Why does the agent present the contractual terms?

**The Agents View** · 27 August 2010, 11:34

Originally posted by Cenobite View Post

Howdy,

I've been contracting a few years and wonder if I've been mugged off by accepting the agent's contract as a starting point for negotiation.

I've seen contract templates on the PCG Web site and thought they might come in handy when contracting direct but has anyone tried forcing these on an agent?

I don't know if there's anything in law that says it's the buyer that initiates the contractual terms. For instance, if a buy a computer from a big manufacturer, I end up accepting their T&Cs. It seems whoever has the money for lawyers gets to decide the terms, whether they are the buyer or the seller.

After all, I'm my own business, and I don't see why my clients (mostly agents) could not accept my contractual terms (with the agreed rate on them).

I'd love to be offered a contract though an agent and tell them that my contractual terms will be in the post for them to review. If they turn round and won't even consider my terms, why should I be expected to acquiesce and automatically consider theirs?

I've worked with some old-timer contractors, and from what they tell me, agents have pushed more and more risk on to contractors over the years and in the face of plummeting contractor day rates. I've been told IR35 was agents dodging their responsibilities, not wanting to pay sick leave to their contractors and so on. So now if you're caught by IR35, you pay all this extra tax, and the agent doesn't give you any employment rights.

I don't see why they should get it all their own way: let's start pushing back.

I hate to explain this to you, but you'll never get anyone of any scale to accept this. Our business administers around about 3000 contractors - now imagine the size of the team we would need if we let everyone on our books use their own variations of contracts!?!

As good as the theory of the above is, I can't see it happening.

**Cenobite** · 27 August 2010, 11:52

[QUOTE=The Agents View;1187106]I hate to explain this to you, but you'll never get anyone of any scale to accept this.[QUOTE]

I understand that the way of the world is that the party with numbers on their side dictates terms. I don't see why some tinpot agency outfit feels they're in the position to dictate terms though like it's the norm.

I'm interested then: so if a contractor tried this with you, you'd laugh in their face and then thrust your contract on them.

I guess I wouldn't mind if agencies were even slightly familiar with the templates on the PCG Web site, and didn't keep sending me nominally IR35-proof contracts, that my adviser tells me not to sign. It's touches like this which would gain respect.

My current agent didn't even know what right of substitution or autonomy meant: and he's been in this business for over fifteen years. (And that's not just what he's told me, an old-timer contractor who's dealt with him before has vouched for that).

**chef** · 27 August 2010, 12:04

Originally posted by The Agents View View Post

I hate to explain this to you, but you'll never get anyone of any scale to accept this. Our business administers around about 3000 contractors - now imagine the size of the team we would need if we let everyone on our books use their own variations of contracts!?!

As good as the theory of the above is, I can't see it happening.

so, in the case that someone at say Bauer & Cottrell review the contract and come up with some significant pointers towards making it IR35 friendly, if the contract is ammended would you then use this as a base contract fromthen onwards (i.e roll it out at next review to all contractors) to save future negotiations or do you end up with possibly upto 3000 slightly different contracts?

**Cenobite** · 27 August 2010, 12:06

Your reply is exemplary of the passing of the buck that agents have got away with.

Why I guess clients use agents:

* They think the applicants are being properly screened by the agent; and
* They don't want individual contracts with all their suppliers, so using an agent buys them contractual simplicity.

If clients on their side were paying for simplicity, and agents then, for their money, accepted contractual complication on their dealings with contractors, then I would say that the agent was providing a service.

But oh dear, from what you've said, the agent, like the client, doesn't want all these different contracts with their suppliers either, so it'd be nice for them to force a single standard contract on all their contractors.

**Cenobite** · 27 August 2010, 12:12

Originally posted by chef View Post

if the contract is ammended would you then use this as a base contract fromthen onwards (i.e roll it out at next review to all contractors) to save future negotiations or do you end up with possibly upto 3000 slightly different contracts?

Yes this is exactly what I don't see happening: when I started a new contract with a load of new guys, the agent's company tried pushing the original contract on every single one of us, with each one having to fight individual changes. There seemed to be no learning experience at all. You'd think someone there would say, hmm, no one's signing our standard contract, maybe we should change it in response.

Also, try as the agents might, contractors are going to get their little changes in their, so an agent won't really get away with the one contract.

**d000hg** · 27 August 2010, 12:46

If every contractor brings their own contract, that's a nightmare. It must take an hour to properly review a contract, and the agency would have to have one person doing this all the time.

It would make sense if agencies would agree to use something like PCG template, that way they still know the contract is sound. Agencies could also put their standard contract online for review.

**SueEllen** · 27 August 2010, 13:08

Originally posted by The Agents View View Post

I hate to explain this to you, but you'll never get anyone of any scale to accept this. Our business administers around about 3000 contractors - now imagine the size of the team we would need if we let everyone on our books use their own variations of contracts!?!

Then how come if I get a lawyer involved, either formally or informally, the agents concerned have been very willing to change the contract?

Wouldn't it be a good idea, like some other agents, to already have a good contract in place that mirrors the PCG template ones?

The vast majority of contracts look like the agent wrote it themselves without checking them with a lawyer. This leads to some of the terms in contracts that agents try to push through being legally dubious at best and at worse could easily be struck out if the contract actually went to court.

**d000hg** · 27 August 2010, 13:36

Originally posted by SueEllen View Post

Then how come if I get a lawyer involved, either formally or informally, the agents concerned have been very willing to change the contract?

Because now the time involved is less to review your contract, than keep arguing.

**The Agents View** · 27 August 2010, 14:17

Originally posted by d000hg View Post

If every contractor brings their own contract, that's a nightmare. It must take an hour to properly review a contract, and the agency would have to have one person doing this all the time.

It would make sense if agencies would agree to use something like PCG template, that way they still know the contract is sound. Agencies could also put their standard contract online for review.

I don't actually have this problem, because we use a PCG approved contract.

SE: The response is right - whether its right or wrong, my attitude would be that this is our contract, if you want it changed, you do the legal bits - ie you pay for a solicitor, assuming it's not turning around and making wild requirements up, then I can probably accomodate it somehow - but I don't have people who can evaluate this change - and I will need a Director level person to sign it off.....

Why does the agent present the contractual terms?