opt in/opt out again I'm afraid

[rootsnall]

Sorry for starting this thread again but the previous one had got very long !

I am just negotiating a contract renewal and have raised the opt out issue with the agent. I started my initial contract pre the new regs and have since had 2 renewals since the new regs came in. Before my first renewal they sent me a number of emails asking me to opt out via return email, I chose not to do this. However when my contract renewal came in a weak and lazy moment it appears I signed a contract stating that I had opted out. I have never had my copy of the signed contract returned and have been chasing this issue with various fob offs so far, I think due to disorganisation rather than a deliberate ploy.

The client is very local to me and I believe without any large restrictive transfer fees would take me on long term and probably perm at some stage. They have said they'll employ me directly but I must sort out the agency side of things myself ie. they dont want the hastle. I raised the issue with the agency and said I want to negotiate a pay off directly with them, as expected they said no way and stated I was opted out via my renewal contract and hence the restrictive transfer fees are still valid !?!

I am sure armed with a legion of barristers and support from the client ( not forthcoming if it gets serious ) I could prove they havent stuck to the new regs but I think I will back down this time and take the 3 month contract via the agency the client is about to propose. So what I want to know is how I should approach making sure my new renewal is defo 'opted in' !? I am assuming the agency will say I cant do this as I've already opted out and an argument will ensue. There was conflicting opinions in the original thread as always in these matters. I am happy to pay some sort of bounty to ensure my freedom but the agency stance was no way, no negotiation.

Any opinions/advice much appreciated

[widgetdance]

The regulations were so badly implemented that there was no way to opt out for an on going contract.
If you were on contract when the regs came in then you are defacto opted in. Any opt out you may have signed is invalid for that contract or any extension to it barring a material change.

[rootsnall]

Thanks for the quick reply.

What constitutes a 'material change' ? I am on the same rate but would have to look closely ( if I ever get my contracts back ) to see what else they possibly changed in my renewals.

The client to agency contract will still contain all the restrictive clauses and getting them to become involved in any dispute is a non starter I think. If I renew and insist it states I am 'opted in' then I presume the accompanying client to agency contract should legally reflect this and have the offer to renew for 8 weeks in there. I bet it doesnt though !

[widgetdance]

Change of project, change of team change of location could all be inerpreted as material changes.
If you have renewed with the same team, manager and project then there is no material change.

You should contact your agent and tell them you have been looking at this legislation and that you dont believe the opt out was legal or valid. See what they do. Ask them if they know who to contact if you think the legislation has been broken.

[rootsnall]

Thanks again.

I've already bottled it on this one I'm afraid for instant freedom but will keep on top of the next renewal contract and what is in it.

Can they still put restrictions in the accompanying agency/client contract of any renewal if I am 'opted in' ?

In a normal working away from home contract I'd play it harder but this job is a one off regarding location so I dont want to drag the client into bother and mess things up.

[mailmannz]

Check this link out basic break down of the regs

Regards

Mailman

[IsItOver]

I think the regs are pretty pointless as I have yet to come across an end client who wants to bypass agencies. Agencies make things nice and easy for end clients.

[widgetdance]

IIO.
The fact that most clients want to use an agent is in our favour. These regs give us a fighting chance.
The agents have gone into "paranoia" mode over the possibility of us jumping ship and the fact that they have to pay us whether the client does or not. They are also bitching about the extra work they have to do to comply.
I would suggest therefore that the opt out is a damned good carrot to get a contract written to our spec (IR35 friendly).

[mailmannz]

Whether you are opted in or out makes no difference to the IR. If they come for you they are going to come for you regardless of your opted status.

Mailman

[IsItOver]

Good point widget.