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

[Incognito]

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.)

Ah CJ, you need to be careful what you ask them though. If your question was asking if it was illegal to insist that they will only seek work for work-seekers who will agree to opt out of the Conduct Regulations, then technically their answer 'could' be correct.

However, if you had asked them if it was illegal to insist that they will only seek work for work-seekers, where the work-seeker is a company, who will agree to opt out of the Conduct Regulations then their answer is wrong.

As per the regs:

“work-seeker” means a person to whom an agency or employment business provides or holds itself out as being capable of providing work-finding services.

Regulation 32 is the reg that concerns us as contractors, that amends the definition of a work-seeker as follows:

Application of the Regulations to work-seekers which are incorporated

32.—(1)Subject to paragraph (9), in these Regulations—

(a)any reference to a work-seeker, howsoever described, includes a work-seeker which is a company; and
(b)the regulations mentioned below shall be modified as set out below in a case where the work-seeker is a company.

Reg. 32(13) only applies where the work-seeker is a company.

[Incognito]

Actually scrap that, their answer is wrong, the opt out Reg 32(9) only applies a work-seeker which is a company. Temps cant't opt out.

Ping me over who you wrote to there and I'll fire them a snottygram.

[cojak]

Ah CJ, you need to be careful what you ask them though. If your question was asking if it was illegal to insist that they will only seek work for work-seekers who will agree to opt out of the Conduct Regulations, then technically their answer 'could' be correct.

However, if you had asked them if it was illegal to insist that they will only seek work for work-seekers, where the work-seeker is a company, who will agree to opt out of the Conduct Regulations then their answer is wrong.

What a bunch of tulipes, I wondered why that last paragraph sounded tip-toeingly pedantic...

[cojak]

Actually scrap that, their answer is wrong, the opt out Reg 32(9) only applies a work-seeker which is a company. Temps cant't opt out.

Ping me over who you wrote to there and I'll fire them a snottygram.

I just sent them the question via the BIS website.

I think I'll sit down and ask the question again in a more exacting manner...

[tractor]

..

Here's another potentially slimy one to be aware of. Today, I had a call back from Randstad regarding a JS role. We discussed it and agreed that I would be a good fit so agreed to proceed. I received the email asking me to authorise them to represent me for this role which I did, adding the caveat provided you confirm submission to the client within 48 hours - as an aside, they accepted this without question.

However, as a condition, I was required to fill in their web form that asked general stuff about Ltd/Umbrella, CCJ's, Unspent convictions etc with a tiny section that contained two mutually exclusive radio buttons for Opt in/Opt out. Neither worked. What's more worrying, the form wasn't rejected either. Just accepted with a confirmation email of my submission which did not mention opt out at all.

Incompetence or deliberate?

[SueEllen]

Incompetence or deliberate?

Deliberate.

[Wanderer]

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.

But what the PCG don't seem able to accept is that a large percentage of these 'freelance contractors' think there are sound commercial reasons for NOT opting out of the protections provided by the regulations.

[malvolio]

But what the PCG don't seem able to accept is that a large percentage of these 'freelance contractors' think there are sound commercial reasons for NOT opting out of the protections provided by the regulations.

But if you think about it, those contractors are probably totally wrong.

The handcuff limitation won't work if there is a higher contract betrween agency and client with the same conditions, which there almost certianly will be. If the agency can't pay you then they can't pay you, whether or not they've been paid and you have recourse to the late payment provisions. Then again if you're daft enough to sign a contract that says your payment for work done is totally dependent on a third party who is not part of that contract - which is what you are actually saying - then you're in the wrong job anyway.

Since those are about the only two "benefits" accruing from being opted in, there's really not a lot to them, is there?

[Contreras]

But what the PCG don't seem able to accept is that a large percentage of these 'freelance contractors' think there are sound commercial reasons for NOT opting out of the protections provided by the regulations.

But if you think about it, those contractors are probably totally wrong

Well either that, or you could be wrong. Or maybe neither is wrong but your personal reasoning differs from the majority.

Fwiw, I have thought about it, and concluded:

a) it's already the default "do nothing" position.
b) whilst it may have no impact on the legal position, that is irrelevant because:
c) the agency wouldn't be so keen on having an opt out unless there was some perceived benefit to them.

I also have a lot of respect for Roger Sinclair, and he says:

Overall, I find it difficult to see that there is any sound commercial reason why a contractor providing services through an agency would wish to opt out of the new regulations.

Opt-in, opt-out?Legal specialist Egos comments

[Boo]

But if you think about it, those contractors are probably totally wrong.

The handcuff limitation won't work if there is a higher contract betrween agency and client with the same conditions, which there almost certianly will be. If the agency can't pay you then they can't pay you, whether or not they've been paid and you have recourse to the late payment provisions. Then again if you're daft enough to sign a contract that says your payment for work done is totally dependent on a third party who is not part of that contract - which is what you are actually saying - then you're in the wrong job anyway.

Since those are about the only two "benefits" accruing from being opted in, there's really not a lot to them, is there?

That really is a pile of self-serving old carp. But we have come to expect that from the PCG and its apologists, eh ?

The advantages of being opted in are that a contractor can go direct with the client after a certain time and that the agency must pay the contractor regardless of whether they get paid or not.

The first of these rights overrides both the upper and lower contracts so Mal-vulva-oh!'s point is invalid. The second right means that the multi-million turnover agency will have to stump up if the client goes t.u. or otherwise fails to pay. This will be rather more useful to the average contractor than the Pathetic Contractor's Group paltry agency insurance.

So wrong on both counts (again).

Boo