Agency regulation

[TheOmegaMan]

No, some know me here as Jabberwocky. The name brings with it a long history of intellectual discovery tempered by flashes of inspiration and razor sharp wit. Few have survived an encounter with the Wocky.

Alas, Jabberwocky is no more, but the spirit lives on in TheOmegaMan. I am Legend.

[Bluebird]

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[Denny]

I happen to agree with Omega Man. I think all the points are relevant and true to contractor experiences. However, I would do things differently. I would like to address a few points that are worth noting and an alarming new discovery that just happen to come my way yesterday which brings this shoddy industry into further disrepute.

1. We need to see an end to the recruitment industry's sales model. Instead of recruiters / EBs being paid off the backs of our efforts, they should be paid for their own efforts to field CVs and source candidates. The client should pay for this as they are hiring the EB as a supplier of 'their own' services not ours. It is also irrelevant for EBs to claim they are supplying 'contractors' when we are business owners in our own right - therefore we must, be default, be supplying our own services to the end client. Furthermore, the EB hasn't purchased the right to claim that our services are their own for the duration of representation and contractual period.

The EB fee would be in two stages: A one off introductory fee for fielding / sourcing and another further one off fee - depending on the length of the contract. The hiring part of the fee would be sufficiently large enough to cover their payroll service as well. We need to see an end to mark ups based on contractors being on site and continuing on after extensions as this is completely unacceptable and, frankly, quite degrading.

This arrangement would also put a stop once and for all to EBs claiming they are selling our services and that they are selling us into a role or finding us a job. They can do this at present becuase all the pre-hire work is not paid by the client so it is difficult for anyone to really work out who is doing who a favour here. If EBs got paid for their own work and not ours, then this commercial relationship between client and EB would be unequivocally clear. We would be doing the EBs a favour by making our availability known to them.

2. All other negotiations would be direct between contractor and hiring manager (not HR or supply chain) leading to transparency about contractual arrangements with the removal of hidden contracts between EBs and clients that we don't get to see the content of.

The hirer would be forced to concede that contractors are B2B operators and outside iR35 by default as we wouldn't be so easily challenged by Gordo's mob as being de-facto employees, and that the criteria laid down by the IR for being in business on their own account would be the only assurance that the hirer hasn't inadvertently hired an employee by accident for 'claiming rights' as an employee. All hirers would be forced to evaluate their relationship with contractors as being mainstream businesses not some sort of weird 'third way' of working that is just another way of ensuring they control us as employees but with none of the rights associated with being an employee.

Of course, solicitors to check the contract would still be used on both sides to make that easier. At the moment, clients are still under the false impression that sourcing contractors through an EB places a safety barrier between themselves and the contractor for employee rights purposes. Clearly they are unaware of the Muscat -v- Cable and Wireless case where it was blatently shown that this was not the case because the EBs role (whether they tax and NI at source or not) is to place the temp under client control for day to day work instruction purposes (as are all EBs) and the judge ruled that by default the EB was not really the employer, but the end client was.

3. All job advertising boards that deal with contractors (third party suppliers) excluding other temps who they tax and NI at source, should refer to jobs advertised as 'flexible work availability sites' and contractors not referred to as job seekers, as they currently are. All EBs that deal with contractors (not temps) should be legally re-named as 'self employment businesses' not employment businesses.

4. All EBs should specialise in particular industrial and market sectors and staffed by waged employees with annual bonuses for performance for sourcing and fielding the right CVs for the client leading to a second fee payment for the actual client hire. No EB should pay their staff commission).
EBs knowledge of the industry they are sourcing for should be evaluated by regular examinations to gain the right to an annual 'practice certificate' which should be mandatory for being in business as a self-employment business.' This assures self-employed and hirer that the best contractors are being introduced to them for their one off fee because the staff understand the sector sufficiently well to place targetted and well worded adverts onto the flexible work availability boards.

5. Until the above changes take place, all EB to client contracts should be available to contractors to view - to ensure back-to-back arrangements are in fact in place.

ALARMING NEW DISCOVERY:

Rang up a client site yesterday (HR director) for a role they wanted filled. The EB I had contacted reneged on their promise to represent me giving me the right to contact them directly and send my CV over to them. During our conversation, the HR Director told me something quite interesting.

He said that his hands were tied and that he had to go through protocols for hiring contractors (through suppliers EBs) and that he couldn't consider my CV directly. I thought this odd as he is the client who has the upper hand over the EBs he decided to use to source for this role. He then went on to tell me that legally he had no choice but to go through these suppliers.

This implies to me (although it could be interpreted as a fob off) that the EBs are possibily putting into place contractual arrangments with their clients legally preventing the client from ever considering hiring freelancers directly - irrespective of whether the freelancer has approached the EBs acting as the clients suppliers. In other words the EBs are putting a gun to the clients' heads and to all freelancers everywhere who may wish to go direct to clients and may not even have attempted to contact the EBs for availability, let alone be represented by them.

If this is true then this has to be an illegal restriction of trade. It's one thing for EBs to tie in contractors who contact them and are represented by them, quite another casting their net wider to ensure that their clients can never hire directly from anyone who may not even use EBs to make their availability known to them for representation purposes.

Of course, not all clients or EBs will have these arrangments in place. But it seemed odd to me the way the conversation was framed as if the HR Director was under the control of the EBs they use as suppliers, presumably for a trade off regarding lower mark up rates for high volume model supplies of contractors.

All freelancers should be free to compete with EBs by going direct and the clients should be able to freely choose whether to see speculative CVs from freelancers or simply rely on EBs for sourcing. There should be no question of EBs putting restrictive clauses in contracts with clients preventing them from considering direct approaches from freelancers other than for those contractors that contacted their supplier EBs for sourcing purposes first of all. Otherwise, the entire freelance community is being 'restricted for trading' by EBs they have nothing to do with regarding certain organisations using contractors. This can't be right or even legal.

Can anyone confirm or deny that this can happen? If so, I suggest we all get onto the PGC and make this problem known. This is 'protectionism' of the worst kind and possibly breaches the Unfair Trading Laws and completely flies in the face of DA and other recruiters on here who claim that their industry exists because the 'free market' dictates that they are needed plus it smashes into smithereens their provocative comments to contractors when they say 'if you don't like EBs and don't like our industry, go direct.'

[TheOmegaMan]

That's what happens when people feel threatened. Unlined gifs don't bother me. I have greatness on my side - bring it on, bring it on ...

[interested]

Denny -

As ever when reading your posts I think there are some interesting points, but then I'm afraid I am left thinking that you have absolutely no idea how large businesses work.

[TheOmegaMan]

Well I am open to new models Denny and thank you for your reasoned discussion.

But how would this system be enforced ? If it not enforced then how will it anything change ? If I understand correctly why would the client pay an agency an additional sum for its services when it could just do what it always does and takes CVs from every EB ?

[Bluebird]

Denny, I know that public sector clients must go through gvt approved schemes for procurement - think it used to be called CATLIST.

[interested]

Denny, I know that public sector clients must go through gvt approved schemes for procurement - think it used to be called CATLIST.

Catalist. Not compulsory, mainly ignored. Pointless

[The Farmer]

I thought it was S.M.A.R.T now.

Mis-nomer if ever there was one.

[shaunbhoy]

No, some know me here as Jabberwocky. The name brings with it a long history of intellectual discovery tempered by flashes of inspiration and razor sharp wit.

Sadly, the gaps between intellectual discoveries were ridiculously long, the flashes plagued by brevity and infrequency not to mention the paucity of inspiration, and the wit as sharp as the average pumpkin.
New name, same old rubbish!