Reply to: Agency withholding funds

[tim123]

Ok so in a word what does the employment act mean to the average joe on the street.

Nothing.

And that's exactly what the act intended. It is mostly aimed at the agency/employer relationship and imposes clauses, that are to the benefit of the worker, without the worker having to worry about it.

Unfortunately, us Ltds are considered to be more capable of understanding this contract lark and thus are allowed to opt out of the regs. This means that some clauses that historically would never have been in a reasonable contract, are explicitely seen as not compulsory and are now sometimes excluded.

IMHO, a clause which allows the agent not to pay you, unless they have been paid, should be struck out or walked away from. It has no part in a normal contract and usually wouldn't be there.

tim

[Churchill]

Who should be shagging sheep back in Kiwiland...

In kiwiland mailman was the sheep.

HTH.

[boredsenseless]

Ok so in a word what does the employment act mean to the average joe on the street.

It allows mailman to add further weight to the argument that he is a disguised employee

[Sockpuppet]

Well then you are a f8cken idiot!

You get what you deserve and opting out was your big mistake!

You get about as much sympathy from me as those whiney ass TA cry babies who didnt want to serve in eye-rack and those jihadis who run the beeb!

Mailman

Ok so in a word what does the employment act mean to the average joe on the street.

[boredsenseless]

>The client is two months behind in their payments and have just received >another invoice.

I'd be inclined to try a different tack. Have a quiet word with the end-client PM and / or Admin. Firstly get confirmation that this non-payment statement is true. If it is not true then you know that the agent is telling porkies and is very likely in trouble - use all methods to get payment from them and get the heck out. Now.

If the statement is true try and find out why. Maybe a misunderstanding or error. Perhaps someone in accounts is sick and nobody is aware of the situation. Maybe your work is in question. Whatever - I’d be talking to the horse not the bookie.

Of course it could be as simple as the agency agreed to 3 month payment terms with the client and now the agency are trying to limit their exposure by not paying you until they get paid

[Mailman]

I have also opted out of the "April 2004, Employment Agencies & Employment Regulations Act".

Well then you are a f8cken idiot!

You get what you deserve and opting out was your big mistake!

You get about as much sympathy from me as those whiney ass TA cry babies who didnt want to serve in eye-rack and those jihadis who run the beeb!

Mailman

[DS23]

>The client is two months behind in their payments and have just received >another invoice.

I'd be inclined to try a different tack. Have a quiet word with the end-client PM and / or Admin. Firstly get confirmation that this non-payment statement is true. If it is not true then you know that the agent is telling porkies and is very likely in trouble - use all methods to get payment from them and get the heck out. Now.

If the statement is true try and find out why. Maybe a misunderstanding or error. Perhaps someone in accounts is sick and nobody is aware of the situation. Maybe your work is in question. Whatever - I’d be talking to the horse not the bookie.

[ASB]

Not working until you are paid isn't an option until at least Friday since you are not yet 'not paid' and this would deffo be a breach on your part.

Quite so, but it gets a bit greyer than that. Just because the agency are in breach (e.g. late in paying) does not entitle you to do the same (e.g. walk).

However the directors fiduciary duties come into it. If they genuinely believe (or can reasonably assert) that they expect the breach to continue then the directors are legally obliged to consider the most appropriate way to mitigate thier losses - and further ones. Walking can thus becomes a risky strategy and can lead to further complications in any resultant claims. However it is not uncommon for contracts to have clauses which can release one party from their obligations as a result of a breach by the other.

[rootsnall]

But thats the point - it IS costing them as per the contractual agreement...

I would get the agency to put in writing ( ask for an email ) that they wish for you to continue at the client. Put as much info as you can in the email you send to them and ask for a reply. It will make them have a good think about the situation if nothing else. They are maybe just using you to put some pressure on the client for payment. If the agency is defo solvent you should be OK however it pans out. However if you don't want to risk working any more unpaid days you can always go off sick, again send an email to cover yourself, it may force the situation.

Whatever happens I think you should get out of there as soon as possible, I avoid smaller agencies and clients after having similar payment issues a few years back. I made it clear to the agent and client they weren't going to get much more work out of me and asked could we mutually agree to end the contract. It worked after various aggro and I eventually got paid.

[Not So Wise]

*As others have stated, client not paying agency is the agency's problem, not yours. Even if the client never pays them the agency still owes and has to pay you the money. This is why agencies receive the margins they do throughout the contract instead of a one off placement fee, to act as a "glorified factoring service"

*You can do nothing till they are actually late in paying (check your contract payment ToC's)

*Once they are late in paying and if still singing same tune (will not pay till client does) send written notification to agency and client and down tools immediately.
On the notification to client do not do a "he says/she says" with the agency blaming the client, just put quite clearly that the agency has failed to pay for your services already rendered, the reasons the agency has failed to pay are immaterial to everyone.

You have not mentioned the agencies name, but if they are small/unknown start legal proceeding immediately and look for new contract, if they are larger and unlikely to be insolvent (or close to) you can try further negotiations with agency to resolve the matter and if that fails then move to legal (ps others mentioned above the financial status of the client, this is immaterial, if the agency goes under while the client is ok you will still most likely end up out of pocket big time)

And learn the lesson from this, don't leave yourself overexposed to agency's by contract terms that mean you can have a 2 month gap between work done vs payment or by accepting excuses for late payment. That lesson cost me around a 6 figure amount a few years ago and now my rule (contractually) is if it is a monthly payment then they have 7 days to pay or the "service is cut off"

Agencies receive far to much money from my work for me to tolerate them screwing about

[ratewhore]

I'll bet they are, if it doesn't cost them anything.

But thats the point - it IS costing them as per the contractual agreement...

[expat]

At present the agency have stated that it's up to me whether I want to continue working for the client. They are happy for me to continue working ...

I'll bet they are, if it doesn't cost them anything.

[tim123]

If the client goes bust owing the agency money, this is the agency's problem. Unless that is this client represent so much of the agent's business that it causes them to go under too.

The agency (or its administrators) have to treat all the creditors (with the same legal status) the same. They cannot pick and choose which ones they pay based upon which client they were working for. Either everyone gets 100%, or everyone gets 0% (or some number in between).

So, in essence, if the agency see a risk of non payment from this client they should be telling you not to continue working there. The fact that they aren't doing this, means that the risk is with them.

tim

[Sockpuppet]

At present the agency have stated that it's up to me whether I want to continue working for the client. They are happy for me to continue working but I need to find out from the client if they will be able to pay in the future and therefore I would be paid in turn.

Ask the agency if they are willing to pay you to stay onn site.

The food chain is you -> agency -> client

At the end of the days its the agents decision to keep you or pull you as it is thier cash on the line. If they are not willing to keep you on site then you wont be going back.

Whatever you do dont agree to go back on the understanding that you getting paid is down to the client paying up not good business sense.

[BrilloPad]

Are there other contractors in the same position as you?