Contract renewal - change of agency

[pippo]

Hi all!

I've been offered a contract extension at my current site: the client asked me to stay for another xx months. I've asked the agency a rate increase otherwise i would not accept the extension. The client tells me that the agency asked them a rate increase and they (the client) will not be able to meet this additional cost. So the agency is trying to pass the rate increase to the client without lowering their commission. In order to meet my rate increase the agency would need to cut their take by half and that would still be around 10% of the gross rate (at the moment their take is around 20% of the gross rate). I know this because the client told me what the agency is charging them at the moment. I would like to continue with this contract but I fear that the agency might not be prepared to take the cut.

Question: could i go with another agency? My fear is that the current contract contains one of those infamous clauses that states that i cannot work for xx number of months with the same client unless i go through them (the current agency). However, for this contract, i've never opted out nor opted in of the Agency Regulation. But i'm not sure if this is relevant. Could my current agency take me to court, etc. if i decide to continue working at my current site but through a different agency?

Any advice appreciated. Thanks!

[phonemonkey]

yes they could, they will, and they will win

[boredsenseless]

and 20% is about the norm really.

Cue : a few muppets talking about how they managed to get their agent down to 4%!!!

[ChimpMaster]

I would say that you shoudl only stay if you're happy with what YOU get as your daily rate. If you're not happy get another contract, and let the agency sort out the mess. Simple as that.

[Goya]

Hi all!

I've been offered a contract extension at my current site: the client asked me to stay for another xx months.

Is that 20 months?

[pippo]

Is that 20 months?

Not quite that long Goya

What i'm interested to know is: can an agency actually legally enforce the contract clause i was referring too. I might remember wrongly but i seem to have read somewhere (possibly on this site) that, if you opt-in the Agency Regulation, these contract clauses cannot be applied and are therefore void from a legal point of view. It is actually illegal for an agency to put these clauses in their contract if the contractor chooses to opt-in. Is this the case or am i talking bollocks?
Since my current agency never explicitly asked me if i wanted to opt-in or opt-out of the Agency Regulation, then (by law) it's as if i had opted-in. Right?

Maybe i should have posted this in the Legal section of this forum...

[meridian]

IANAL, but...

If you haven't specifically opted out then you're deemed to be opted in. This means that regardless of what your contract states, you can return to the client after 8 weeks.

I'm not too sure what the position is between the agency and client, however, and whether or not the agency has an enforcable position with their end-client. For example, the agency for my current contract has these terms and conditions with their clients:

"In the event of the Engagement by the Client of a Work-Seeker supplied by [agency] either (1) directly or (2) pursuant to being supplied by another employment business or employment agency, within either:
• The duration of the Assignment; or
• 14 weeks from the start of the first Assignment (the first Assignment being each new assignment where there has been a break of more than 42 days (6 weeks) since the end of the previous Assignment); or
• 8 weeks from the day after the last day the Work-Seeker worked on the Assignment
the Client shall be liable, to either:
a) Subject to electing upon giving 7 days notice, an Extended Period of Hire or
b) A Transfer Fee calculated in accordance with schedule A. No refund of the Transfer Fee will be paid in the event that the Engagement subsequently terminates."

[pippo]

If they don't budge just go with a different agency. If you've stayed opted in then they don't really have a leg to stand on as you can go direct with the client.

Thanks Denny for getting to the point. So, would it be correct to say that if I've stayed opted-in then i can go direct with the client or i can go with another agency without any legal risk? Even if in the contract with the current agency there's an explicit clause saying that i cannot work with the client for a period of xx months after the termination date? The client would like me to carry on working with them without any "holiday" periods: they could not wait 8 weeks before me returning on site. The key point seems to be that the clause in the contract is inconsistent with the opt-in legislation? So i guess the question is: which of the two takes "precedence"?

[ASB]

without any legal risk?

Thats not something that exisits. There is legal risk in anything

You are opted in. As a result of this you are perfectly at liberty to be placed there by another agent. You will need to check the regs but I think you can do this immediately your original assignment completes. I think thats what you want to hear.

Now you need to put your pragmatic hat on and figure out what you can actually do in practice. I think this is likely to be fsk all.

You wander off to some other EB, say "look, you put me up at 5%, we both do OK and I can screw over the existing agent" (bluntly this is precisely what you are saying you want to do).

Where this falls down is in the EB-Client contract you were originally supplied under. You have been given an example of a typical sort of clause these contain regarding supply from other people.

So, the first thing you have to get the client to do is accept that this is of no consequence or risk to the them. Your chance of doing this must be very close to nil. It is possible the client might actually have a good relationship with your current EB and don't want to foul it up.

There is the question of whether the non procurement clauses would be enforcable against the client anyway. The answer to that is unclear. However I beleive it is likely that it is. The client entered into commercial terms with the EB. If it breaks them it pays the consequences.

However, if the EB were unable to supply you then it is likely a court would find it inapplicable. However the point is moot. Since EB2 can miraculously supply you then they would likley take the view that EB1 and yourself could have reached terms were it not for your intransigence.

But, the overall point is that whilst you can legally do what you propose the consequences turn to the end client. They are unlikely to want to touch it.

[XperTest]

Also tell them that 10 per cent over six months is just as much as 20 per cent over three months extension.

No direct costs associated with running an agency I see? Also, whatever happened to the economic wisdom that one pound today is worth more than one pound tomorrow? And that's not even considering that they have an additional opportunity of keeping you on for an additional 3 months at the original rate if the project was to last for only another six months..

Not saying that you shouldn't negotiate the agency's cut at renewal time, just pointing out this argument is more likely to make you look silly than persuade them to give you what you want..