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

[Wanderer]

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

It's quite possible that they all are, but let's look at this in detail:

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.

So this is the clause that only allows restrictive covenants of 14 weeks from the start or 8 weeks from the end of the contract (whichever is longer). My reading of the regulations is that they bind the agency in their dealings with both the worker and the client so if the contractor declines to opt out then the agency cannot enforce this restriction against the client. If it were otherwise then the law would be worthless. We all agree that the regulations are poorly drafted in places, but my feeling is that if a client ever tested this in court then they would win their case as this was the intention of the regulation.

The law also restricts the temp to perm fees (I know - we would never go over to the dark side like this, but some people do) payable by the client. To me that is further evidence that the regulations are in place to regulate the agency's dealings with the client and the worker.

If I were hiring a worker though an agency then I would make damned sure that they didn't sign the opt out as there is a very good business case for a client to have their workers NOT opt out.

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.

The regulations prevent the agency from tying the payment by the client to the payment of the worker. Agencies will typically have a line of credit that they can draw on or they will find a way to factor payments to pay their creditors. If the agency is insolvent then I agree that the regulations won't change this but it does stop the agencies putting this abusive term in their contracts. Quite fundamentally, agencies are there to factor the payments. The regulations prohibit the scenario where an otherwise solvent agency hasn't been paid and they refuse to draw on their line of credit to pay the worker.

One you missed is that the agency cannot refuse to pay you just because you can't provide signed timesheets. Of course that doesn't prevent the agency from delaying payment while they make reasonable enquiries to determine that the work has been done but it's something that a contractor can use to press them for payment in difficult circumstances. Without this provision it's simply "no timesheet, no pay" and as we all know there a myriad of reasons why a contractor may not be able to produce a timesheet in the contractually required format.

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.

Yes, indeed. Why would someone accept a contract with patently unfair terms? But let's stop for a minute and ponder why the government felt the need to pass legislation to regulate the agencies.

Maybe it's because not everyone is in such a strong negotiating position against the agencies as we are? Perhaps agencies abuse their position by lying to clients that their first choice of worker was "unavailable" and they would have to accept their second choice when the fact is that the first choice candidate wouldn't accept the agency's draconian contract terms? I'm sure there are plenty of other stupid agency tricks that they try on.

In any case, I find it easier to just tell the agency "I'm not opting out" as my negotiating trump card rather than to go through a load of wailing and gnashing of teeth about individual contract terms weighted so heavily in the agency's favour.

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

Maybe you are right, but as Contreras asks - "why are the agencies so desperate for us to sign the opt out?" That's what woke me up to the detail of the regulations - they were just way too eager for me to sign my rights away.

The fact is that the only party to benefit from the opt out provision is the employment agency or employment business.