ARGH.. Quick question..

[TheFaQQer]

I will give the client a call tomorrow and explain if you guys think thats a wise move.. the interview went v.well, client is a good guy so I would like to ensure he knows whats going on.

When I went through the same kind of thing with Ajilon, I rang the client because they were expecting me to arrive on the Monday and there wasn't a contract in place. I apologised and explained that I wouldn't be there because the agent hadn't got the paperwork in place and so I wouldn't be insured.

I reassured them that I was trying my best to sort it out, and I wanted to be there, but without the paperwork I couldn't do it.

What I didn't want was for the client to be waiting for me when I knew I wasn't going to be there, or the agent ringing them and saying "he's being silly, but I've got someone else who can do it..."

[tractor]

..

When I went through the same kind of thing with Ajilon, I rang the client because they were expecting me to arrive on the Monday and there wasn't a contract in place. I apologised and explained that I wouldn't be there because the agent hadn't got the paperwork in place and so I wouldn't be insured.

I reassured them that I was trying my best to sort it out, and I wanted to be there, but without the paperwork I couldn't do it.

What I didn't want was for the client to be waiting for me when I knew I wasn't going to be there, or the agent ringing them and saying "he's being silly, but I've got someone else who can do it..."

That is exactly what they will do (unless you are into something too niche of course)

[rapid]

I haven't yet contacted the client, I did advise the agency that I would be happy to contact them to let them know I'm 100% committed to the role and will be onsite the moment the paperwork has been sorted.

I've just got my QDOS review back and its OK (this is about the only good thing to happen in the past 2 days).

Do I bother battling with regards to the opt-out.. I've read a few things saying that they're not able to put the opt-out within the contract? Plus I've already met the client for the interview prior to opt-out (grey area though).

Clause forcing me to opt-out:

2.4 The Service Provider and its Interim agree to opt out of the Regulations, and unless already received by the Company, the Service Provider shall, and shall procure that the Interim shall, deliver a valid notice to that effect in accordance with paragraph 32(9) of the Regulations. So essentially signing this contract means I'm obliged to send my opt-out notice to them and if I don't I will be in breach of this contract?

In general there's the following:

12.7 If any term herein conflicts with any term in the Schedules, then the Schedules shall take precedence to the extent of the conflict; and if there is any conflict between any term in Schedule 1 and Schedule 2, Schedule 2 shall take precedence to the extent of the conflict.

and on Schedule 1 theres this: SERVICE PROVIDER REGULATIONS STATUS: Opt In

So I would assume that the schedule wins, it states I'm Opt-In (Although I know Opt-In doesn't really exist, I'm either Opt-Out or not).. so on this bases should ask them to amend this line to SERVICE PROVIDER REGULATIONS STATUS: xxxxx Ltd has chosen to not Opt-Out?

The banana are within reaching distance..

[Contreras]

and on Schedule 1 theres this: SERVICE PROVIDER REGULATIONS STATUS: Opt In

This would be good enough for me. YMMV. Only thing to add perhaps is exactly which regulations it refers to.

[rapid]

This would be good enough for me. YMMV. Only thing to add perhaps is exactly which regulations it refers to.

I'm thinking the same, I've asked to make it more clear that we're talking about the Opt-Out regs then I will go ahead and get it signed off.

[northernladuk]

You've been introduced to the client so opt out in the case is totally invalid now anyway. Couldn't he just sign it and if push comes to shove he proves it's invalid?

It's about your risk level as well. If you understand the risks of opting out as opposed to in then you can make an decision on whether you want to further jeopardise this gig. Winning a moral victory whilst benching yourself doesn't seem to make sense in this situation bearing in mind my comment above.

[Antman]

You've been introduced to the client so opt out in the case is totally invalid now anyway. Couldn't he just sign it and if push comes to shove he proves it's invalid?

It's about your risk level as well. If you understand the risks of opting out as opposed to in then you can make an decision on whether you want to further jeopardise this gig. Winning a moral victory whilst benching yourself doesn't seem to make sense in this situation bearing in mind my comment above.

Seeing that AWR was brought in to protect temps and the like and not businesses (which we like to think we are). Is opting-in morally the same as claiming JSA?

[northernladuk]

Seeing that AWR was brought in to protect temps and the like and not businesses (which we like to think we are). Is opting-in morally the same as claiming JSA?

LOL. An interesting argument. The moral issues don't really register with me as I am sure it won't with most of us. I don't think claiming JSA is morally wrong, I just think it's pretty stupid that a contractor needs to be concerned with £72 a week. Particularly when it means you have to keep some money in the company which will get taxed when it comes out so it's not even £72 a week in the long run. I just think it's a sign of a poor contractor.

With opting in I don't think protecting your income and ability to get more work without the handcuffs is so wrong. You could argue you have the moral obligation as a director to use any and all tools to protect your business. I haven't, and don't know anyone (except on here) that has been stung by opt in/out and those that have seem to have gotten their money back so I can't see why it's worth risking months on the bench to save a fight over a weeks last pay. Push for it by all means, but screw yourself out of a gig? Don't really get that. I am sure when it bites me hard I will change my tune but there you go.

Good point though

[rapid]

Round and round in circles..

So I asked for 1 change on the schedule page to clear up the ambiguity regarding the opt-in.

Please change the following line: SERVICE PROVIDER REGULATIONS STATUS: Opt In
To: Conduct of Employment Agencies and Employment Business Regulations 2003 Status: Opt-In

There was also mention of a Schedule 2 document in the below clauses:

If any term herein conflicts with any term in the Schedules, then the Schedules shall take precedence to the extent of the conflict; and if there is any conflict between any term in Schedule 1 and Schedule 2, Schedule 2 shall take precedence to the extent of the conflict.

Any obligations which the Client (or an intermediary person with whom the Company contracts in respect of an Assignment) places on the Service Provider are contained in Schedule 2 (and referred to in this clause as “Client’s Terms”). The Service Provider agrees to comply with the Client’s Terms and if there is any conflict between the Client’s Terms and any other provision of this Agreement, the Client’s Terms shall take precedence to the extent of the conflict.

So I asked for a copy, as I would want to see the doc and sign it off as part of this contract.

And regarding Schedule 2 they gave this response:

With regards to the schedule 2, you will not have a schedule 2 as this is only generated if any terms have been conflicted and needs to be reflected into your contract.

I don't see how thats possible? essentially they're saying if there's any conflict or anything they need to change in the contract its covered by a document they can put together?

I'm now more concerned than just Opt-Out.. I'm concerned that this Schedule 2 doesn't exist and should they need to they can just create the doc..

[Contreras]

I'm now more concerned than just Opt-Out.. I'm concerned that this Schedule 2 doesn't exist and should they need to they can just create the doc..

Ah, that would be fraud wouldn't it? Criminal offence with potentially a custodial sentence.

If it bothers you then reply "well if there isn't going to be a Schedule 2 please strike any mention of it from the contract".

Tbh, I think you need to start thinking on your feet with this.