Didn't sign "Opt Out" and now agency is refusing to pay me.

[tractor]

...

And the director of the agency will turn around and tell you this was the action of "one rogue agent" and tell you that he has been sent away for reprogramming so he won't do it again. Standard agency bulltulip, everything is deniable and put down to the actions of a minority.

Report the agency to the PCG too because the PCG are the muppets who lobbied to have the opt-out included in the legislation and scored a massive own goal for the freelancers they were trying to protect....

To be fair, at the time it may have seemed the right thing to do. No one knew what effect the legislation would have from the client/agent/contractor perspectives. Don't forget Contractors and IR35 are both moving targets - it's a bit like the virus/anti-virus battle. Unlikely to be won by either side but neither will give up trying.

[Wanderer]

To be fair, at the time it may have seemed the right thing to do. No one knew what effect the legislation would have from the client/agent/contractor perspectives.

Yes, I do accept that the PCG acted in good faith in lobbying for the opt out but I also think that since it turned out to be such a massive own goal for the freelancers they represent, they have a moral obligation to fight against the abuse of the opt out by agencies which is rife.

[SueEllen]

And the director of the agency will turn around and tell you this was the action of "one rogue agent" and tell you that he has been sent away for reprogramming so he won't do it again. Standard agency bulltulip, everything is deniable and put down to the actions of a minority.

Who gives a sh*t as long as the agency pay up?

Oh and if they have had an EAI inspector breathing down their neck they won't try that trick again especially as the EAI can make life difficult for the agency.

Report the agency to the PCG too because the PCG are the muppets who lobbied to have the opt-out included in the legislation and scored a massive own goal for the freelancers they were trying to protect....

The opt-out was for those who wanted to subcontract work out.

The actual regulations are a mess.

[Wanderer]

Who gives a sh*t as long as the agency pay up?

I was just pointing out that this appears to be their way of doing business and people should be wise to it and call their bluff as Benny Boy did.

The opt-out was for those who wanted to subcontract work out.

The actual regulations are a mess.

I agree that the regulations are a mess and the opt out provision is poorly drafted.

I can see where the PCG were coming from with the concern that the regulations could apply to freelancers subcontracting out work but the agency regulations only apply to employment agencies and employment businesses and these terms are defined in law in such a way that they don't include freelancers subcontracting out work.

If the agency regulations did apply to a freelancer's business, they would find a whole raft of other regulations to comply with that make the agency conduct regs look like kindergarden so generally they arrange their subcontracting in such a way that they stay out of the agency business.

[Incognito]

I thought cojak investigated whether agents can legally say no role unless you opt out and the legal position was confirmed as. yes they can.

Or did I read it wrong?

If they can legally say no opt out no role then, its also stands that they can legally say no signed opt out, no pay.

Regulation 32

(9)Subject to paragraph (12), paragraphs (1)—(8) shall not apply where a work-seeker which is a company, and the person who is or would be supplied by that work-seeker to carry out the work, agree that they should not apply, and give notice of that agreement to an employment business or agency, provided that such notice is given before the introduction or supply of the work-seeker or the person who would be supplied by the work-seeker to do the work, to the hirer. [THE OPT OUT]

...

(11)Where a notice as referred to in paragraphs (9) or (10) is given to an employment business or agency whilst the person who is or would be supplied to carry out the work by a work-seeker which is a company is in fact carrying out the work in a position with a hirer, then the notice shall not take effect until that person stops working in that position. [ANY OPT OUT GIVEN AFTER START IS WORTHLESS]

...

(13)Neither an agency nor an employment business may make the provision of work-finding services to a work-seeker which is a company conditional upon the work-seeker, and the person who is or would be supplied by the work-seeker to carry out the work, entering into and giving notice of an agreement as referred to in paragraph (9), to the agency or employment business. [NOT ALLOWED TO MAKE OFFER DEPENDANT UPON SIGNING THE OPT OUT]

[Incognito]

I can see where the PCG were coming from with the concern that the regulations could apply to freelancers subcontracting out work but the agency regulations only apply to employment agencies and employment businesses and these terms are defined in law in such a way that they don't include freelancers subcontracting out work.

Definition of employment agency and business as per Employment Agencies Act 1973 as amended by Employment Relations Act 1999 (definition referred to in the regs.)

(2)For the purposes of this Act “employment agency” means the business (whether or not carried on with a view to profit and whether or not carried on in conjunction with any other business) of providing services (whether by the provision of information or otherwise) for the purpose of finding persons employment with employers or of supplying employers with persons for employment by them.

I can quite easily see how sub-contracting out people could fall under that category.

I agree that the regulations are a mess and the opt out provision is poorly drafted.

I disagree , I think they're clear enough.

[malvolio]

...I can see where the PCG were coming from with the concern that the regulations could apply to freelancers subcontracting out work but the agency regulations only apply to employment agencies and employment businesses and these terms are defined in law in such a way that they don't include freelancers subcontracting out work....

Unless there is an agency between the prime contractor and the client... That rarely applies for the average IT contractor, but there are plenty of one man bands subbing work to complete a traditional, agency-mangled contract.

The opt out has its place, and if people bother to apply it properly it's not an problem unless you think being opted in (which 90% of people are, intentionally or not) offers a benefit, which they don't; any of the supposed benefits are negated by other conditions.

The real problem is the drafting, which failed totally to differentiate between agency temp and freelance contractor, a point that was repeatedly made, by PCG and others, in the consultation phase.

[Incognito]

.
The real problem is the drafting, which failed totally to differentiate between agency temp and freelance contractor, a point that was repeatedly made, by PCG and others, in the consultation phase.

Playing devil's advocate with you here Mal, but how would you define a 'freelance contractor', as a legal definition.

When you do that, how would you prevent the unscrupulous agency from disguising their agency temps up as freelance contractors?

BN66 is an example of where 'wooly' interpretations of definitions of classes of people are manipulated. The regulations aren't really for our benefit, they're there to protect temps.

[minstrel]

Not sure why I would deserve this? Please explain.

Anyway...

I got the expected response from the Agency stating that if I don't sign the "Opt Out" immediately, I will be working within IR35 and they won't support me if I'm investigated. I didn't even mention that I was working inside or outside IR35 to them so seems to be standard resonse. Was also told that it invalidates my contract as it's an "Opt Out contract" ??? This is new to me !!! I asked for all of this in writing and hey presto, they suddenly decided to pay me.

If they paid late even by a day, I'd suggest you invoke the late payment legislation on them and charge them the £100 or so you're entitled to. Shows you will not be dicked around by them in future.

If you want to be generous you could suspend demanding payment conditional on prompt payment in future.

[cojak]

Regarding the legality of forcing contractors to Opt-Out, here is my original post.

http://forums.contractoruk.com/accou...ntractors.html

I have the real name of the Head of Employment Agency Standards who sent me this reply and as you can imagine I wasn't that impressed with the reply.

But I do have it in black and white. Quite different information from that given to SueEllen...

(I would still follow the advice of SueEllen as I think that their reply to me is kak.)