Reply to: Woes Around Opt-Out and Payment

[Lost It]

And on the basis of this...

I joined Ipse.

Thanks for the nudge.

[malvolio]

No its highly relevant.

If opted out the clause saying that the agency only needs to pay him if the agency is paid would be valid.

If opted in that clause is invalid and the agency is obliged to pay for all signed timesheets.

...unless he has actually signed an unconditional agreement that they are not so obliged. But that would be a really silly thing to do. The OP's problem is that the payment clause is conditional on his status but those conditions are not clearly stated nor understood. FWIW I think he should be paid in full.

[eek]

so am I right in saying that the OPs opt-in/out status is irrelevant to payment?

No its highly relevant.

If opted out the clause saying that the agency only needs to pay him if the agency is paid would be valid.

If opted in that clause is invalid and the agency is obliged to pay for all signed timesheets.

[Lance]

The main other benefit of remaining inside is that the timescale to change agency / bypass the agency completely is typically more generous than a contract would give you.

so am I right in saying that the OPs opt-in/out status is irrelevant to payment?

[missinggreenfields]

Maybe I'm being a bit thick, but isn't the point of the opt-out so that agencies don't have to pay you if you don't have a signed time sheet?

The main other benefit of remaining inside is that the timescale to change agency / bypass the agency completely is typically more generous than a contract would give you.

[malvolio]

Maybe I'm being a bit thick, but isn't the point of the opt-out so that agencies don't have to pay you if you don't have a signed time sheet?

As I understand it, if the OP has a signed time sheet for the work period then the in/out status is irrelevant and the agency owes the money.

Certainly the contract I have at the moment has no 'if client no pay, we no pay you' clause. Maybe that's unusual though.
The only exception being expenses as the agency will not pay those until they've received payment.

The point of the opt out, and the reason it was negotiated for in the first place, is so that small businesses can use sub-contractors or temporary staff without getting wrapped up in all the protective measures that the Agency Regulations would otherwise saddle them with. The thing about "no pay before we get paid" is a very necessary commercial protection for most if not all small businesses in any industry

Agencies, being ever helpful and supportive, saw it as a way to de-risk their payment schedule, enforce long-running handcuff clauses to protect their income and minimise the effort they would need to find, vet and approve candidates by getting the contractors to put themselves outside the scope of the regulations and so not have to comply with its various demands. Hence the word "abuse".

The Opt Out has a real purpose, but it's nothing to do with agencies.

[Lance]

Maybe I'm being a bit thick, but isn't the point of the opt-out so that agencies don't have to pay you if you don't have a signed time sheet?

As I understand it, if the OP has a signed time sheet for the work period then the in/out status is irrelevant and the agency owes the money.

Certainly the contract I have at the moment has no 'if client no pay, we no pay you' clause. Maybe that's unusual though.
The only exception being expenses as the agency will not pay those until they've received payment.

[malvolio]

It's a fair question.

In the right context. It has no place here.

But FTAOD it is a genuine and supportable offer, and has been made before.

[Contreras]

Is this a campaign promise of yours?

It's a fair question.

[missinggreenfields]

Not really. That was about Direction, the fact that the agency cocked up the Opt Out, meaning he was opted in anyway, is not that relevant. What we want to prove is the precise point in the process of hiring that the opt out is valid.

In other words, we need a case where the agency is denying something on the basis that the contractor is opted out when he (and we) believe he isn't.

IIRC, the case was won by the agency proving that there were no regulations to opt out of anyway. Nobody cocked up the opt out - the regulations didn't apply so there was nothing for the contractor to opt into / out of.

[SueEllen]

Which is why I think it would actually be a very hard battle to actual fight. You would need to find a counter party willing and able to fight whilst their legal insurance screams pay the amount owed its far less than the £00,000s fighting this will cost...

As others have said IPSe need to pick their battles carefully. I think were they to fight this they would continually win at the first huddle until and unless agencies felt they had to have a definitive answer. And I reckon they like the ambiguity.

Even if the agency was stupid enough to go to court and see it through if the agency lost I doubt they would appeal so then it wouldn't set a legal precedent.

There was some agent on here last year ranting how the opt-out done the agency's way was valid when his case had nothing to do with it.

[malvolio]

Which is why I think it would actually be a very hard battle to actual fight. You would need to find a counter party willing and able to fight whilst their legal insurance screams pay the amount owed its far less than the £00,000s fighting this will cost...

As others have said IPSe need to pick their battles carefully. I think were they to fight this they would continually win at the first huddle until and unless agencies felt they had to have a definitive answer. And I reckon they like the ambiguity.

IPSE will fight any case that matters to the wider community. The money is there, once there is a viable case to be fought.

[malvolio]

Did a suitable victim not step up in BIS v CNL?

Not really. That was about Direction, the fact that the agency cocked up the Opt Out, meaning he was opted in anyway, is not that relevant. What we want to prove is the precise point in the process of hiring that the opt out is valid.

In other words, we need a case where the agency is denying something on the basis that the contractor is opted out when he (and we) believe he isn't.

[MrMarkyMark]

Really good stuff there guys, cheers

[missinggreenfields]

The only way to be absolutely certain is to send an Opt Out letter with the application for the role, before anything else has happened (assuming you want to opt out of course) and then totally ignoring anything else you may be sent after that point. Any other option almost certainly means you not opted out since you can't opt in - you are in by default. And as I said earlier, you have to be careful about what's in the contract. If you agree to the agency pay-when-paid clause then it will apply regardless unless it is stated to be dependent on your status re the opt out.

And as young Pondlife says, until it goes to court it will never be fixed. Which is why I keep asking for a suitable vict... hero to step up.

The agencies only push for the opt out because it saves them time, money and risk incidentally, and I have it on good authority that a major one did an audit on their contracts a while back and found virtually all of them were handled wrongly

Did a suitable victim not step up in BIS v CNL?