Reply to: EB Regs - Agency wants me to opt out - Why ?

[Wanderer]

I couldn't care less whether people are "in or out"....as you rightly point out, I have contracts elsewhere which deal with this.

If the worker does not opt out then the provisions of the Agency Regulations take precedence over any contract between the agency and the client so certain parts of the contract between you and the client (temp to perm fee and restrictive covenants) are limited by the regulations. Agents may THINK they have restrictions in their agent to client contract but certain ones are unenforceable.

I guess most clients aren't properly aware of this quite yet but they'll wake up to it sooner or later and of course Agencies would rather keep this one quiet because there is potentially a lot of money at stake (ie, Temp to Perm fees).

[SueEllen]

I couldn't care less whether people are "in or out"....as you rightly point out, I have contracts elsewhere which deal with this. However, the fact remains that a business to business relationship should rely on the contract between two parties, within the boundaries of the law. Opt in, is really designed for the temping industry - in the same way as the new AWR regulations are, unless you're vastly underpaid for a contract role - which I suspect is unlikely.

Then if the opt-in/opt-out is protected in the higher contract i.e. between you and the client you may as well save your energy in forcing the contractor to opt-out like other REC affliated agencies.

[SueEllen]

Is it something you've done before, and how did it go? Did you in the end managed to get the contract and opt in before starting work? Please share your experience, because I'll gladly consider the same tactic next time an agent forces me to opt out before sending my CV to the client

The problem with sending a letter is dued to Royal Mail it may arrive after you get on site. So to make sure it arrives before you get on site you should send an email with a copy of the letter attached about 30 minutes before you arrive on site.

Obviously the agency can try and argue in court that it doesn't accept the email but if you have other correspondence by email then it will highly likely fail.

[Wanderer]

Actually - that's EXACTLY what it says.... "prior to introduction or supply". Which means, some time, before you start working on site. It's that badly defined. Introduction, is the supply of the CV. Supply is the day you start work. They key word is "OR" - meaning you can use EITHER.

Ahh, so you do know the law then. What I was pointing out is that "prior to introduction or supply" is NOT the same as "at any time in the process, pre-payment" as you (and the REC) claim. I'm pleased that you now accept this point.

errr....we'll just take the role away? It's not a battle that is going to do either party any good!

I'm talking about opting out after the contract has been signed and immediately before I start work. If the agency try to "take the role away" then this be treated as a breach of contract and will either end up with a settlement in my favour or a court case. I will also make sure that the client understand that the agency are trying to deny me my statutory rights and that every agent in town finds out the contact details of the client who is recruiting. Like I said, two can play these games and agencies I deal with find that it's best to just shut up and accept that I'm not doing the contract on an opted out basis.

As for shiny suits - You should try a t-towel over your suit when ironing it - it stops those horrible shiny marks.

Top tip! I shall pass this onto my domestic staff.

You will find that MOST businesses run as close to the law as they can, in order to maximise profitability. Take Richard Branson as an example - the guy was convicted of fraudulent accounting, copyright infringement and all sorts - yet he is still one of the most significant businessmen of our time.....

Absolutely agree with you here, but that doesn't mean I can't assert my legal rights and fight back against sharp practice when I can. I refuse to be bullied out of my statutory rights on a point of principle. If that means starting a tulip fight then I'll do it. I have found that although they make a lot of noise, ultimately it gets escalated to the director level and the agency back down. I guess their business model is that if they can get away with it 90% of the time then it's OK. The other 10% they accept that they aren't going to be able to get away with it. Well I'm one of the 10%.

It's nothing personal, it's just business.

[The Agents View]

Ah yes, typical agency tactics. Bluff and bluster are the order of the day.

Well sir, you can't bulltulip me and I can tell you that the first agency that tries to start one with me over the agency regs is going to end up settling in my favour or fighting it out in court. Strangely enough, every time I stand up to them, they back down. Funny isn't it. Maybe that's why there are no test cases? Because agencies would prefer to bulltulip their way through it and give up when anyone stands up to them?

Good - so that's answered the question....oh wait - no... There is no guidance for this - at all - and frankly, your lawyers will tell you it's not worth bothering about. From our perspective, there are hundreds of people on the market at the moment - if you get shirty about it, we'll just remove the objection (ie you) from the process.

That's for a court to interpret. I can tell you what, the law clearly doesn't say is that "presence of the opt out form at any time in the process, pre-payment, is submissable as agreement to opt-in or out" as you suggest - you don't need to be a lawyer to understand that. Of course, you guys will conveniently ignore all that and just hear what you want to hear so you can continue to use your bluffing an bullying tactics. Like I said, we're smarter than that so it doesn't work on us.

Actually - that's EXACTLY what it says.... "prior to introduction or supply". Which means, some time, before you start working on site. It's that badly defined. Introduction, is the supply of the CV. Supply is the day you start work. They key word is "OR" - meaning you can use EITHER.

What, you mean they have signed the opt-out form or that they have actually properly opted out? It must be the former, unless you don't have ANY contractors who work though an umbrella.

I don't currently have anyone who runs through an umbrella.

And as previously stated, they signed the opt out before commencing work, or BEFORE I SUPPLIED THEM - which according to the regulations, is submissable as evidence.

But of course we know that's just agent speak. Blokes in shiny arsed suits telling us that no one has ever complained about 6 week payment terms and nonsense like that. If an agent ever insists on an opt out up front before representing me then I'll sign it and if I get the contract then I'll withdraw it before I start work as I'm perfectly within my rights to do. Oh yeah, two can play that game.

errr....we'll just take the role away? It's not a battle that is going to do either party any good!

As for shiny suits - You should try a t-towel over your suit when ironing it - it stops those horrible shiny marks.

Mal, they understand the law perfectly well but if they admitted that then they would have to abide by it. They prefer to plead ignorance of the law and bully their way through their business dealings.

Which actually shows your complete lack of business knowledge.
You will find that MOST businesses run as close to the law as they can, in order to maximise profitability. Take Richard Branson as an example - the guy was convicted of fraudulent accounting, copyright infringement and all sorts - yet he is still one of the most significant businessmen of our time.....

[The Agents View]

We know your definition from your REC lawyers.

You probably know our definition from the PCG.

In which case we're at stalemate. there's no test case, there's nothing to go on at all - until someone takes this up, there will be no change either.

That's probably because you lied to them like some of* the REC affiliated agencies and claimed it's linked to IR35 when there is no link, and provided them with a nasty contract if they didn't opt-out.

Thank you for insight to this. Please tell me, what are the Lottery numbers going to be this week?

*Please note I didn't say "all" as there are those in REC who know they have proper contracts with the end-client they can enforce so don't give a damn whether the contractor is opted-in or out. In addition they ensure all contract clauses are written by a solicitor instead of being made up by a director of the agency who thinks a term can be legally enforced because it's in writing.

I couldn't care less whether people are "in or out"....as you rightly point out, I have contracts elsewhere which deal with this. However, the fact remains that a business to business relationship should rely on the contract between two parties, within the boundaries of the law. Opt in, is really designed for the temping industry - in the same way as the new AWR regulations are, unless you're vastly underpaid for a contract role - which I suspect is unlikely.

[calder]

But of course we know that's just agent speak. Blokes in shiny arsed suits telling us that no one has ever complained about 6 week payment terms and nonsense like that. If an agent ever insists on an opt out up front before representing me then I'll sign it and if I get the contract then I'll withdraw it before I start work as I'm perfectly within my rights to do. Oh yeah, two can play that game.

Is it something you've done before, and how did it go? Did you in the end managed to get the contract and opt in before starting work? Please share your experience, because I'll gladly consider the same tactic next time an agent forces me to opt out before sending my CV to the client

[psychocandy]

But of course we know that's just agent speak. Blokes in shiny arsed suits telling us that no one has ever complained about 6 week payment terms and nonsense like that. If an agent ever insists on an opt out up front before representing me then I'll sign it and if I get the contract then I'll withdraw it before I start work as I'm perfectly within my rights to do. Oh yeah, two can play that game.

.

That'd be funny. Agree to opt out sign the contract then the day before you start send letter to agency recorded delivery telling them you're withdrawing the opt out......

[Wanderer]

Got anything you can quote as a test case for your side? Oh no - course not... <sigh> Do think about these things before spouting tulip.

Ah yes, typical agency tactics. Bluff and bluster are the order of the day.

Well sir, you can't bulltulip me and I can tell you that the first agency that tries to start one with me over the agency regs is going to end up settling in my favour or fighting it out in court. Strangely enough, every time I stand up to them, they back down. Funny isn't it. Maybe that's why there are no test cases? Because agencies would prefer to bulltulip their way through it and give up when anyone stands up to them?

Before the introduction or supply. Please define. is it introduction? or supply? or whichever one suits you best at the time?

That's for a court to interpret. I can tell you what, the law clearly doesn't say is that "presence of the opt out form at any time in the process, pre-payment, is submissable as agreement to opt-in or out" as you suggest - you don't need to be a lawyer to understand that. Of course, you guys will conveniently ignore all that and just hear what you want to hear so you can continue to use your bluffing an bullying tactics. Like I said, we're smarter than that so it doesn't work on us.

Yet every contractor who works through me, is Opted out, of their own accord.

What, you mean they have signed the opt-out form or that they have actually properly opted out? It must be the former, unless you don't have ANY contractors who work though an umbrella.

But of course we know that's just agent speak. Blokes in shiny arsed suits telling us that no one has ever complained about 6 week payment terms and nonsense like that. If an agent ever insists on an opt out up front before representing me then I'll sign it and if I get the contract then I'll withdraw it before I start work as I'm perfectly within my rights to do. Oh yeah, two can play that game.

For the last time, "Introduction" is perfectly clearly understood; it means when the client knows who you are. In our case that will be shortly before interview when a personalised CV is submitted for consideration ("Mr Client, may I introduce Joe Contractor"). For the young lady from Office Angels, or Bert the hop-picker, it's when they turn up on the Monday morning (Hi, I'm Sally, I'm from the agency...?"), since they have not been sold as a skilled person, merely as a generic resource so the client doesn't care who turns up.

But clearly this is way too hard - or more likely too inconvenient - for the average agency to understand.

Mal, they understand the law perfectly well but if they admitted that then they would have to abide by it. They prefer to plead ignorance of the law and bully their way through their business dealings.

[malvolio]

Unless it's a total CU and used to obfusticate and confuse....

No. It's because the deal the agency has with the client and the contractual terms they have offered are incompatible with an opted in contract to the worker. Don't forget, they agency sells us as being their dedicated resource; makes it kind of tricky to allow a six week maximum handcuff clause, doesn't it...

[TraceRacing]

The thing I don't fully understand is that surely by default you are opted-in? You cannot be opted-out of something by default. So surely the responsibility is incumbent upon the agency to confirm the state prior to "introduction or supply"?

Conceptually it's like the TV Licence, the authorities opt every home in (in other words the default position is that every home has a TV therefore requires a licence) and it's your responsibility to advise/inform if this is not the case.

Unless it's a total CU and used to obfusticate and confuse....

[SueEllen]

But clearly this is way too hard - or more likely too inconvenient - for the average agency to understand.

It's both.

If you have been stuck in an office with sales type people you know that some of them have a difficulty understanding concepts that are common sense and logical to the majority of other people.

[malvolio]

Grrr...

For the last time, "Introduction" is perfectly clearly understood; it means when the client knows who you are. In our case that will be shortly before interview when a personalised CV is submitted for consideration ("Mr Client, may I introduce Joe Contractor"). For the young lady from Office Angels, or Bert the hop-picker, it's when they turn up on the Monday morning (Hi, I'm Sally, I'm from the agency...?"), since they have not been sold as a skilled person, merely as a generic resource so the client doesn't care who turns up.

But clearly this is way too hard - or more likely too inconvenient - for the average agency to understand.

[rd409]

Yet every contractor who works through me, is Opted out, of their own accord. How odd that there's a revolution, that nobody else has heard of?

Do you represent one of the agencies, which forces the contractors to accept the contract, opt-out forms digitally, before they can submit their time sheets?
I have had experience in past, where agents tried to force me into accepting the opt-out. I always made a point in sending an email to them stating clearly that I do not want to opt out, but am being forced to do that. Also signing the opt-out after the start date of the contract. Introduction can be ambiguous as to whether it occurred during the submission of CV, or interview or start date; but supply is clearly the start date and not the payment date of first invoice.
So am quite happy in the knowledge that the opt outs that I have had to accept so far, are all invalid. One of the agents himself advised me to do that, as he knew it is illegal, but was a standard practice at the agency.

[calder]

Yet every contractor who works through me, is Opted out, of their own accord. How odd that there's a revolution, that nobody else has heard of?

Probably because you make it clear to them that if they don't opt out (of their own accord, of course), you wouldn't send their CV to the client. I like your definition of "of their OWN accord"...