Contractors and related service providers will usually purchase additional coverage relating to the following:. Engineering risks. Bodily injury and physical damage and life coverage for builder's employees. Coverage for the transportation of equipment to be used in the construction works. It is advisable for companies to be assisted by an insurance broker to assess all risks inherent to a particular project and determine the most suitable coverage. Employment laws What are the main requirements for hiring local and foreign workers?
Assumes the risks for the economic activity. Pays salary and directs the rendering of personal services. The employee renders non-occasional services to an employer, under his or her direction, and receives a salary Article 3, CLT. Brazilian law does not require the execution of a written employment contract. However, to eliminate any possible doubts relating to conditions of employment, companies usually execute written employment contracts with employees, which establish all the rights and duties to be performed by the parties.
In some situations, such as for temporary workers, a written contract is mandatory. The employment relationship can be permanent or temporary that is, when the employment is valid for a pre-fixed period, for the execution of specific services or for a specific upcoming and pending event. The temporary employment relationship cannot be valid for a period longer than two years and can be executed in any of the following circumstances:.
It is a contract for a probation period a maximum period of 90 days, after which the relationship automatically becomes permanent. The fixed period is justified by the nature of the work or its periodical character. The employment is related to periodical business activities. Foreign workers Brazilian law applies to all work performed in Brazil, even when the employee works for a foreign company or is a non-national employee in this case, specific visa regulations apply. It is not possible to override this by specifying a different set of regulations chosen by the parties and included in the employment contract.
Therefore, an employer must provide foreign nationals with equal rights and it is advisable that these employees are included in the local benefits policy. When hiring non-nationals, employers are subject to specific visa regulations. Which employment laws are relevant to projects? Employees' basic labour rights are provided in the Federal Constitution, which also establishes the minimum conditions that must be complied with in employment relationships. The labour rights and minimum conditions are also set out in federal laws and most of them are restated in the Brazilian Labour Code.
In addition, there are mandatory regulations established by means of collective bargaining agreements executed between one or more employers' unions and one or more trade unions representing employees. However, the Brazilian Civil Code governs the relationship between employers and contractors. Up until recently, hiring service providers through an intermediary company was possible as long as they were not involved in the hiring company's core business. This is so because the Superior Labour Court, in Precedent , found that outsourcing a company's core business was illegal.
Nevertheless, on 17 November , Federal Law No. On 30 August , the Supreme Court judged the constitutionality of this law, ratifying the legality of outsourcing a company's core business. Furthermore, Law No. Therefore, if the worker files a labour lawsuit against both its employer and the contractor, regarding any labour right derived from the period in which services were rendered, the contracting party will be liable for the payment of the adverse judgment.
However, under Precedent of the Superior Labour Court, there is no liability in cases involving construction agreements, as long as the constructing services are not related to the main activity of the contractor. This reasoning complies with Federal Laws Nos. Must an employer pay statutory redundancy or other payments at the end of a project?senjouin-renshu.com/wp-content/20/3128-rastrear-celular.php
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Are all employees eligible? Unless provided in collective bargaining agreements which are rare , the law is silent on statutory redundancy in Brazil. Health and safety Which health and safety laws apply to projects? In Brazil, health and safety are among the main concerns in a construction contract and are regulated by the following:. Federal Constitution, which establishes the employee's rights and includes, among others, the reduction of risks inherent to works through compliance with health, hygiene and safety rules.
Administrative rulings Ordinance No. Rules and standards issued by the Brazilian Standards Association. International Labour Organization conventions. The Ministry of Labour and Employment enacted the Normative Resolutions regarding Health and Safety norms, which established rules that must be complied with by employers and employees. The key provisions are as follows:.
The Law and Management of Building Subcontracts (2nd) [Hardcover]
Previous inspection. A company must request a previous inspection by the Ministry of Labour and Employment before starting its activities. Companies hiring more than 50 employees must have SESMET, aiming to promote the protection of health and safety in the workplace. The size of SESMET will vary in accordance with the risk of a company's business established by law and the number of employees. Companies hiring more than 20 employees must have a CIPA, aiming to prevent occupational accident or disease.
The size of the CIPA will vary in accordance with the number of employees. The PCMSO aims to promote and maintain the health of employees, emphasising the clinical and pathological aspects instrumental in addressing the relationship between health and work, from both an individual and collective perspective. The environment risk prevention programme aims to provide consulting services in the assessment and control of environmental risks, such as noise, heat, chemical agents and so on.
Environmental issues Which local laws regulate projects' effects on the environment? Obtaining an environmental licence is mandatory for the construction, installation, enlargement, modification and operation of facilities and activities that use environmental resources or could cause any environmental damage Article 10, Brazilian Environmental Policy - Federal Law No.
Licences are always valid for a specific term and their effectiveness depends on compliance with the technical requirements previously established, which may vary according to the activity and facility. Requirements relating to environmentally sensitive aspects, such as air emissions, water quality, contaminated areas and waste disposal, must also be observed. The technical requirements of these aspects have been outlined in federal rules, some of which are indicated below. However, this is a general federal regulation and each state can establish its own specific regulation on matters such as air emission standards in construction activities.
Water Some of the key local laws on water are:. Federal Law No. Waste Some of the key local laws on waste are:.