Contract Restriction!

[Wanderer]

Against advise I started earlier this week

It's a high risk strategy, but I guess the alternative is to not be working and not getting paid.

Before you talk to the client, give the agency an ultimatum to sort it out with a non opt out contract or you will have to bring the client into it and that will make the agency look like a right bunch of idiots.

Also tell the agency that you are going to take it up with the REC and the BIS to see what their opinion on the matter is.

If it comes to talking to the client then explain that not opting out is in their best interests too because of the restrictions on fees the agency can charge them and limitations on restraint of trade if you ever want to work for them again.

Good luck and respect to you for standing up to these idiots.

[malvolio]

I've not seen the PCG do anything to combat the abuse of the opt out. All I've seen is them working with the agency representatives to lobby for keeping the opt out when the government wanted to abolish the opt out.

Can you point me to an example of what they have done? Have they publicly taken this up with the REC and APSCo? Have they ever investigated a case where the opt out was abused? What was the outcome?



The PCG's line is that "most members will want to opt out" so they are in denial about the problem affecting their members so I doubt that they will do anything. If they did actually take the problem seriously then I'd suggest that they:

1. Take the matter of the abuse of the opt out up with the REC and APSCo along with a few example cases (plenty are posted on this forum).

2. Insist that Agencies do not offer contracts to non opt-out contractors with terms which are less favourable than the opt-out contract (as the agency have done in this case).

3. Insist that REC and APSCo send clear guidance to agencies to remind them that the opt out status with regards to the Agency Conduct Regulations is in no way related to the worker's status under the Agency Worker Regulations and that misleading people into thinking that the two are related is completely unacceptable.

4. For the REC and APSCo to publish this guidance clearly and in plain language on their website so the agencies can't fall back on their old tricks of denying that they can understand the laws that regulate their business.

PCG's CC Elections are coming up soon. Why not go for a seat and argue your case form the inside and from a position of knowledge*? They are in constant dialogue with REC, APSCo (although they don't have much influence over anything), BIS and various other key bodies on a host of subjects including this one. And, as I keep saying, PCG support the opt out because a significant minority of members need it to safeguard their own business model; the basic problem with a member-led organisation is first you have to listen to your members.



* I know - don't want to join, CBA, haven't got time, don't see why I should, easier to moan than do stuff, what am I paying you for... heard it all before.

[Bones]

I replied to them this morning with this,

Your legal dept are confusing the Agency Conduct Regulations with the Agency Workers Regulations, which is either accidental or deliberate, neither is good.

The regulations have no adverse effect on the consultant or client, they are designed to protect both. The onus is on the agent, I wonder if that is your main reason for wanting them removed?

Stating that opt out is voluntary but offering no viable alternative is coercion, exactly what the Agency Conduct Regulations are design to address and against REC code of practice. Also REC doesn't define the legal status of anything.

You leave me no alternative but take this issue up with REC, BIS and the client as to why you have wasted a week acting against all guidelines and regulations. This issue is very clearly defined by all parties and what you are doing can attract a fine of £50k.

They have just come back to me, this is the note sent from their Commercial Legal & Risk Manager to the agent I have been talking with.

There has been no deliberate attempt at confusion, this is simply a complex area of law.I strongly disagree that there has been any attempt at coercion – we are simply stating our terms of business – it is for the other Party to decide if these are acceptable and it is a commercial reality that we cannot accommodate all the changes that are requested. In effect Mr Xxxxxxx is demanding we engage him on his terms or we are in some way in breach of statutory or other obligations, that is absurd. I cannot see that he has a legitimate complaint to take to the REC because we want to the use the REC standard terms – but that is up to him pursue.

They are sticking to the defence that the contract offered was a std REC doc and they see no reason to change it. So they are basically saying there is no such thing as a Ltd company contract outside IR35 that doesnt include the opt out clause or at leased not produced by REC. Anybody know if they do?

P.S They appear to be making a mockery of the whole contract review process, since they are saying we will not change a single word of it anyway!

[SueEllen]

The majority of agencies will change a contract if you get a solicitor involved from the start.

Yes you have to pay them but paying a few hundred pounds for someone to put the clauses that stop your contract being completely one sided who is trained and experienced in doing so, is less hassle than fighting with an agent's director or agency legal advisor who has been sent on a training course.

Oh and all the agencies I've been through in the past 4 years are members of REC....

[Bones]

The majority of agencies will change a contract if you get a solicitor involved from the start.

Yes you have to pay them but paying a few hundred pounds for someone to put the clauses that stop your contract being completely one sided who is trained and experienced in doing so, is less hassle than fighting with an agent's director or agency legal advisor who has been sent on a training course.

Oh and all the agencies I've been through in the past 4 years are members of REC....

Its an interesting point because there are people here who will stick the boot in when your down and call you and idiot for not getting the contract reviewed by QDOS or Bauer and Cotterill etc (Not mentioning any names....northernladuk) when the agent will simply say, "so what!" "we are happy the contract is fine"
Now you are saying that having paid for a review I need a solicitor engaged from day one to try and force/threaten the agent to change anything!...Maybe/maybe not going to happen.

As a matter of interest, have you had the opt out removed from a REC contract?

[northernladuk]

Its an interesting point because there are people here who will stick the boot in when your down and call you and idiot for not getting the contract reviewed by QDOS or Bauer and Cotterill etc (Not mentioning any names....northernladuk) when the agent will simply say, "so what!" "we are happy the contract is fine"
Now you are saying that having paid for a review I need a solicitor engaged from day one to try and force/threaten the agent to change anything!...Maybe/maybe not going to happen.

As a matter of interest, have you had the opt out removed from a REC contract?

In my defence I don't think I have ever stuck the boot in or called anyone an idiot for not having their contracts reviewed. I have indicated they are daft not to and I will stick by that. IR35, although arguable a low risk, is still not something to dick around with and not paying 99 quid (or free for the basic check with PI/PL) just to prove diligence is a pretty stupid thing to do. It's so cheap and quick to do why the hell wouldn't you. Yes some agencies won't bend. Hays were well known for it but I believe their contract is better now. Touch wood I haven't had a situation where an agency/consultancy have forced me in to a contract that didn't meet my criteria.

I would actually argue SueEllens post and say that a majority of agents either have or are willing to change a contract well before a solicitor gets involved and tbh if the contract failed an IR35 check I wouldn't be overly worried if I could make sure the working practices did fit.

All that said and done I am not quite sure what this point has to do with Opt In/Opt out though as it has no bearing on IR35 whatsoever. The whole thread isn't about IR35 and SE's comment I believe is not aimed at IR35 either so don't know why you have bothered to bring it up.

[SteelyDan]

It's a high risk strategy, but I guess the alternative is to not be working and not getting paid.

Before you talk to the client, give the agency an ultimatum to sort it out with a non opt out contract or you will have to bring the client into it and that will make the agency look like a right bunch of idiots.

Also tell the agency that you are going to take it up with the REC and the BIS to see what their opinion on the matter is.

If it comes to talking to the client then explain that not opting out is in their best interests too because of the restrictions on fees the agency can charge them and limitations on restraint of trade if you ever want to work for them again.

IMHO, as you've started (& therefore deemed to have agreed to whatever contract you have signed anyway) I would ignore this tripe ^, otherwise you're going to be perceived as a 'problem child', whinger, or whatever. Just get on with the role and ensure your working practices keep u away from the IR35-isms.

[SueEllen]

Its an interesting point because there are people here who will stick the boot in when your down and call you and idiot for not getting the contract reviewed by QDOS or Bauer and Cotterill etc (Not mentioning any names....northernladuk) when the agent will simply say, "so what!" "we are happy the contract is fine"
Now you are saying that having paid for a review I need a solicitor engaged from day one to try and force/threaten the agent to change anything!...Maybe/maybe not going to happen.

As a matter of interest, have you had the opt out removed from a REC contract?

None of the agents claimed their contracts were a REC standard one as a defence for being difficult about any clauses including the opt-out.

They just did the usual of claiming no other contractor had got them to alter their standard contract. I always tell them straight since I know/met other contractors who have used you and got the contract altered it's not true.

To be honest as already stated you have started so worry about your working practices.

Also if the agency is paying you within a week of invoicing I wouldn't stress about the opt-out.

Having had direct clients anyone - agency or direct client - who pays an invoice within 14 days let alone a week is paying you quickly. It's when they want to pay you 30 working days in arrears on monthly invoicing you need to worry.

[Wanderer]

PCG's CC Elections are coming up soon. Why not go for a seat and argue your case form the inside and from a position of knowledge*?

That's like telling someone who is complaining about the government to run for prime minister.

I have no political influence within the PCG other than being a member so it would take a considerable amount of effort to change anything there. I have seen other people more powerful than me try to get them to do something with regards to the abuse of the opt out and nothing appears to have happened.

My chosen strategy at this stage is to fight back against agencies where I can and help raise awareness of the problem and advise people in places like this forum which is far more productive than trying to influence the PCG who are very set in their ways. If we can get enough people to protest to the BIS/REC/PCG then perhaps something will happen. I don't hold my breath but neither will I just sit by and watch as agencies bully contractors who do not choose to opt out.

[Wanderer]

As a matter of interest, have you had the opt out removed from a REC contract?

I have contracted through agencies which were a member of the REC and they had single contract for opt in/out which simply marked certain clauses (withholding payment and restraint of trade etc) as being not applicable unless the opted out was signed. Needless to say, I didn't accept the opt out.

You should take this up with the REC, the agency are being utterly unreasonable. There is no reason why they should deliberately sabotage your IR35 status simply because you won't opt out.

Also, you've started work now so there is no way you can opt out even if you did sign the opt out contract. Of course the agency don't care about that, they will just pretend that you are opted out even though the law clearly states that you must opt out before the "introduction or supply".

Of course, we would love to know who the agency are too but I don't blame you if you don't want to say...