more of a legal rather than financial Q

[TheFaQQer]

Agencies such a Rullion, Manchester will not submit you for roles if you state you will not be opting out.

Your choice is to either walk or be submitted. Not an easy choice when the market is 'competitive.'

They are breaking the law. Not much you can do about it, but that would be illegal.

[TykeMerc]

They are breaking the law. Not much you can do about it, but that would be illegal.

The law's meaningless, as you know it's absurdly easy for them to hide their refusal to consider if you fail to Opt Out, now if only the morons that arranged that damn Opt Out would admit it was a cluster of things beginning with F and try to get it removed it would at least feel like some headway is made.

[tractor]

...

The law's meaningless as you know it's absurdly easy for them to hide their refusal to consider if you fail to Opt Out, now if only the morons that arranged that damn Opt Out would admit it was a cluster of things beginning with F and try to get it removed it would at least feel like some headway is made.

It won't be removed. There has been a consultation on it already and when the amended legislation is passed next Parliament, they have said they are going to keep it.

You can of course still rescind the opt out 5 mins before you arrive on site for the first time IIRC

Most agents are blissfully unaware anyway that the majority of opt outs are not compliant because of the way they are executed (we all know what that means), but if you sign a contract with a clause that they are unable to enforce when not opted out, there is no precedent yet so liability is a little up in the air. I think legal consensus is atm that any such clause would be unenforceable.

[TykeMerc]

That may well be the case, but since agents like to include Opt Out terms in the contracts too, signing one when you know full well you've no intention of upholding the terms isn't far short of fraud.
If it came to a court case I'd want every scrap of high ground possible, revealing that I'd signed the contract in bad faith would certainly harm that.

[Safe Collections]

As far as "pay when paid" clauses go, our advice is always to negotiate their removal irrespective of your opt out status.

Yes, if you don't opt out the law states that you must be paid for the work you do. However we have seen instances when an opted in contractor has still been left facing a legal claim to recover payment, as the agency believes they can rely on the clause anyway.

If you are opted out then signing a contract with this clause severely disadvantages your company in the event of non-payment. This can be further compounded if you have no contact/confidentiality clause barring you from unauthorised contact with the ultimate end client, as this means you can not confirm if payment has been made to the agency without breaching the contract.

Ultimately you could try and argue the clause is unfair and therefore unenforceable, but you will have to issue proceedings at your own cost to do so.