Direct Contract Offer - AWR Opt Out Regs

[pauly]

Quick question to the forum...

I received an offer for a contractor engagement with a Client Company - approached them direct and they interviewed and offered.

I am reviewing the contracts they provided. There is an Appendix at the end where I agree to Opt-out.

I would prefer to remain Opted-in to the AWR.

I believed the AWR was related to "Agency" Workers Regs?

Are Opt-out's valid when you have a direct contract with Clientco and no Agency?

Anything else contractors should ask or look out for with a direct clientco contract?

[Contreras]

Quick question to the forum...

I received an offer for a contractor engagement with a Client Company - approached them direct and they interviewed and offered.

I am reviewing the contracts they provided. There is an Appendix at the end where I agree to Opt-out.

I would prefer to remain Opted-in to the AWR.

I believed the AWR was related to "Agency" Workers Regs?

Are Opt-out's valid when you have a direct contract with Clientco and no Agency?

Anything else contractors should ask or look out for with a direct clientco contract?

AWR does not apply unless there is an agency acting as intermediary.

There is no opt-out for AWR. But you can have a clause agreeing that it does not apply because you are "in business on your own account"

Perhaps you/they are confusing the AWR with The Conduct of Employment Agencies and Employment Businesses Regulations 2003, which also does not apply for the same obvious reason.

[pauly]

AWR does not apply unless there is an agency acting as intermediary.

There is no opt-out for AWR. But you can have a clause agreeing that it does not apply because you are "in business on your own account"

Perhaps you/they are confusing the AWR with The Conduct of Employment Agencies and Employment Businesses Regulations 2003, which also does not apply for the same obvious reason.

Thanks.

CEAEBR 2003 (link)

The statement in the contract says that the contractor "...has opted out of the Conduct of Employment Agencies and Employment Business Regulations 2003".

Clearly this piece of legislation is related to getting Agencies to behave. If there isn't one - its not material.


AWR 2011 (link)

There is a further Opt-out document in the contractor Appendix which speaks to Opting-out of the Agency Works Regulations. The contractor has to agree to the below statement:

"...I am operating outside the scope of the Agency Worker Regulations 2010 at all times."

Putting aside the merits of remaining AWR opted in v IR35 aside for a moment:

If the contract is only for 3months - I presume the AWR would not apply in any case as it has not met the 12 week qualifying period. If the Clientco renews after 3 months is the contractor then covered (i.e. do companies deliberately only give you 3 month contract renewals in order to keep you from the qualifying period)?

[LisaContractorUmbrella]

ClientCo seems a little confused - the Conduct Regs and the AWR only apply to recruitment agencies. There is an opt-out from the Conduct Regs but in some circumstances you will be automatically opted-in regardless of what you do or don't sign. The AWR themselves determine whether or not you fall within scope so there is no way that you can opt out.

[pauly]

ClientCo seems a little confused - the Conduct Regs and the AWR only apply to recruitment agencies. There is an opt-out from the Conduct Regs but in some circumstances you will be automatically opted-in regardless of what you do or don't sign. The AWR themselves determine whether or not you fall within scope so there is no way that you can opt out.

Thanks. Thought as much. The AWRegs do state the contractor has a qualifying period of 12 weeks. If the contract is renewed after 3months does the legislation treat this as concurrent and therefore AWR rights start to apply? Or can Clientco's use 3month renewals to circumvent AWR regs applying??

[LisaContractorUmbrella]

Thanks. Thought as much. The AWRegs do state the contractor has a qualifying period of 12 weeks. If the contract is renewed after 3months does the legislation treat this as concurrent and therefore AWR rights start to apply? Or can Clientco's use 3month renewals to circumvent AWR regs applying??

Nope it would apply after 3 month regardless but only if you are working through a recruitment agency

[pauly]

Nope it would apply after 3 month regardless but only if you are working through a recruitment agency

Okayyyy... so if you're not working through an agency, all those hard won Day 1 and Week 12 Clientco rights are not applicable??

[LisaContractorUmbrella]

Okayyyy... so if you're not working through an agency, all those hard won Day 1 and Week 12 Clientco rights are not applicable??

Yep, 'fraid so

[Contreras]

Okayyyy... so if you're not working through an agency, all those hard won Day 1 and Week 12 Clientco rights are not applicable??

It's direct. Consider yourself a business. You have the rights that are negotiated and signed up to in the business-to-business contract.

[pauly]

It's direct. Consider yourself a business. You have the rights that are negotiated and signed up to in the business-to-business contract.

Thanks. Get that. If however you want the same rights (i.e. access to jobs openings etc) I guess you'll have to state it in the contract?

Rather than stating every Day-1 and Week-12 right, am wondering if its easier to just insert a statement indicating that the AWR does apply? Curious if this would suffice?

I think the legislators have missed a trick here. Surely the regs were designed to protect temp workers, not just temp workers that are going through an agent?