Opt out of Conduct of employment agencies 2003 act?

[Sympatico]

The regulations do not need an opt-out mechanism. It is the wrong solution!

There is a clear desire by government to protect small businesses from abuse by more powerful organisations. e.g. the plan for the new small business commissioner

Likewise, the conduct regulations were designed as a shark cage to protect individuals and small business contractors.

It seems like the only issue with the CR for small business contractors is the potential perception of the wording re control by the client and its arguable effect on IR35

Imagine there had been an organisation that looked out for the interests of contractors.
They could have lobbied to simply change the CR wording so it explicitly covered business to business relationship with the client as well.
Job Done!

Whoever came up with the complicated badly written opt-out idea has thrown most of us back to sharks.

[northernladuk]

You a member of IPSE per chance? Some would argue they are partly to blame for all this opt out stuff.

[BurdockTheContractor]

It's amazing how an Agency can send me an opt-out contract within hours of accepting an offer but it takes them up to the 11th hour to provide me with an 'opt-in' contract.

[missinggreenfields]

It's amazing how an Agency can send me an opt-out contract within hours of accepting an offer but it takes them up to the 11th hour to provide me with an 'opt-in' contract.

Probably because they've never had anyone ever ask for an opt in contract before? :P

[malvolio]

You a member of IPSE per chance? Some would argue they are partly to blame for all this opt out stuff.

No, the agencies are to blame by taking advantage of poorly worded legislation created by the UnCivil Servants in the Treasury to derive a commercial advantage at our expense. The intention was clear and necessary. and was negotiated in good faith. Sadly HMG generally are too incompetent to write rules that work as intended, as we have seen many times before.

As has also been said, HMG won't change the rules and have said that the agencies - in fact, any business - can choose who they want to deal with and under what conditions, so railing against the opt out has no purpose; live with it and work accordingly. Or take an agency to court for a breach of the opt out rules: IPSE would almost certainly support such a case.

[pauldee]

OK, this is my first experience of this. I assure you I am working through the thread but it's a lot to take in.

There seems to be a consensus that representation cannot be conditional based on whether a contractor opts out. However, I have this in a current email (The email contains contract, job spec and an opt out form):

'Once you are happy can you also confirm that you will be opting out of the Conduct Regulations 2003 (form attached FYI which you will need to fill in if you secure the contract)'

I will need to fill in if I secure the contract. This doesn't sound on from what I've read. If anyone has any advice I would be grateful.

[northernladuk]

There seems to be a consensus that agencies are not allowed to withdraw contracts/representation if a contractors refused to sign.

There is? SueEllen and Cojak looked in to this and got completely different answers I believe but whatever the rules might be what are you going to do if they say no? There is no legal precedence yet and I am absolutely sure you won't report them and take it legal so if they refuse to budge you either sign or leave it.

If I was you I'd be sure you know at exactly what point it's too late, probably before your CV hits the client, I.e. before introduction. If it's after its void anyway but the agent won't understand that. Just bag the evidence in case it does go south later. They will argue you signing it after the interview and offer is still valid because of the 'or supply' option but I think that's rubbish so just get on with the gig and cross your fingers.

IMO it's worth pushing the issue but it's not worth losing the gig over. That's just my own opinion though.

[malvolio]

IPSE took this up with BIS not that long ago. The answer was that "A company is free to choose who it wants to deal with and under what conditions". So scratch the idea of forcing agencies to honour the Opt-In contracts as part of the hiring exercise. Also "Introduction" fas two meanings, "Being made known to" and "Added to the existing population". The agencies stick to the latter, whereas we use the former, which was the meaning assumed all thorough the negotiations over the opt out.

Someone has to take an agency to court for Opted-In rights that have been denied on the back of a false assumption of being opted out. Until then we're going nowhere.

[riffpie]

OK, this is my first experience of this. I assure you I am working through the thread but it's a lot to take in.

There seems to be a consensus that representation cannot be conditional based on whether a contractor opts out. However, I have this in a current email (The email contains contract, job spec and an opt out form):

'Once you are happy can you also confirm that you will be opting out of the Conduct Regulations 2003 (form attached FYI which you will need to fill in if you secure the contract)'

I will need to fill in if I secure the contract. This doesn't sound on from what I've read. If anyone has any advice I would be grateful.

Call their bluff. Just tell them you never opt out. I've had varying degrees of success with this, from them just going "ok" and issuing a different contract, to them spending a few hours trying to put me off with threats of further interviews, deeper ID checks and what not, before doing exactly none of those things and just going "ok" and issuing a different contract. I've seen the whole "can you also confirm you will be opting out" and "you will need to fill this in" thing too, it's just a trick to sneak it past you.

Steel yourself a bit, and don't blink.

[SueEllen]

My case was slightly more complex than Cojak's which is why I probably got a different response.

The agent in my case also verbally told my reviewer that I didn't have to opt-out and the client was not aware they were forcing contractors to opt-out until I told them. As the client was looking for permanent staff with similar skills they were not pleased.

Only stress about the opt-out if:
1. The agency's payment cycle is long e.g. if you are not paid within 14 calendar days of invoicing, AND,
2. The agency's handcuff clause is unreasonable. (There is lots of discussion on here about what is reasonable.)

If you haven't got a copy of the contract then ignore the opt-out by pretending you haven't seen it until you do.