Reply to: Opt out - Agreement

[perplexed]

I generally tend to opt out. Never really had any payment issues apart from when an agency went into liquidation.

[malvolio]

Huh? Where did that come from?

Oops...

I mean, of course, the

Agency Regulations

(The Conduct of Employment Agencies and Employment Business Regulations 2003)

[northernladuk]

Not quite. Remember what the AWR is actually there to do: .

Huh? Where did that come from?

[northernladuk]

I wish the law wasn't so wooly worded and difficult to understand (I can barely follow the wording), so we end up with one law and numerous interpretations.

Damn straight. Even on as simple as whether then can force you to Opt out. You'd think that wouldn't be hard to clarify.

If we struggle then christ knows how the agents manage. Try asking an agent the difference between introduction and supply. They'll just pick the meaning that suits them everytime.

[BlasterBates]

I do like to be in a position where if things get disputed, I can tell the agent that they are breaking the law if they refuse to pay. It's got a bit more punch to it than a civil matter and may tip their hand. In other words, if they're deciding who to pay and not pay for cashflow reasons or whatever, do you think the guy opted out is perhaps more likely to not get paid? I do.

It's still a civil matter, a very complicated one at that because even if you haven't opted out you aren't necessarily opted in unless you have a specific clause in your contract.

i.e. it would need to be explicit. That is because contractors are implicitly opted out. To be able to use this clause your contract should reflect that you are opted in with clear statements about your relationship to the client.

Having read about disputes on this forum extensively I've never heard of anyone invoking this law to get paid.

Sure theoretically it might work, but it isn't worth turning a contract down to sit on the bench for two months. I think the opt in gives a contractor nothing more than a false sense of security.

[man]

The onus is on you to prove it's unlawful. I don't need to provide anyhing to prove there is no law against it.

But I will...

https://www.contractoruk.com/forums/...ml#post1524460

So if B&C are tell you it's unlawful then at this point it's highly questionable.

I don't think I ever said B&C said it's unlawful, that wasn't the aspect of the conduct regs that I asked them about.

However, to refute that civil servant's opinion, I quote a ContractorUK article, text from David Buckle, head of employment practice at Cubism Law:
"However, agencies should not try to influence whether or not the contractor opts out and cannot make this a requirement (see Regulation 32(13)) , no matter how strongly they claim to the contrary!"
Opt in, opt out? What the employment agency regulations are all about

Here is the link to the legislation mentioned in the above article (Regulation 32):
The Conduct of Employment Agencies and Employment Businesses Regulations 2003

I wish the law wasn't so wooly worded and difficult to understand (I can barely follow the wording), so we end up with one law and numerous interpretations.

[northernladuk]

I think the comment about the advice I've received being questionable is quite unfair unless you can quote some legislature to the contrary, as I suggest neither of us have the legal training or detailed knowledge to argue with a trained advisor. Especially at an organisation who's given me nothing but stellar service for a fair price (No vested interests to declare, I'm just a satisfied customer).

The onus is on you to prove it's unlawful. I don't need to provide anyhing to prove there is no law against it.

But I will...

https://www.contractoruk.com/forums/...ml#post1524460

So if B&C are tell you it's unlawful then at this point it's highly questionable.

[man]

But you should as he is gonna think you are talk rubbish and attempt to pull your pants down. It's the same as when anyone threatens to sue him. No one ever does so he knows you are just talking rubbish. If you explain where and who you got it from then sure, he is likely to sit up and take notice but just dropping 'my legal adviser' in is likely to have the reverse effect.

Particularly when the legal advisers advice is highly questionable.

OK I see where you're coming from now. Generally speaking I don't have issues with agents trying to pull my pants down once we're out of the first couple of minutes of the first ever call and certainly not at the later point of discussing opt out (because they usually wait until after successful interview to discuss, proving they don't have a clue how it works). But yes, perhaps others might be better not to do it that way as I can see it coming across like a load of bull if phrased poorly.

I think the comment about the advice I've received being questionable is quite unfair unless you can quote some legislature to the contrary, as I suggest neither of us have the legal training or detailed knowledge to argue with a trained advisor. Especially at an organisation who's given me nothing but stellar service for a fair price (No vested interests to declare, I'm just a satisfied customer).

One of our posters contacted BiS directly about whether or not an agent can force an Opt in. I can't remember the exact post but the upshot was that an agent can decide who it wants to do business with. If it only wants to take Opt Out contractors it can do so. It's a business choice.

I remember the thread. I also remember another thread (its name currently escapes me) that linked to a government operated website that provided an email address to report non-compliance of these regulations to, but I remember the feedback on the thread being that the receipients of that mail box didn't actually do anything to help or enforce, so pointless. Looking at it pragmatically, I agree. There's one decent size agent that comes to mind that won't work with you unless you opt out, and in my experience they make it clear every time they call or email you about a new opportunity.

I'm not saying don't do it. You've made a business decision and stuck to it. Fair dinkum. I'm absolutely certain you are pinning more on it than it will actually deliver though. Just pointing that out.

Fair enough.

[malvolio]

It was IPSE that got that somewhat unhelpful answer from BIS a few years back. I reported it on here.

But note my previous comment about paying workers... Not being paid by a specific client does not totally absolve you from paying your workers, if your cashflow allows you to do so.

[northernladuk]

Have you ever wondered why I'm with B&C despite them costing maybe double what I can get IR35 cover for elsewhere? They actually provide a bit of legal advice for no additional charge. I'm sure at any point if I take the biscuit they may decide to refuse to provide additional advice but so far I've managed to get a fair amount of good quality of advice from them on a range of issues including contract termination and these very regulations we're discussing here. I couldn't give a monkeys what the typical agent thinks, I only care that I get the result I want and they stop trying to browbeat me into signing what their boss told them to push.

But you should as he is gonna think you are talk rubbish and attempt to pull your pants down. It's the same as when anyone threatens to sue him. No one ever does so he knows you are just talking rubbish. If you explain where and who you got it from then sure, he is likely to sit up and take notice but just dropping 'my legal adviser' in is likely to have the reverse effect.

Particularly when the legal advisers advice is highly questionable.

The Conduct of Employment Agencies and Employment Businesses Regulations 2003
PART II, Regulation 12:
The Conduct of Employment Agencies and Employment Businesses Regulations 2003
I'm not going to quote the entire section because otherwise this post will end up being the length of an essay, but if you click the link it's right there in black and white (at least the relevant bit of the law in relation to withholding payment). And just to reiterate, this is the actual wording of the law. I'm not legally trained but it seems clear to me.

That's interesting. I didn't know they had to still pay up if the client didn't. No wonder agents don't want Opt In contractors....but it doesn't answer the point you are quoting.

One of our posters contacted BiS directly about whether or not an agent can force an Opt in. I can't remember the exact post but the upshot was that an agent can decide who it wants to do business with. If it only wants to take Opt Out contractors it can do so. It's a business choice.

I think that's a fair point, well made - but that said I do like to be in a position where if things get disputed, I can tell the agent that they are breaking the law if they refuse to pay. It's got a bit more punch to it than a civil matter and may tip their hand. In other words, if they're deciding who to pay and not pay for cashflow reasons or whatever, do you think the guy opted out is perhaps more likely to not get paid? I do.

I don't and I have never seen an agent fold because of the legislation. It's usually either sorted by negotiation/dunning or the matter just dies as it's generally not worth the effort to go to court over a single payment period, particularly if it's a week. It's law but it doesn't mean you'll still get paid.
And the situation about paying who first if there is problems is getting so unrealistic it's hardly worth caring about.

That and not getting a timesheet signed is a real possibility (for a load of reasons unrelated to performance, not just if you're rubbish), the conduct regs cover that off too.

It does but again, makes little difference.

Again, not legally trained but my unqualified understanding is that legislation trumps contracts, every time. Totally agree with your points that nothing is a certainty you'll paid, but the conduct regs do insist you get paid irrespective of timesheet.

Yep you are right there now you've pointed out the clause about paying even if the hirer hasn't. That's clarified something new for me so v interesting.

I'm not saying don't do it. You've made a business decision and stuck to it. Fair dinkum. I'm absolutely certain you are pinning more on it than it will actually deliver though. Just pointing that out.

[malvolio]

Indeed. Also in that contract it can often have a caveat that says you won't get paid if the client doesn't pay the agent.

Now I keep meaning to ask this but I imagine the OP thinks the Opt In gives him absolutely certainty he'll get paid but it doesn't. It says just without a time sheet. If I understand it right, if the client doesn't pay the agent, the agent is not obliged to pay the contractor regardless of being Opted in?

Not quite. Remember what the AWR is actually there to do: among other things, ensure a company supplying workers pays its workers on time wherever possible, even if it has not itself been paid for the work done (in other words, don't pay divis or buy another yacht until your workers are covered). So if you have the money somewhere, pay your workers first. (Of course, Joe Agent and his dog with his phone and his previous employers contact list won't have those reserves under his bed, so will lep at the chance to avoid paying before he is paid)

Also, the opt out is highly necessary to protect those small businesses who use a few subbies on a regular basis: the provisions are commercially risky for micro-businesses.

It was never meant for agencies to divest themselves of commercial risks when dealing with individual contractors, nor to step around other protective clauses in reasonable contracts. Blame the DTI - there were asked and given reasons why, but were unable to understand why one man bands should be out of scope.

[man]

You really think an agent believes you have a legal advisor?

Have you ever wondered why I'm with B&C despite them costing maybe double what I can get IR35 cover for elsewhere? They actually provide a bit of legal advice for no additional charge. I'm sure at any point if I take the biscuit they may decide to refuse to provide additional advice but so far I've managed to get a fair amount of good quality of advice from them on a range of issues including contract termination and these very regulations we're discussing here. I couldn't give a monkeys what the typical agent thinks, I only care that I get the result I want and they stop trying to browbeat me into signing what their boss told them to push.

What makes you think it is illegal. Please link what law it breaks.

The Conduct of Employment Agencies and Employment Businesses Regulations 2003
PART II, Regulation 12:
The Conduct of Employment Agencies and Employment Businesses Regulations 2003
I'm not going to quote the entire section because otherwise this post will end up being the length of an essay, but if you click the link it's right there in black and white (at least the relevant bit of the law in relation to withholding payment). And just to reiterate, this is the actual wording of the law. I'm not legally trained but it seems clear to me.

Not once in all the time of being on this forum have I seen the opt in situation make one iota of difference to a payment dispute. Makes absolutely no different to late payments as well so it is only exactly as you say an (unfounded) opinion.

I think that's a fair point, well made - but that said I do like to be in a position where if things get disputed, I can tell the agent that they are breaking the law if they refuse to pay. It's got a bit more punch to it than a civil matter and may tip their hand. In other words, if they're deciding who to pay and not pay for cashflow reasons or whatever, do you think the guy opted out is perhaps more likely to not get paid? I do.

That and not getting a timesheet signed is a real possibility (for a load of reasons unrelated to performance, not just if you're rubbish), the conduct regs cover that off too.

Also in that contract it can often have a caveat that says you won't get paid if the client doesn't pay the agent.

Now I keep meaning to ask this but I imagine the OP thinks the Opt In gives him absolutely certainty he'll get paid but it doesn't. It says just without a time sheet. If I understand it right, if the client doesn't pay the agent, the agent is not obliged to pay the contractor regardless of being Opted in?

Again, not legally trained but my unqualified understanding is that legislation trumps contracts, every time. Totally agree with your points that nothing makes it certain you'll get paid, but the conduct regs mean that you are supposed to be paid irrespective of timesheet.

[northernladuk]

You don't have to be opted in to have the right to be paid for work carried out, a very standard contract has sufficient protection.

Indeed. Also in that contract it can often have a caveat that says you won't get paid if the client doesn't pay the agent.

Now I keep meaning to ask this but I imagine the OP thinks the Opt In gives him absolutely certainty he'll get paid but it doesn't. It says just without a time sheet. If I understand it right, if the client doesn't pay the agent, the agent is not obliged to pay the contractor regardless of being Opted in?

[BlasterBates]

The same people who will be advising you not to sign the contract that includes an opt out will be advising you are powerless when the client cancels you without any notice or the agency won't pay without a signed time sheet.

The opt-out is completely pointless for a contractor. Contractors were perfectly content before 2003.

No harm in asking not to opt out but is rather unimportant. If you want to be paid without a time sheet get it in your contract.

You don't have to be opted in to have the right to be paid for work carried out, a very standard contract has sufficient protection.

[northernladuk]

For what it's worth, I don't opt out (and have so far managed to avoid the few agencies who technically illegally* force an opt out) most just push it, some quite hard. Holding your ground and pointing out that your own legal advisor has advised you not to opt out, seems to work with most agents.

You really think an agent believes you have a legal advisor?

In my opinion, the protection offered against restricted covenants (8 weeks maximum enforceable duration if I remember correctly, but only if not opted out) and non payment (you must still be paid irrespective of whether they get paid by the end client or not - not that in my experience it stops late payments) is totally worth it for just a bit of extra upfront hassle with the agent.

* Technically illegal because there is no enforcement, the government does have an email address you can report it to, but my understanding is that they don't do a thing about it.

What makes you think it is illegal. Please link what law it breaks.

Not once in all the time of being on this forum have I seen the opt in situation make one iota of difference to a payment dispute. Makes absolutely no different to late payments as well so it is only exactly as you say an (unfounded) opinion.

And the 8 weeks handcuff. That's still 2 months so far too long to be practical. Again, I am yet to see where an opt in/out status has made one iota of difference. Negotiation has sorted it everytime.

Its such a useless bit of legislation it's hardly worth bothering about, even if the agent understands it, which they don't.