Exclusion Clause - How tight are they?

[Denny]

Guys

I didn't want to start a war of words between contractors and agents. All I was after was some advice on a tricky situation. I had one interview 4 years ago at the end client and I have managed to win contract renewal after contract renewal and I have brought in my team through my agent. I have a fabulous opportunity to join another company as a permanent employee but working at the same client site. I owe the agency nothing as I have generated lots of money from them but I am afraid of the excluson clause as it may hinder my future. I don't want to upset the agent and or the client I am working at.

I do not understand what opt in and opt out means. I have a standard contract, with a replacement and exclusion clause. I receive no pay for hours not worked. Other than the exclusion clause, I have no tie in to the agent and or the client. I think the agent has done well from me over the past 4 years as all they have done is arrange 1 interview 4 years ago and have received renewals every 6 months since. I have brought in another 5 contractors through the agency. I think they would be concerned that there business would be under threaght, hence, my concern at contacting them directly. I may have no option but to go to them and ask to be released and take it from there.

Ethically you are strong grounds, but legally you don't have a leg to stand on. Unfortunately, you are a commodity and the agency are suppliers of your services (not that this is ethically sound or convincing in practice).

You have three options:

Go to the agency and ask them to release you from their contractual requirements they have with you. They may not agree to that though.

The only other thing you can do is go behind their back and risk being shopped in by a colleague who knows which agency you worked through once you start your new job. A risk I wouldn't recommend.

The best option is to get the company to negotiate with the agency to reduce the transfer fee or waiver it. The relationship is really between organisation and the employment business not you and an agent because its not you who are paying them.

[Mailman]

FIRSTLY, talk to the client as they may have a list of preferred agents (and your agent MAY BE the only ones they will work with). Ask your client if you can move to another agent or contract direct. They will let you know if this is possible.

Secondly, if the agency hasnt asked you to opt out (they require a letter from you saying you are opting out) then you are opted in.

You need to read your contract and see if there is a clause in it that says something like if you want to change agents or go direct that you have to use their services for a further set amount of time. After this "extension" has finished you can then change agents or go direct.

Most likely your contract hasnt changed since you first started so you can go direct or change agents at your next renewal. Heck, you dont even have to tell them you are leaving them. The agents will most likely make lots of noise etc but at the end of the day because you are opted in (and as long as your contract has no clauses that allow for them to be managed out of the relationship via an extension) you can do what you want.

Mailman

[Mordac]

Someone above said that 'your own organisation the PGC favours contractors opting out' or words to that effect. Rubbish! The PGC are very much in the pocket of employment businesses. That's why I've never been tempted to join them. With affiliates like ATSCO and most of the other big IT agencies, am I really stupid enough to assume they don't exert some influence over PGC policy? No, of course not.

The PCG are not in the pocket of agencies. But then if you were a member you'd know that. It's no wonder people think you're a berk when you spout rubbish like that.

[Mailman]

They may not be in the poclet of agencies but in a single stroke of brilliance handed control of contracts squarly to the agents by insisting on the right to opt out of the agency regs.

Yeah...nice one PCG!

Mailman

[Denny]

They may not be in the poclet of agencies but in a single stroke of brilliance handed control of contracts squarly to the agents by insisting on the right to opt out of the agency regs.

Yeah...nice one PCG!

Mailman

That's why they're in the pockets of agencies. The 'right to opt out' seems a very strange way of putting into effect a measure that unreservedly works against the interests of contractors and fully in favour of agencies.

I have a right to be coerced into opting out or not be forwarded
I have a right to be screwed by agency clients
I have a right to be lied to
I have a right not to have legal redress or DTI backup
I have a right to restrictions and barriers to trade

Seems very odd to me.

[Mailman]

It does doesnt it...and for that reason alone I will never join the PCG. If Im going to join a group that supposedly says they are working in my best interests then thats what I want them to do...not to work in the best interests of the scum who call themselves agents!

Mailman

[VectraMan]

I have to admit to opting out without fully understanding what it meant.

I've just been reading the PCG guide, and yes I agree there seems little benefit to it for anybody but the agencies, except for the slightly dubious part that by not being responsible for the work you're more like an employee for IR35 purposes.

It also says that you have to opt out before being introduced to the client, which is not what happened to me. Because of things happening in a rush I don't think I signed the opt out form until after I'd started work for the client. Does that mean (if I wanted to test it) the opt out isn't valid?

[Denny]

I have to admit to opting out without fully understanding what it meant.

I've just been reading the PCG guide, and yes I agree there seems little benefit to it for anybody but the agencies, except for the slightly dubious part that by not being responsible for the work you're more like an employee for IR35 purposes.

It also says that you have to opt out before being introduced to the client, which is not what happened to me. Because of things happening in a rush I don't think I signed the opt out form until after I'd started work for the client. Does that mean (if I wanted to test it) the opt out isn't valid?

I doubt it. Once your name is on the dotted line you're stuck with it for that particular contract. It's up to contractors to know what recruiters should or shouldn't be doing since they're not in the habit of being honest about the regs themselves and regularly flout the law in this regard. Next time, if you're interviewed by an end client prior to opting out tell your agent that you can't by law opt out now that it's too late and that they have no business to expect you to now the introduction has been made. If you haven't actually given your recruiter your passport (for ID), qualifications and references prior to being interviewed (or at least before being hired if after interview) then forward these on instead before you start on site and make sure they carry out all the checks required. All agencies have a legal obligation to ensure your 'suitability' before you are hired and its certainly in your own best interests to ensure they comply with this.

[DodgyAgent]

. All agencies have a legal obligation to ensure your 'suitability' before you are hired .

If that was the case Denny you would never get any work at all.

[Denny]

If that was the case Denny you would never get any work at all.

Shouldn't that be - if that were the case Denny then us dodgy ASBO dodging, hair gel slicked, wide tie, money gasping pimps shouldn't be in business?