Opt out of Conduct of employment agencies 2003 act?

[Wanderer]

Personally I am totally relaxed about it (although I am currently genuinely opted out)....the handcuff waiver won't work because the client will have the same restriction in their contract and that will carry a lot more commercial weight than anything we can put together.

Are you are suggesting that if a client had a contract with an agency which says that "any worker supplied by the agency can't go direct to the client or via another agency for 12 months" then this would be a valid and enforceable contract term, regardless of the contractor's opt out status?

[malvolio]

Are you are suggesting that if a client had a contract with an agency which says that "any worker supplied by the agency can't go direct to the client or via another agency for 12 months" then this would be a valid and enforceable contract term, regardless of the contractor's opt out status?

Yes, but it could be challenged on the basis of being unreasonable and a restraint of trade. Not that I would sign such a contract in the first place. At the end of the day I work like a separate business, and don't see the need to try and hide behind variations of legilsation that aren't actually meant to apply to my business in the first place.

But what I said was about the agency/client contract. The client is going to be a lot less bothered about extended handcuff clauses and think that if they want you back you come via the previos agency 'cos what's the problem. But you would need to get them on side to step around the agency's restriction should the need arise.

[Wanderer]

the handcuff waiver won't work because the client will have the same restriction in their contract and that will carry a lot more commercial weight than anything we can put together.

That didn't sound quite right so I went and read the legislation again, specifically section 10,
Restriction on charges to hirers. This appears to say that the agency cannot seek to enforce a handcuff clause in their contract with the client if the worker hasn't opted out.

[malvolio]

That didn't sound quite right so I went and read the legislation again, specifically section 10,
Restriction on charges to hirers. This appears to say that the agency cannot seek to enforce a handcuff clause in their contract with the client if the worker hasn't opted out.

No, that's agreed.

But how about a penalty charge on the client by hiring someone previously supplied by the agency?

[Wanderer]

No, that's agreed. But how about a penalty charge on the client by hiring someone previously supplied by the agency?

I think section 10 of the agency regulations is pretty clear on this point. 14 weeks from the start or 8 weeks from the end of the contract (which ever is later) and the worker is free of any restriction, regardless of what the agency puts in their contract with the client.

[malvolio]

I think section 10 of the agency regulations is pretty clear on this point. 14 weeks from the start or 8 weeks from the end of the contract (which ever is later) and the worker is free of any restriction, regardless of what the agency puts in their contract with the client.

Yes, but it doesn't mean they won't try and charge the client as part of a breach of a generalised contractual arrangement that is nothing to do with a specific worker. Not saying they'll succeed, or should even try, but the threat may well be enough to deter the client from wanting to have the argument in the first place. People are getting bounced for much flimsier reasons, after all.

[quackhandle]

So I joined PCG, their blurb states that they would "expect" their members to Opt out (but not advise either way). Am already a member of QDOS and before sending contract for review the lady on the phone said "we would advise to Opt out".

The agency sent me two contracts one for opting in and opting out. The Opt In contract would have basically treated me like and Agency worker and coming under the AW regs 2011 and thus failing IR35. I sent both to QDOS and the Opt out passed and the Opt In failed. I signed the Opt Out contract.

So has the Agency Worker Regs changed the playing field when it comes to Opting In/Out?


qh

[malvolio]

So I joined PCG, their blurb states that they would "expect" their members to Opt out (but not advise either way). Am already a member of QDOS and before sending contract for review the lady on the phone said "we would advise to Opt out".

The agency sent me two contracts one for opting in and opting out. The Opt In contract would have basically treated me like and Agency worker and coming under the AW regs 2011 and thus failing IR35. I sent both to QDOS and the Opt out passed and the Opt In failed. I signed the Opt Out contract.

So has the Agency Worker Regs changed the playing field when it comes to Opting In/Out?


qh

No, it's irrelevant. You are ascribing intelligence to agencies; never a good idea. However since opting out beneits the agency more than you (in terms of risk if not directly financially) they tend to keep the IR35-friendly contracts for the out team. Good agencies - those that understand the rules - have IR35 friendly contracts regardless.

As for AWR the real safe option is to hire your contractors directly, since adding an agency increases the risk considerably. Somehow don't think the agencies will tell the clients that though...

[SueEllen]

So I joined PCG, their blurb states that they would "expect" their members to Opt out (but not advise either way). Am already a member of QDOS and before sending contract for review the lady on the phone said "we would advise to Opt out".

Bit of a waste of money joining both.

Did you ask the lady why she advised opting-out? I would especially as if you have been introduced to the client you the opt-out is invalidated. (Though it's not been tested in court.)

While agencies have some odd understandings of the word "introduced" I know in practise that many clients don't act to their understanding.

The agency sent me two contracts one for opting in and opting out. The Opt In contract would have basically treated me like and Agency worker and coming under the AW regs 2011 and thus failing IR35. I sent both to QDOS and the Opt out passed and the Opt In failed. I signed the Opt Out contract.

So has the Agency Worker Regs changed the playing field when it comes to Opting In/Out?

Nope.

The Conduct of Employment Business and Employment Agencies Regulations are to control bad agencies. In theory as business you are on equal footing to an agency, so should have enough clout to sort out any issues yourself.

BTW I never opt-out now.

I've done so once properly and it was a waste of time as I found out the agent didn't get paid if I didn't submit my invoices as they went to the client. So the agent would chase me and other contractors for an invoice every month. Plus the client refused to take on contractors directly.....

[Wanderer]

Yes, but it doesn't mean they won't try and charge the client as part of a breach of a generalised contractual arrangement that is nothing to do with a specific worker. Not saying they'll succeed, or should even try, but the threat may well be enough to deter the client from wanting to have the argument in the first place. People are getting bounced for much flimsier reasons, after all.

I've recruited people though agencies and I can assure you that the company didn't stand for this sort of agency nonsense as an employer any more than I do as a contractor. Maybe the company was the exception rather than the rule but many of them are getting wise to the stupid agency tricks.

So I joined PCG, their blurb states that they would "expect" their members to Opt out (but not advise either way). Am already a member of QDOS and before sending contract for review the lady on the phone said "we would advise to Opt out".

You have got to remember that the PCG fought long and hard to get this opt out and sadly it appears that for all the good work the PCG have done over the years, they have shot themselves in the foot with this one.

The agency sent me two contracts one for opting in and opting out. The Opt In contract would have basically treated me like and Agency worker and coming under the AW regs 2011 and thus failing IR35. I sent both to QDOS and the Opt out passed and the Opt In failed. I signed the Opt Out contract.

Just because you signed an "Opt Out" contract doesn't mean you can't withdraw the Opt Out in writing at any time before you start working. The contract will still stand but certain terms will not be enforceable.

So has the Agency Worker Regs changed the playing field when it comes to Opting In/Out?

Not as far as I can see - the two are not connected.