Opt out of Conduct of employment agencies 2003 act?

[malvolio]

Not yet, but I will do if this thing escalates. Pimp even stated that PCG would advise me to Opt out!

qh

Actually the advice is to opt out but opt back in again if it is advantageous to do so. But arguably if you don't opt out before the client knows who you are, it's too late anyway.

Personally I am totally relaxed about it (although I am currently genuinely opted out). The apparent commercial benefits are pretty much illusory; if they don't pay you because they haven't been paid, they're almost certainly in dire enough straits you probably won't get paid anyway, and 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.

[TheFaQQer]

Not yet, but I will do if this thing escalates. Pimp even stated that PCG would advise me to Opt out!

qh

Tell him that you've spoken to the PCG, and their advice is that you can't opt out, so the argument is a moot point anyway.

Should be a quick and simple win from there - how can the agent move from there? Only move from there is either give you what you want, or to tell you that he knows more than the legal advice guys from the PCG (who a moment ago he said you should ask) - so was his advice rubbish last time, or this time??

[Bryn Rogers]

Opting Out

My agency now tell me they have to contact the client to inform them I have refused to Opt-out and that I am no longer 'allowed' to do > 40 hours. This has delayed my ability to log time with them on their billing system, and will delay payments too.

This partilcular client does offer overtime and its stated in my contract about the rates etc.., there is no provision in the contract that states 'only applies if the contracter has opted out', what would you recommend I do about this?

Ta..

[TheFaQQer]

My agency now tell me they have to contact the client to inform them I have refused to Opt-out and that I am no longer 'allowed' to do > 40 hours. This has delayed my ability to log time with them on their billing system, and will delay payments too.

This partilcular client does offer overtime and its stated in my contract about the rates etc.., there is no provision in the contract that states 'only applies if the contracter has opted out', what would you recommend I do about this?

Ta..

I refer the honourable gentleman to the remark I made some moments ago.

If you do the overtime, and the signed contract says that you get paid for that overtime, then you do the overtime and bill the overtime. When you don't get paid, you sue for the money.

OR you opt out, because it's meaningless now anyway - you can't opt out, so what difference does signing an invalid piece of paper make?

OR you walk away because if the agency are this twatty about something like this, then it's probably not worth the hassle.

OR you get the client on-side and have them explain in no uncertain terms that if they sign off an agreement to pay you for the work, including overtime, then they expect you to be paid for it.

As an aside, I'm personally wary of such concepts as "overtime" - overtime is what permanent employees get paid, not contractors.

[Lewis]

I initially refused to opt-out for my current contract and the agency were clearly very bothered by it. A senior guy called me and advised me to chat with QDOS (who they knew did my contract review) saying that QDOS would clarify it was an IR35 risk.

I did call QDOS and they did advise me to opt-out due to IR35.

I assumed they knew what they were talking about, this was about 8 months ago now.

[quackhandle]

I did call QDOS and they did advise me to opt-out due to IR35.

Everything I have read about the Conduct of Employments agencies act states that it has nothing to do with IR35, ie - it is nothing either way ergo IR35 neutral.

qh

[Lewis]

Everything I have read about the Conduct of Employments agencies act states that it has nothing to do with IR35, ie - it is nothing either way ergo IR35 neutral.

qh

Which is what everyone has said on this thread, so my question is why are QDOS, the IR35 experts, saying it does matter?

[malvolio]

Which is what everyone has said on this thread, so my question is why are QDOS, the IR35 experts, saying it does matter?

Good question... they need to answer that one.

Although not an answer, there is the point that you can use the opt-out a a bargaining chip to get a better IR35-friendly contract since you can mnimise the effect of some of the employment-indicating clauses if you're not opted in (for example, agency not paying until they are paid themselves adds a degree of commercial risk to the engagement that wouldn't be borne by a permie).

Bu I agree with the others, opting in/out and IR35 are totally divorced areas.

[SueEllen]

Which is what everyone has said on this thread, so my question is why are QDOS, the IR35 experts, saying it does matter?

All I know is when I've used solicitors specialising in IR35, IT, commercial law etc to argue with agents about opt-in/opt-out the agents back down.

Though saying that there are agencies out there who do supply the same contract whether you are opted-in or out. The clauses for opted-out contractors are clearly highlighted and the agent doesn't care if you are opted-in.

[Wanderer]

pimp stated "So you would be prepared to walk away if [client] are unhappy about this?

Answer:

1. I'm not threatening to walk away, I'm just telling you that I'm not going to opt out.
2. ARE the client unhappy about this or is it only the agent? I really can't see why the client would care because it doesn't have much to do with them any way.
3. Is your agency making the contract offer conditional on me opting out?

Wow, never had that before, no one has ever opted in before."

More nonsense.

All I can think of is that the agency are feeding a line of bulltulip to the client and confusing this legislation with some other one like the Agency Workers Regulations and telling the client that it will make things difficult for them if you don't opt out.

Tell them you are going to have a chat with the client to clear up what is obviously some amount of confusion between them and the agency over this opt out business. Then watch the agent try and qualify for the Olympic back peddling team.