more of a legal rather than financial Q

[Safe Collections]

As far as "pay when paid" clauses go, our advice is always to negotiate their removal irrespective of your opt out status.

Yes, if you don't opt out the law states that you must be paid for the work you do. However we have seen instances when an opted in contractor has still been left facing a legal claim to recover payment, as the agency believes they can rely on the clause anyway.

If you are opted out then signing a contract with this clause severely disadvantages your company in the event of non-payment. This can be further compounded if you have no contact/confidentiality clause barring you from unauthorised contact with the ultimate end client, as this means you can not confirm if payment has been made to the agency without breaching the contract.

Ultimately you could try and argue the clause is unfair and therefore unenforceable, but you will have to issue proceedings at your own cost to do so.

[TykeMerc]

That may well be the case, but since agents like to include Opt Out terms in the contracts too, signing one when you know full well you've no intention of upholding the terms isn't far short of fraud.
If it came to a court case I'd want every scrap of high ground possible, revealing that I'd signed the contract in bad faith would certainly harm that.

[tractor]

...

The law's meaningless as you know it's absurdly easy for them to hide their refusal to consider if you fail to Opt Out, now if only the morons that arranged that damn Opt Out would admit it was a cluster of things beginning with F and try to get it removed it would at least feel like some headway is made.

It won't be removed. There has been a consultation on it already and when the amended legislation is passed next Parliament, they have said they are going to keep it.

You can of course still rescind the opt out 5 mins before you arrive on site for the first time IIRC

Most agents are blissfully unaware anyway that the majority of opt outs are not compliant because of the way they are executed (we all know what that means), but if you sign a contract with a clause that they are unable to enforce when not opted out, there is no precedent yet so liability is a little up in the air. I think legal consensus is atm that any such clause would be unenforceable.

[TykeMerc]

They are breaking the law. Not much you can do about it, but that would be illegal.

The law's meaningless, as you know it's absurdly easy for them to hide their refusal to consider if you fail to Opt Out, now if only the morons that arranged that damn Opt Out would admit it was a cluster of things beginning with F and try to get it removed it would at least feel like some headway is made.

[TheFaQQer]

Agencies such a Rullion, Manchester will not submit you for roles if you state you will not be opting out.

Your choice is to either walk or be submitted. Not an easy choice when the market is 'competitive.'

They are breaking the law. Not much you can do about it, but that would be illegal.

[BolshieBastard]

Agencies such a Rullion, Manchester will not submit you for roles if you state you will not be opting out.

Your choice is to either walk or be submitted. Not an easy choice when the market is 'competitive.'

[TykeMerc]

Bad business is passing on opportunity to source income for YourCo based on lack of understanding and business acumen. Making statement like yours, 2 posts after someone explained that such a clause is irrelevant is embarrassing.

If you don't opt out then such a clause is mute, yes it might take some effort to get the money out of the agency but the clause in the contract has no effect whatsoever.

I couldn't disagree more, giving the client an easy excuse to delay or deny payment by blaming the actions of a third party you have no control of is not good business, it's utterly stupid. You've no way to get to the truth without a judge getting involved either.
I would never sign away what amounts to my right to sue the client that I have a contract with for outstanding payment. Opted IN it's irrelevant as the clause can't be there, but Opted Out (which can be obligatory to being put forwards in the 1st place) the clause is unacceptable.
I don't feel at all embarrassed by my position on this. (Oh it's a MOOT point incidentally not MUTE)

[TheFaQQer]

Yep that sort of closes this discussion. Moral of the story is yes you can quite happily sign a contract with that clause just dont sign the Opt-Out.

but still I would never sign a contract with that clause...

Thx

If you have the clause in the contract and things go wrong, you face a potentially long-winded and expensive court battle to show that the agency regulations apply to you, and you weren't opted out.

If you don't have the clause in the contract then it becomes a much easier battle to fight.

[DiscoStu]

Bad business is passing on opportunity to source income for YourCo based on lack of understanding and business acumen. Making statement like yours, 2 posts after someone explained that such a clause is irrelevant is embarrassing.

If you don't opt out then such a clause is mute, yes it might take some effort to get the money out of the agency but the clause in the contract has no effect whatsoever.

moot

[sal]

Indeed it's bad business to accept that kind of clause.

Bad business is passing on opportunity to source income for YourCo based on lack of understanding and business acumen. Making statement like yours, 2 posts after someone explained that such a clause is irrelevant is embarrassing.

If you don't opt out then such a clause is mute, yes it might take some effort to get the money out of the agency but the clause in the contract has no effect whatsoever.

[TykeMerc]

Yep that sort of closes this discussion. Moral of the story is yes you can quite happily sign a contract with that clause just dont sign the Opt-Out.

but still I would never sign a contract with that clause...

Thx

Indeed it's bad business to accept that kind of clause.

[uky kozak]

Yep that sort of closes this discussion. Moral of the story is yes you can quite happily sign a contract with that clause just dont sign the Opt-Out.

but still I would never sign a contract with that clause...

Thx

[TheFaQQer]

Reason I ask is that twice I have received this type of clause and refused to sign, so was just wondering if the contractor is protected in some way?

If you don't opt out, then you must be paid for the work that you do.

If you opt out and sign a contract with this kind of clause in it, you run the risk that the agency never gets paid and so neither do you. On the plus side, that looks good for the BETs, so that's all good then.

[northernladuk]

You read the opt in/opt out thread? That should answer your question.

It's a sticky in the business section.

[uky kozak]

If within a contract it stipulates that you get paid, when the client pays the agency (my advice is never to sign that type of contract), is there an actual time limit or reasonable time limit by law, whereby the agency must pay the contractor regardless if they have been paid? - Im guessing this would be very open? - Im just wondering if there is a law here protecting the contractor against something happening?

Lets use this scenario as an example:

Company hires Agency to find candidate
Agency sources a contrator (payment clause)
contractor fullfills the contract
contractor is still owed £XX amount of monies
Company has not paid agency
4 months has passed no monies received because company has not paid

Reason I ask is that twice I have received this type of clause and refused to sign, so was just wondering if the contractor is protected in some way?