Reply to: Do you Opt Out?

[Contreras]

We reckon above 95% for our UK business opt-out, so I'd say the APSCo view aligns to ours.

Do you have a figure for only Ltd Co. contractors? I.e. excluding umbrellas and PAYE temp workers.

[kal]

We reckon above 95% for our UK business opt-out, so I'd say the APSCo view aligns to ours.

Is that because you give them no choice? No opt out = no contract. I believe 95% voted for President Assad in Syria's recent 'democratic' elections...

[tractor]

.....

It's interesting to read what APSCo told the House of Lords Select Committee on Personal Service Companies

It is the same with the Conduct of Employment Agencies and Employment Businesses Regulations: personal service company contractors can opt out, and of our members 98.6% of their contractors do opt out of those employment-related protections.

Perhaps those of us on this forum aren't representative of the larger group of contractors? It's still very puzzling indeed.

When you bear in mind the obfuscation, downright lies and failure to attend when requested by HMRC, it is clear that those with a vested interest will not tell the truth. That includes REC, APSCO and HMRC.

You can see the spin in their every sentence - in the highlighted piece above, I think they meant 'work seeker' related

[tractor]

...

We reckon above 95% for our UK business opt-out, so I'd say the APSCo view aligns to ours.

I know who I would believe and who I wouldn't

[Andy Hallett]

It's interesting to read what APSCo told the House of Lords Select Committee on Personal Service Companies

It is the same with the Conduct of Employment Agencies and Employment Businesses Regulations: personal service company contractors can opt out, and of our members 98.6% of their contractors do opt out of those employment-related protections.

Perhaps those of us on this forum aren't representative of the larger group of contractors? It's still very puzzling indeed.

We reckon above 95% for our UK business opt-out, so I'd say the APSCo view aligns to ours.

[Wanderer]

So the results are (Bear in mind that two of us admitted clicking always whent they meant never) .... 32 people responded, of those....

35% ALWAYS opt out.
65% NEVER or SOMETIMES opt out.

A far cry from what is claimed by some commentators and most agents!

It's interesting to read what APSCo told the House of Lords Select Committee on Personal Service Companies

It is the same with the Conduct of Employment Agencies and Employment Businesses Regulations: personal service company contractors can opt out, and of our members 98.6% of their contractors do opt out of those employment-related protections.

Perhaps those of us on this forum aren't representative of the larger group of contractors? It's still very puzzling indeed.

[speling bee]

So the results are (Bear in mind that two of us admitted clicking always whent they meant never) .... 32 people responded, of those....

35% ALWAYS opt out.
65% NEVER or SOMETIMES opt out.

A far cry from what is claimed by some commentators and most agents!

No, it's not scientific but it's better than nothing, so don't complain you didn't get the party you wanted if you couldn't be bothered to vote. Chances are anyway that many of those who sign opt outs are nothing of the sort because they weren't signed before introduction but we'll never get numbers like that nor will we get an accurate number on those who would have not opted out but caved in to pressure from the agent.

Feel free to use the numbers to discredit your agents' claims

I've never worried about what agents say about other contractors. The agency has a position, and MyCo has a position, which is that I am not opting out.

[tractor]

...

So the results are (Bear in mind that two of us admitted clicking always whent they meant never) .... 32 people responded, of those....

35% ALWAYS opt out.
65% NEVER or SOMETIMES opt out.

A far cry from what is claimed by some commentators and most agents!

No, it's not scientific but it's better than nothing, so don't complain you didn't get the party you wanted if you couldn't be bothered to vote. Chances are anyway that many of those who sign opt outs are nothing of the sort because they weren't signed before introduction but we'll never get numbers like that nor will we get an accurate number on those who would have not opted out but caved in to pressure from the agent.

Feel free to use the numbers to discredit your agents' claims

[tractor]

...

No, they won't be looking at a big bill from the agency. You keep repeating this nonsense in the hope that people will start believing it and we grow tired of correcting you.

Go and read the legislation again, pay particular attention to section 10 which is Restriction on charges to hirers.

The limits on the handcuff clause apply to the Agency in it's dealings with both the worker AND the hirer so there are definite commercial benefits to a hirer if they engage contractors through an agency and the contractors DO NOT opt out of the agency regulations. The regulations also limit any "buy out" fee imposed on the hirer. Of course the agencies will try to bulltulip the hirer to such an extent that they get the Agency Conduct regs confused with the Agency Workers Regulations and convince them that they only want opted out contractors.


And stop with this crap about "why don't you just negotiate the clauses away". As you point out elsewhere, the agencies are a "£27bn a year business" so most freelancers are in a pretty weak position when it comes to dictating terms to them. Hell, we have a hard enough job getting them to honour their obligations under the law...

The funniest thing about the PCG advice is that they say if you opt out, you can use that to negotiate a better contract

Given that not opting out relieves you of needing to negotiate the no timesheet/no pay and handcuff clauses, you are already in a better position to negotiate anyway. They make it seem like if you opt in, you cannot negotiate. I ALWAYS do if there is a need and invariably, there is

[speling bee]

And stop with this crap about "why don't you just negotiate the clauses away". As you point out elsewhere, the agencies are a "£27bn a year business" so most freelancers are in a pretty weak position when it comes to dictating terms to them. Hell, we have a hard enough job getting them to honour their obligations under the law...

The great thing is that you don't have to negotiate those clauses away because the starting position. is 'opted in'. If you opt out, then you can try, but why bother and why would the agencies agree? They've already got you to opt out, and risk transfer is a key aim for them in this.

[Wanderer]

You may limit a handcuff period to 8 weeks (whoo hoo - I can see the client loving that option if they want to take you on) but the client will almost certainly be looking at a big bill from the agency.

No, they won't be looking at a big bill from the agency. You keep repeating this nonsense in the hope that people will start believing it and we grow tired of correcting you.

Go and read the legislation again, pay particular attention to section 10 which is Restriction on charges to hirers.

The limits on the handcuff clause apply to the Agency in it's dealings with both the worker AND the hirer so there are definite commercial benefits to a hirer if they engage contractors through an agency and the contractors DO NOT opt out of the agency regulations. The regulations also limit any "buy out" fee imposed on the hirer. Of course the agencies will try to bulltulip the hirer to such an extent that they get the Agency Conduct regs confused with the Agency Workers Regulations and convince them that they only want opted out contractors.


And stop with this crap about "why don't you just negotiate the clauses away". As you point out elsewhere, the agencies are a "£27bn a year business" so most freelancers are in a pretty weak position when it comes to dictating terms to them. Hell, we have a hard enough job getting them to honour their obligations under the law...

[speling bee]

If your contract say you get paid in n days, then n+1 days is a late payment and the usual remedies apply. Doesn't matter if your opted out or not, it's all about the contract you both agreed to follow.

The Opt Out means the agency doesn't have to pay you if they haven't been paid by their client, assuming there is nothing in the contract to override that (and usually there isn't, but there's no reason not to try and get it put in). The Regs provide that single level of additional protection.

However, even within the Regs, if there is no proof of work done you won't get paid anyway. whether or not the client has paid the agency. Equally if the agency hasn't got the money to pay you on the agreed terms then you have rather more things to worry about.

And it makes zero difference to non-payment at end of contract; usually that's because you've gone early and the client - rightly or wrongly - is covering their costs for replacing the gap you created.

If you're relying on the Regs for security, it's probably a good idea to go and read them or the PCG's detailed guide to them properly.

And that is the single level of protection that I want. I can go to court if needs be and have my day in front of the judge, and I need to prove on the balance of probabilities that I worked n professional working days. A much better situation than the agency knowing that they don't have to pay me and there is nothing I can do about it.

[tractor]

...

If your contract say you get paid in n days, then n+1 days is a late payment and the usual remedies apply. Doesn't matter if your opted out or not, it's all about the contract you both agreed to follow.

The Opt Out means the agency doesn't have to pay you if they haven't been paid by their client, assuming there is nothing in the contract to override that (and usually there isn't, but there's no reason not to try and get it put in). The Regs provide that single level of additional protection.

However, even within the Regs, if there is no proof of work done you won't get paid anyway. whether or not the client has paid the agency. Equally if the agency hasn't got the money to pay you on the agreed terms then you have rather more things to worry about. This is true whether you are opted in or out ergo it is irrelevant.

And it makes zero difference to non-payment at end of contract; usually that's because you've gone early and the client - rightly or wrongly - is covering their costs for replacing the gap you created. This is prohibited by the regs as well - see below.

If you're relying on the Regs for security, it's probably a good idea to go and read them or the PCG's detailed guide to them properly.

You qualify that statement with so many conditions it's nonsensical.

Prohibition on employment businesses withholding payment to work-seekers on certain grounds

12. An employment business shall not, in respect of a work-seeker whom it supplies to a hirer, withhold or threaten to withhold from the work-seeker (whether by means of the inclusion of a term in a contract with the work-seeker or otherwise) the whole or any part of any payment in respect of any work done by the work-seeker on any of the following grounds—

(a)non-receipt of payment from the hirer in respect of the supply of any service provided by the employment business to the hirer; .
(b)the work-seeker’s failure to produce documentary evidence authenticated by the hirer of the fact that the work-seeker has worked during a particular period of time, provided that this provision shall not prevent the employment business from satisfying itself by other means that the work-seeker worked for the particular period in question; .
(c)the work-seeker not having worked during any period other than that to which the payment relates; or .
(d)any matter within the control of the employment business.

Seems pretty clear to me and it wouldn't be so hard to prove attendance if that was what was required.

PCG advice is just that - advice, it's up to you whether you take it or not. I won't post the PCG advice because it is probably copyright protected but any member can go look for themselves.

Remind me again of the benefits of opting out? Because I have been looking at this for a couple of weeks now and I have yet to justify it.

[speling bee]

You are correct, that is why agents move heaven and earth to get you to opt out. You probably won't even need to sue just take the late payment route or fire it off to a debt collector.

There is a similar issue with brollies as well.

[malvolio]

You are correct, that is why agents move heaven and earth to get you to opt out. You probably won't even need to sue just take the late payment route or fire it off to a debt collector.

If your contract say you get paid in n days, then n+1 days is a late payment and the usual remedies apply. Doesn't matter if your opted out or not, it's all about the contract you both agreed to follow.

The Opt Out means the agency doesn't have to pay you if they haven't been paid by their client, assuming there is nothing in the contract to override that (and usually there isn't, but there's no reason not to try and get it put in). The Regs provide that single level of additional protection.

However, even within the Regs, if there is no proof of work done you won't get paid anyway. whether or not the client has paid the agency. Equally if the agency hasn't got the money to pay you on the agreed terms then you have rather more things to worry about.

And it makes zero difference to non-payment at end of contract; usually that's because you've gone early and the client - rightly or wrongly - is covering their costs for replacing the gap you created.

If you're relying on the Regs for security, it's probably a good idea to go and read them or the PCG's detailed guide to them properly.