Am I automatically opted in?

[scooterscot]

Thanks Tino...

[tino]

I'm using the PCG contract with the agent. What the agents arrangements with the client are I've not idea.

The agent is signing my contract not me theirs.

Scooter, see below - I posted it on your other thread also

Regulation 32 – Application of these regulations to work-seekers which are incorporated
The regulations automatically apply to work-seekers who are incorporated (i.e. limited company contractors). The regulations also apply to any person who is, or would be supplied by the incorporated work-seeker, to carry out the work.

However, the regulations provide that incorporated work-seekers, and those persons whose services they supply, can agree to opt out of the coverage of the regulations. In order to exercise the opt-out, both the incorporated work-seeker and the person(s) to be supplied to do the work (where appropriate), must give written notice to the agency or employment business that the regulations will not apply before they are introduced or supplied to the hirer.

Regulation 9 of the 2007 Regulations amends regulation 32(9) so that, where an incorporated work-seeker gives notice that the regulations shall not apply, the agency or employment business proposing to introduce or supply that work-seeker to a hirer, must inform that hirer that such an agreement exists and the regulations do not apply.

http://www.berr.gov.uk/whatwedo/empl...page49906.html

[scooterscot]

Agency can shout as much as it likes, it's purely your decision (and YourCo's of course). Expect to get a different contract of course; some clauses are not compatible with being opted in. They may also, of course, be incompatible with the contract the agency has with the client, but that's not really your problem...

I'm using the PCG contract with the agent. What the agents arrangements with the client are I've not idea.

The agent is signing my contract not me theirs.

[malvolio]

Agency can shout as much as it likes, it's purely your decision (and YourCo's of course). Expect to get a different contract of course; some clauses are not compatible with being opted in. They may also, of course, be incompatible with the contract the agency has with the client, but that's not really your problem...

[scooterscot]

Yes. There's a detailed guide to the Agency regs, but it's members only I'm afraid. Of course you, being a sensible and intelligent person, are a member, arent you... in which case it's under "Resources" then "Expert Guides".

Yes I'm a member - And how would you know?!

Just out of interest there are now two schools of thought about this in the PCG, one saying you should opt in becuase of the small commercial benefits, one that you should opt out becuase you're in business. Don't ask me which is right!

I've actually opted in since I met the client and signed nothing even though the agent requested I sign the day before. The agent is throwing a fit now that I'm refusing to sign and I've got a very keen client who wants me to work for them.



EDIT: I do not really need to opt out for IR35 sake, as the pcg Q&A would suggest, as I have other contracts on the go, which probably bring in more cash than this one.

EDIT EDIT: The agency is reviewing my contract for consideration, they were prepared to have me working without a contract -

[malvolio]

Is there somewhere on the PCG site this is spelt out?

Yes. There's a detailed guide to the Agency regs, but it's members only I'm afraid. Of course you, being a sensible and intelligent person, are a member, arent you... in which case it's under "Resources" then "Expert Guides".

Just out of interest there are now two schools of thought about this in the PCG, one saying you should opt in becuase of the small commercial benefits, one that you should opt out becuase you're in business. Don't ask me which is right!

[scooterscot]

As I said, the cut off is when the client knows who you are. The logic is that you have to go through a selection process, as opposed to an agency temp (the Office Angels kind of person) who simply turns up on the Monday morning sight unseen, so you are introduced much earlier in the process.

Since every agency in the world gets this wrong, it's far simpler to sign their opt out since it is completely worthless. However, there may then be fun and games if you try to exercise some of the Opted In options that won't be in their Opted Out contract...

Is there somewhere on the PCG site this is spelt out?

[Not So Wise]

Pretty much from the minute client see's,talks communicates to contractor they are opted in unless already opted out

Only viable stage for agency to get you to opt out is before they send your CV to the client.

Interestingly though, by not getting you to opt out at the correct time (before introduction) agencies are pretty much in violation of the all the requirements imposed on them by the act (eligibility to work, references, verifying work history/certification so forth).

If agencies did things correctly they could say they were legally required to obtain references from contractors before interview and be telling the truth

Used to get very uptight about whole thing, refusing to sign opt out's (given at incorrect time) but these days just sign them because figured out that the two main protections that being opted in, getting paid regardless and ability to work for client direct were pretty immaterial.

If you are not getting paid, opt in/out status is going to be smallest weapon in your arsenal in the courts, contract law will be what you will be using

As to wanting to to work direct for client, well guess what, while opt in status might say you can work direct for client in about 8 weeks after contract ends, the client/agency contract says about 6 months before client can actually hire you, so your rights are immaterial if clients hand are still tied

Whole agency regs are just another pointless/stupid/ badly thought out regulation like IR35

[Gonzo]

I know that if I had had a face to face interview - ie. I had met the client then I would be automatically opted in, regardless. Is it the same for telephone interviews?

Yes. You have been introduced to the client at this point.

[TykeMerc]

Since every agency in the world gets this wrong, it's far simpler to sign their opt out since it is completely worthless. However, there may then be fun and games if you try to exercise some of the Opted In options that won't be in their Opted Out contract...

That's the approach I've taken, I submitted the pointless paperwork having made sure that they knew and had acknowledged in writing that it was pointless.

[malvolio]

As I said, the cut off is when the client knows who you are. The logic is that you have to go through a selection process, as opposed to an agency temp (the Office Angels kind of person) who simply turns up on the Monday morning sight unseen, so you are introduced much earlier in the process.

Since every agency in the world gets this wrong, it's far simpler to sign their opt out since it is completely worthless. However, there may then be fun and games if you try to exercise some of the Opted In options that won't be in their Opted Out contract...

[TykeMerc]

I had a protracted discussion on this subject with the agent for my current contract.

Agent, his "legal" and commercial teams reckoned I could opt out despite having met the client and insisted that I send opt out paperwork. I have a clear email trail that I'm opted IN and that's the end of that.

I know that an agent can't insist that we opt out, but as we all know they do make life bloody tricky when this question arises and they get the "wrong" answer.

[malvolio]

Yes. The cut-off point is when the client knows who you are.

[b0redom]

What does the panel believe?

My CV was submitted to ClientCo. I was given a telephone interview and immediately offered the job. I have subsequently been asked to opt out.

I know that if I had had a face to face interview - ie. I had met the client then I would be automatically opted in, regardless. Is it the same for telephone interviews?