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Confirmation of Arrangements document

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    Confirmation of Arrangements document

    A good idea to draft and present a CoA to a senior resource at the end-client to try and frontrun the ESS tool? Are they still used as I haven't seen much written about them recently?

    The idea would be to get the most senior end-client rep (preferably Director or Head of) who has personal knowledge of your working practices, to sign off on the CoA. When the ESS tool is release it may be completed by HR or Legal in most cases due to the risks involved,and if so, and it works out badly, you can argue that the CoA takes precedence. Why wouldn't it if it was signed by someone closest to the the facts?

    Of course you might be met with refusal to sign and a lot depends on the governance in place at the end-client and your relationships with the senior resources there, but I think it is worth a shot. I can't see any downside in asking but wanted to post here in case I am missing something.

    Template can be found here: https://www.qdoscontractor.com/ir35/ir35-resources

    #2
    I really don't understand your posts. They appear to start of as a question and then almost end as a statement of fact.

    Confirmation of Arrangements are a decent idea for any contract not just PS and it's been done plenty on here so possibly for the main part of the forum.

    They are notoriously difficult to get signed the people that know your working practices are not in a position to sign anything for the client and the ones that are don't know your working practices. Get it slightly wrong and it's not worth much.

    One other thing just to be mindful of is Right of substitution. If the client isn't actually happy with RoS even though it's in the contract you might blow your own defense if you ask them and they say no. You can use RoS as a defense even if you haven't used it but you believe they would. If you know they won't it means you know the clause is a sham. Sometimes it might be better not knowing possibly?

    Plenty of threads on them here.
    https://www.google.co.uk/search?q=co...obile&ie=UTF-8
    Last edited by northernladuk; 16 February 2017, 02:56.
    'CUK forum personality of 2011 - Winner - Yes really!!!!

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      #3
      Originally posted by northernladuk View Post
      I really don't understand your posts. They appear to start of as a question and then almost end as a statement of fact.
      I'm not a regular forumite so apologies if my posts are hard to follow. To me they make sense and I am surprised at any confusion. What is wrong with posing a question, then going on to give a personal viewpoint therefore inviting discussion?

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        #4
        Originally posted by northernladuk View Post

        One other thing just to be mindful of is Right of substitution. If the client isn't actually happy with RoS even though it's in the contract you might blow your own defense if you ask them and they say no. You can use RoS as a defense even if you haven't used it but you believe they would. If you know they won't it means you know the clause is a sham. Sometimes it might be better not knowing possibly?
        I see your point but I would rather not be surprised. This is one of the reasons why I would like to front-run the ESS tool. I am through a PSC which has a contract with a recruitment agency and I have no sight of their master agreement with the end-client. If I go to my end-client with a CoA and they say "what do you mean substitution?" I believe I would be entitled to end the contract immediately, claim conflict or other mistake in the commercial contract chain and withdraw before the ESS tool comes out and they run it.
        Last edited by breaktwister; 16 February 2017, 10:32.

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          #5
          Originally posted by breaktwister View Post
          I see your point but I would rather not be surprised. This is one of the reasons why I would like to front-run the ESS tool. I am through a PSC which has a contract with a recruitment agency and I have no sight of their master agreement with the end-client. If I go to my end-client with a CoA and they say "what do you mean substitution?" I believe I would be entitled to end the contract immediately, claim conflict or other mistake in the commercial contract chain and withdraw before the ESS tool comes out and they run it.
          I, on the other hand, am not. Your contract with the agency is nothing to do with their contract with their customer. OK, there may well be conflicting clauses in between the two - in fact there are in almost all contracts since they are serving different purposes - but that of itself does not void either one. The whole point of a CoA is to document the actual working practices on the ground in the event that such a contradiction appears in a case

          And from there it follows that line management won't be allowed to sign them because they will inevitably conflict with the negotiated client/agency contract agreed with the client's procurement team, who in turn will talk to Human Remains rather than the line manager to determine who does what under what circumstances.

          So if you want out, start negotiating. Fighting the contract simply won't work
          Blog? What blog...?

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            #6
            The only way to agree on an understanding of working practices is to have a conversation about this with the most senior person that you can get hold of.

            Obvious problems with conflict between the most appropriate person possibly not being senior enough and a senior enough person not having knowledge of your working practices have been well documented.

            Don't forget though, it is the right to substitute, not the fact of ever having done it, which is the pertinent fact here. In this way, working practices can't take precedence over the contract.

            Actual working practices that may help though will most likely relate to supervision, direction and control. These are certainly areas that you can discuss and document and should do so in preparation for future conversations about your status.

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              #7
              Originally posted by Patrick@Intouch View Post
              Don't forget though, it is the right to substitute, not the fact of ever having done it, which is the pertinent fact here. In this way, working practices can't take precedence over the contract.
              In Autoclenz the Court of Appeal said "only one party need to claim that a clause in the contract does not reflect their intentions in order for the clause to be considered a sham".

              Autoclenz Ltd vs Belcher & Ors (2009) - Brookson Ltd

              The danger is that, even though a PSC contract with an agency might allow for substitution, the PSC does not know what is in that master agreement between agency and end-client, and regardless of what it actually says, if the end-client decides that it was not really their intention the clause could be regarded as a sham.

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                #8
                Originally posted by breaktwister View Post
                In Autoclenz the Court of Appeal said "only one party need to claim that a clause in the contract does not reflect their intentions in order for the clause to be considered a sham".
                To me this seems to be a position relevant to employment law only. It cannot possibly be the case in general contract law that one party can simply say "well I didn't really intend that" to escape their obligations under the contract.

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                  #9
                  Originally posted by breaktwister View Post
                  In Autoclenz the Court of Appeal said "only one party need to claim that a clause in the contract does not reflect their intentions in order for the clause to be considered a sham".
                  Sorry for the multiple posts but I would also like to say that sometimes the Court makes statements that are really only applicable to the unique facts of the case before them and cannot be taken as a general statement to be applied to any and all cases. I'm going to have to dig out the actual Court transcripts of this case to consider the quoted statement.

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                    #10
                    Originally posted by Patrick@Intouch View Post
                    The only way to agree on an understanding of working practices is to have a conversation about this with the most senior person that you can get hold of.
                    Conversation isn't enough. It doesn't protect you if they put something contradictory into the ESS. CoA needs to be signed or the contract cancelled IMO.

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