Originally posted by malvolio
View Post
- Visitors can check out the Forum FAQ by clicking this link. You have to register before you can post: click the REGISTER link above to proceed. To start viewing messages, select the forum that you want to visit from the selection below. View our Forum Privacy Policy.
- Want to receive the latest contracting news and advice straight to your inbox? Sign up to the ContractorUK newsletter here. Every sign up will also be entered into a draw to WIN £100 Amazon vouchers!
Collapse
You are not logged in or you do not have permission to access this page. This could be due to one of several reasons:
- You are not logged in. If you are already registered, fill in the form below to log in, or follow the "Sign Up" link to register a new account.
- You may not have sufficient privileges to access this page. Are you trying to edit someone else's post, access administrative features or some other privileged system?
- If you are trying to post, the administrator may have disabled your account, or it may be awaiting activation.
Logging in...
Previously on ""We must opt you out of the Conduct of Employment Agencies Regs 2003..."
Collapse
-
-
Originally posted by Incognito View PostYou're not meant to bicker in the professional forums, but I'm afraid I have to point out you go from this:
To this:
In the space of a fortnight. After my post laying out that argument. So again, it's courteous to pay people the respect if you're going to use their argument as your own.
Alhough I hope that after several years arguing about the Regs and what they mean, I must have raised that point at least once before.
Leave a comment:
-
Originally posted by malvolio View PostHow about if it's my original? Do I credit myself? OR if yuo want a reference, how about the Operations Director of a £400m a year agency; is that authoritative enough?
And I do actually know who BIS are, thanks.
Originally posted by malvolio View PostThis could be intresting...
If you're opted out then no, the agency are not obliged to pay you if they haven't been paid themselves. However, if you're opted in, they are. Your invoice is not part of the client's debts so any money arguments are between agency and client. The point is that 99% of us are opted in, intentionally or not, so if this goes to the wire it would good to test things in court....
Originally posted by malvolio View PostLet's have a degree of realism, chaps, please....
Fourthly the definiton of "Introduction" is the problem. It may mean "when the client knows who you are" in the sense we understand it or it may mean "when the previously unidentified worker turns up on the Monday" as per the Office Angels model which the agencies prefer. Until it goes to court, we will never know and neither side can be rigid about it.
Leave a comment:
-
Originally posted by SueEllen View PostI made enquires as well and got the opposite answer to Cojak.
It seems it depends on who you deal with in that part of the BIS
Hello, I have discovered 2 companies stating in their websites that following discussions WITH YOU they will not work with contractors who insist on remaining within The Conduct of Employment Agencies and Employment Businesses Regulations 2003 (Regulation 32) ('Opting- In'). Is this true and is this legal? [Agency A & Agency B pdfs] Regards, cojak
Dear cojak
EMPLOYMENT AGENCIES ACT 1973
Thank you for your email about employment agencies indicating that they will only seek to find work
for contractors who have opted out of the Conduct of Employment Agencies or Employment Businesses Regulations 2003. Your email has been passed to me to respond to you and I apologise for the delay in responding to you.
I can inform you that the Employment Agency Standards (EAS) Inspectorate, based in the Department for Business, Innovation and Skills, is responsible for enforcing the provisions of the Employment Agencies Act 1973 and associated regulations. This legislation requires employment agencies and employment businesses to abide by specified minimum standards of conduct. Further details about the legislation can be obtained from our website,
Employment Agency Standards inspectorate | Policies | BIS
I can advise you that it is not illegal under the Employment Agencies Act 1973 or Conduct of Employment Agencies and Employment Businesses Regulations 2003 for an employment agency or employment business to insist that they will only seek work for work-seekers who will agree to opt out of the Conduct Regulations. This is a business decision that employment agencies or employment business might make without contravening the employment agency legislation.
I hope this has clarified the position.
Regards
XXXXXX
Head of Employment Agency Standards Department for Business, Innovation and Skills
Leave a comment:
-
Originally posted by malvolio View PostYour'e not listening. It's nothing to do with the contract or the letter of the Agency Regulations or any other element of corporate law. There is nothing to force a company to deal with another comapny if they can't agree the terms of trade. You don't want to sign a piece of paper saying you are opting out then fine, I'll find someone who will.
Originally posted by malvolio View PostAlso, consider this. The regualtions do little if anything for the genuine freelance contractor but mainly generate a lot of extra paperwork on both sides.
Originally posted by malvolio View PostMost of us were arguing that they shouldn't ever have applied to us but should have been focused on the casual labourers and agency temps they were meant to prootect.
Originally posted by malvolio View PostIf the agencies are universally operating as though everyone has opted out, isn't that precisely what we were trying to acheive?
Leave a comment:
-
Originally posted by BolshieBastard View PostI believe cojak made enquiries about this and even started a thread about it. And yes, (AFAICR), agencies can make it conditional when offering roles.
It seems it depends on who you deal with in that part of the BIS
Leave a comment:
-
Originally posted by Incognito View PostIt's normally good practice to reference your work when you use other peoples arguments.
However, as you have some sway with the PCG can you ask them to:
-... write to the BIS (Vince Cable's department replacing BERR/DTI) and ask them to clarify at what stage of the process does Regulation 32 refer to when referring to the term 'introduction' is it the interview or first day on the job.
And I only have sway because I'm a member and the listen to their members. So you know the next step, don't you...
Leave a comment:
-
Originally posted by malvolio View PostFourthly the definiton of "Introduction" is the problem. It may mean "when the client knows who you are" in the sense we understand it or it may mean "when the previously unidentified worker turns up on the Monday" as per the Office Angels model which the agencies prefer. Until it goes to court, we will never know and neither side can be rigid about it.
However, as you have some sway with the PCG can you ask them to:
-... write to the BIS (Vince Cable's department replacing BERR/DTI) and ask them to clarify at what stage of the process does Regulation 32 refer to when referring to the term 'introduction' is it the interview or first day on the job.
Leave a comment:
-
Originally posted by TykeMerc View PostAs Wanderer quite rightly pointed out signing it into a contract can be used in an argument over intent if it ever came to a court fight, since UK judges have leeway to look at intent rather than the strict wording I'd rather not hand ammunition over to get shot with.
Plus of course if the court battle was over a contract breech like non payment, admitting that you'd signed the contract in the full knowledge that you had no intention of upholding a clause would be at best ill advised and could easily be called stupid if not fraudulent.
Both address the issue where a party has relied upon illegitimate pressure which has caused another party to accede to its demands. A Court would pay particular attention to the negotiations that formed the basis of the contract and if you have clear evidence that the agency wasn't playing by the rules then your argument is strengthened.
Leave a comment:
-
Originally posted by Wanderer View PostDo you have a reference to back this up or is it just
your opinion? Your statement appears to be at odds with the agency conduct regulations which appear to specifically prohibit this:
The Agency Conduct Regulations Section 32(13) states
Neither an agency nor an employment business may make the provision of work-finding services to a work-seeker which is a company conditional upon the work-seeker, and the person who is or would be supplied by the work-seeker to carry out the work, entering into and giving notice of an agreement as referred to in paragraph (9), to the agency or employment business.
.
You may not like it but it's how the agencies address the issue. If you think it's wrong then sue them and we'll get clarity. Until then, thre is nothing to stop what you call abuse and what they call good business.
Also, consider this. The regualtions do little if anything for the genuine freelance contractor but mainly generate a lot of extra paperwork on both sides. Most of us were arguing that they shouldn't ever have applied to us but should have been focused on the casual labourers and agency temps they were meant to prootect. If the agencies are universally operating as though everyone has opted out, isn't that precisely what we were trying to acheive?Last edited by malvolio; 25 November 2012, 10:21.
Leave a comment:
-
Originally posted by TykeMerc View PostSorry Mal, we agree on a fair few things, but since the PCG was directly involved and part of the consultation process that resulted in this pestilent Opt Out as an organisation they have to accept substantial responsibility for it. As we all know it's used to batter us contractors round the head to the direct benefit of the agencies and when it was inserted into the regs I recall the PCG touting it as a major success.
They ****ed up royally though (just like they have again over IR35 mark II) and rightly need their arses kicking.
As Wanderer quite rightly pointed out signing it into a contract can be used in an argument over intent if it ever came to a court fight, since UK judges have leeway to look at intent rather than the strict wording I'd rather not hand ammunition over to get shot with.
Plus of course if the court battle was over a contract breech like non payment, admitting that you'd signed the contract in the full knowledge that you had no intention of upholding a clause would be at best ill advised and could easily be called stupid if not fraudulent.
Leave a comment:
-
Originally posted by Wanderer View PostDo you have a reference to back this up or is it just your opinion? Your statement appears to be at odds with the agency conduct regulations which appear to specifically prohibit this:
The Agency Conduct Regulations Section 32(13) states
Neither an agency nor an employment business may make the provision of work-finding services to a work-seeker which is a company conditional upon the work-seeker, and the person who is or would be supplied by the work-seeker to carry out the work, entering into and giving notice of an agreement as referred to in paragraph (9), to the agency or employment business.
And what does the PCG have to say on the subject of the abuse of the opt out?
Doing business in such a way that you sign contracts on the basis that it's unenforceable under law is a very dangerous position to take. It could be argued in court that the intent of both parties was that the regulations would not apply and that could make things very difficult for the contractor if they were to try and use that defence.
Leave a comment:
-
Sorry Mal, we agree on a fair few things, but since the PCG was directly involved and part of the consultation process that resulted in this pestilent Opt Out as an organisation they have to accept substantial responsibility for it. As we all know it's used to batter us contractors round the head to the direct benefit of the agencies and when it was inserted into the regs I recall the PCG touting it as a major success.
As Wanderer quite rightly pointed out signing it into a contract can be used in an argument over intent if it ever came to a court fight, since UK judges have leeway to look at intent rather than the strict wording I'd rather not hand ammunition over to get shot with.
Plus of course if the court battle was over a contract breech like non payment, admitting that you'd signed the contract in the full knowledge that you had no intention of upholding a clause would be at best ill advised and could easily be called stupid if not fraudulent.
Leave a comment:
-
Originally posted by malvolio View PostThirdly it cannot be made a condition of the contract, although obviously the agency can choose who they want to do business with - as can you and any other company - and if they only want to deal with opted out people that's their right.
The Agency Conduct Regulations Section 32(13) states
Neither an agency nor an employment business may make the provision of work-finding services to a work-seeker which is a company conditional upon the work-seeker, and the person who is or would be supplied by the work-seeker to carry out the work, entering into and giving notice of an agreement as referred to in paragraph (9), to the agency or employment business.
Originally posted by malvolio View PostBut stop blanming the PCG.
Originally posted by malvolio View PostHowever signing a clause in the contract saying you've opted out is totally meaningless
Leave a comment:
- Home
- News & Features
- First Timers
- IR35 / S660 / BN66
- Employee Benefit Trusts
- Agency Workers Regulations
- MSC Legislation
- Limited Companies
- Dividends
- Umbrella Company
- VAT / Flat Rate VAT
- Job News & Guides
- Money News & Guides
- Guide to Contracts
- Successful Contracting
- Contracting Overseas
- Contractor Calculators
- MVL
- Contractor Expenses
Advertisers
Contractor Services
CUK News
- Streamline Your Retirement with iSIPP: A Solution for Contractor Pensions Sep 1 09:13
- Making the most of pension lump sums: overview for contractors Sep 1 08:36
- Umbrella company tribunal cases are opening up; are your wages subject to unlawful deductions, too? Aug 31 08:38
- Contractors, relabelling 'labour' as 'services' to appear 'fully contracted out' won't dupe IR35 inspectors Aug 31 08:30
- How often does HMRC check tax returns? Aug 30 08:27
- Work-life balance as an IT contractor: 5 top tips from a tech recruiter Aug 30 08:20
- Autumn Statement 2023 tipped to prioritise mental health, in a boost for UK workplaces Aug 29 08:33
- Final reminder for contractors to respond to the umbrella consultation (closing today) Aug 29 08:09
- Top 5 most in demand cyber security contract roles Aug 25 08:38
- Changes to the right to request flexible working are incoming, but how will contractors be affected? Aug 24 08:25
Leave a comment: