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New agency regs

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    #11
    I would find it strange that the client was insisting you opt out-it is not their decision to make. The agency isn't allowed to pressure you into opting out, so how can the client get away with it?

    Anyone know?

    Comment


      #12
      yes, can't see what it is to do with the client. They don't need to know, just tell them that you've opted out even if it's not true. Absolutely nothing to do with them. I guess they may be asking cos' they've got a cosy little relationship with the agency....

      Comment


        #13
        Re:deciding NOT to pay you

        "if you opt out you have no come back if they decide NOT to pay you"

        I don't understand this claim one little bit.

        You are signing a business to business contract for the supply of, in this case, some of your time.

        A contract requires both parties to agree to make a 'consideration'. The contractor's consideration is (usually) their time, the agency's consideration is 'payment'. If there is no contractual right to payment, the contract is void for lack of consideration.

        But my suggesting that there is no contract is silly, of course there is a contract, so there must be a right to payment (or some other consideration).

        The contract may (or it may not) contain specific reasons why you might not get paid. But in the absence of meeting these *previously* *agreed* contractual conditions the contractor has the full right to be paid and can pursue that right through the courts.

        This is exactly the same as the opted-in contractor will have to do if he is not paid. The exception being that the contractual conditions that payment will be withheld if (a) the contractor does not supply the necessary signed timesheet or other arbitrary documentation or (b) if the client hasn't paid the agency, are void if they appear in the contract. But other reasons for non payment (such as, if what you deliver doesn't work) may (only may) still be valid.

        What is the effect of the non allowed clauses.
        (a) there is legal opinion (in one of Egos' FI articles: www.egos.co.uk/Freelanc/freelanc.htm, can't be bothered to look up which one:-() that such a clause would not stand to scrutiny if challenged in the courts. You have done the work, you've delivered the goods, withholding payment for not delivering a signed timesheet appears to be an arbitrary fine for breach of contract out of proportion with the actual breach and as such is thus void.

        (b) This is will probably not stand up to legal scrutiny either, but the far easier way is simply to refuse to accept it in the contract in the first place. You simply do not want to do business with an agency that insists on such a clause, opted in or not.

        tim

        Comment


          #14
          Re: What's opting out got to do with the @#%$

          Dunno either,

          ut the legal view appears to be that they have the right to insist on only deaing with opted out contractors if they should so decide.

          If they do this, there's zip all that you can do to stop them.

          tim

          Comment


            #15
            Re: What's opting out got to do with the @#%$

            Absolute and utter waddle Tim. Its the agents that are wanting you to opt out not the client. Whether you are opted out or in makes no difference what so ever to the client.

            IF the agent is addiment this is the case then get them to put that in writing.

            Under the new regs there are specific provisions that prohibit agencies from with holding pay from you. If you opt out you will lose this protection and it will probably cost you more than the money being with held to get it back off the dodgy bastards should they not pay you.

            The regs also state that any money paid MUST be paid to you within 10 days and that they cannot make something like signed sheets a condition of being paid.

            Once again...you would be a fool to opt out of a contract.

            Mailman

            Comment


              #16
              Re: What's opting out got to do with the @#%$

              1) I did not say that the clients were insisting on opted out candidates only. Claire said it 5 posts before. All I did was copied it. I agree it is possibly not true, but that is not the point I was making.

              2) I agree, your rights to force payment are (slightly) stronger if you opt-in. This is a very very very long way from "opted out you have no come back if they decide not to pay you". A right to be paid after 10 days is worthless if they decide just not to pay you, you still have to go to court to get your money. In any case you've mis-read, the right to payment "is no more than 10 days after the agency have received it", but as they will be paid on 30, 60 or 90 days this is useless to most people. You will want to have contractual rights to payment long before the agency have been paid, opted in or out.

              There are good reasons to be opted in: you get some nanny clauses in your contract and some certainty that the job really exists (I wish that I could opt of the rest and keep this)at the expense of the agency being REQUIRED to validate my suitability for the job before being put forward, this not unreasonably IMO equate to the agency following up your references.

              There are good reasons to be opted-out. The agency have lower costs and less risk, so they should pay me more. Whether such an expectation is workable in the real world I do not know.

              tim

              Comment


                #17
                Re: What's opting out got to do with the @#%$

                Actually...you dont have to go to court. Your one and only call might be to the Department of Trade and Industry who regulate agents.

                Mailman

                ps. Ok...the absolute utter waddle was for Claire

                Comment


                  #18
                  Re: What's opting out got to do with the @#%$

                  Er, thanks for all your opinions. I understand that agencies are not allowed to insist that I opt out. However in this case, they state that their client is insisting on it. Either way, I'm tempted not to go for it. The contract isn't a definite anyway, and they want me to get PI Insurance, which I don't believe I need for the type of work I do. Best to cut my losses and put my efforts into getting other contracts I think.

                  Thanks anyway. This is the first time I've used this site, and it's been very helpful, and quick responses too.

                  Comment


                    #19
                    Response to clairenw

                    Some of the reasons I steer clear of contractors are stated in an earlier response above.

                    The other reasons are:-

                    1)Hassle over IR35 and agency regs.
                    2)Total lack of respect from both clients and contractors who see you as a pointless parasite.
                    3)Too much money required up front to pay the contractor.
                    4)Not enough profit for the risk.
                    5)Too much insistence on the agency staying in the loop rather than just taking a single fixed fee.

                    The list is almost endless.

                    Placing permies is much more pleasant particularly when you interview them as I do.
                    Clients see the value.
                    Permies are generally respectful.
                    Fees are fixed and one-off.

                    As tim123 says, I also am very skeptical about placing contractors in permy positions for very good reasons but that is quite another subject

                    Comment


                      #20
                      Re: New agency regs - YUP

                      I was with an agency for 18 months quite happily (c*mputer-pe*ple in dublin), then a new agent turned up and the relationship turned pear-shaped

                      Her attitude sucked when I asked for some simple IR35 friendly clauses added to the contract extension...none of this was done, and it was one excuse after another

                      A short time later she declared that my contract was not being extended, even though the support role I was performing in dublin clearly still needed to be performed. But by this time I had enough, and was happy to leave...

                      After leaving, I found that my last 2 signed and faxed timesheets, had not been paid. When enquiring about these I was sent the following...

                      "I have made several attempts to contact you both by telephone and by email.
                      I have received information that you are still on site. Until you clarify the situation I cannot release payment"

                      Despite not having been contacted at all, I patiently explained EAR in detail, and warned of legal action if payments continued to be witheld. Remember it was the agency that stated the contract was not to be extended.

                      Despite tantilising promises of payment, tempered with phrases like

                      "Thanks I'll forward to our legal department. Where are you now working?
                      Grainne"

                      I have not received payment, so will be letting loose with the DTI employment agency regulatory team, and legal action on monday (2+ months after the contract ended)

                      BTW I haven't signed a new contract, as having worked my *ss off for these blood suckers for 2 years, I wanted some time at home !

                      Comment

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