Reply to: Contract Restriction!

[Bones]

I would up the ante with the agent by filing a complaint with the REC.

If the REC back them then you are probably stuffed but most likely you will find that this bargaining chip will leave the agent feeling very contrite and that this has all been a huge misunderstanding, this was the work of one rogue agent who has been taken away for reprogramming and you can have the IR35 friendly contract even without the opt out....

I like your style, go straight for the jugular!

To be fair my contract issues have basically been resolved by default. I will have the meeting with them and tell them what REC have said and offered to take on a complaint. I will see if they are apologetic and offer to resolve! Then decide if there is any value in pursuing a complaint.

[Wanderer]

Ok I got a reply from REC today, they have confirmed that they do supply 'model' contracts suitable for Limited Company Consultants without the opt out clause. They also reaffirmed that you cannot be forced to opt out and suggested that my experience may be grounds to complain and offered me a link to their complaints process. So to be fair full marks to REC.

I would up the ante with the agent by filing a complaint with the REC.

If the REC back them then you are probably stuffed but most likely you will find that this bargaining chip will leave the agent feeling very contrite and that this has all been a huge misunderstanding, this was the work of one rogue agent who has been taken away for reprogramming and you can have the IR35 friendly contract even without the opt out....

[Bones]

Bones reproduced a single paragraph of a document which is freely available and the reproduction was done for the purposes of research, private study and criticism as permitted as "Fair Dealing" under United Kingdom law.

HTH

^^^^^^^^
I agree totally

To clarify the PDF is freely available on Google, which is where I got it.

Ok I got a reply from REC today, they have confirmed that they do supply 'model' contracts suitable for Limited Company Consultants without the opt out clause. They also reaffirmed that you cannot be forced to opt out and suggested that my experience may be grounds to complain and offered me a link to their complaints process. So to be fair full marks to REC.

As I though all along it looks as though the agent I am through decided to only offer one of a pair of contract for opt in or out as a convenient way to force the issue!

I am supposed to be meeting the agent next week so I have a little more ammunition to show why I was right all along and why their legal dept are a bunch of amateurs/crooks!

[Contreras]

Nope, just checked. It's for Members only, as are most of them, so they are not meant to be "freely available" to non-members. I wasn't being entirely serious (hence the smiley) and I suspect they won't be suing anyone though; it's more important that people know these things exist.

The guides are freely available.

It's good to know that the PCG won't be suing anyone, members or non-members, for posting quotes on a discussion forum.

https://www.google.co.uk/#q=site:pcg...ct+regulations

http://www.pcg.org.uk/sites/default/...de_2013_v2.pdf

[malvolio]

Bones reproduced a single paragraph of a document which is freely available and the reproduction was done for the purposes of research, private study and criticism as permitted as "Fair Dealing" under United Kingdom law.

HTH

Nope, just checked. It's for Members only, as are most of them, so they are not meant to be "freely available" to non-members. I wasn't being entirely serious (hence the smiley) and I suspect they won't be suing anyone though; it's more important that people know these things exist.

That aside, I stand by what I said. Context is important.

[Contreras]

So why are you posting a copyrighted members' only resource on a public forum then?

I wasn't aware that PCG members were permitted to post copyrighted members' only resource on a public forum. Thanks for the clarification.

[Wanderer]

So why are you posting a copyrighted members' only resource on a public forum then?

Bones reproduced a single paragraph of a document which is freely available and the reproduction was done for the purposes of research, private study and criticism as permitted as "Fair Dealing" under United Kingdom law.

HTH

[malvolio]

Actually I am not a member of PCG,

So why are you posting a copyrighted members' only resource on a public forum then?

I am not sure what legal opinion they could give me that an agent would give two hoots about. The attitude I have had so far is that, 'this is our std contract we are not changing anything in it. Our contracts are supplied by REC therefore they must be right'.

They would ask REC on your behalf and would get you an answer; it was PCG that got Hays's HIT20 changed remember. Actually they already have anyway; REC contracts are not compulsory, they are neutral wrt the opt out and most of the bits we don't like are added by the agency to reflect the nonsense they've agreed to with their client. You can always offer the standard PCG contract as an alternative of course...

I will report back if I get any reply to my question.

That would be good.

[Wanderer]

The purpose of contacting REC was simply to get their point of view, however I will probably be lucky if I get a reply! As a contractor I am just a cash cow to their members.

Be sure to raise a formal complaint otherwise they can just fob you off. A formal complaint has to follow their procedures.....

Also complain to the BERR - info is in this opt out post.

[SueEllen]

I've contracted through a few agencies who are members of REC and all their contracts are completely different.

Even ignoring the client specific terms* the contract wording is not the same. Some of them but clauses in which are nonsense and legally unenforceble to cover a generic area for example to describe you as a contractor while others have a very well defined clause.

Opting in or out only effects margin when the client doesn't pay and the agent pays you after they get paid.

Certain sectors are more likely to pay up even if it's months later than others for example the government tends to pay up but estate agents can be poor payers if they can be forced to pay at all. This is one reason that if you are doing work for certain sectors and are paid within week of invoicing not to stress about the opt-out.

*There are ways and means of finding out client specific terms but lots of clients don't or can't show these terms until you are on site.

[Bones]

But taken out of context. That whole section is saying that reducing the agency's liabilities by opting out gives you a negotiating lever for getting a better, more IR35-friendsly contract since some restrictions on what the agency can offer are not applicable. It says nothing about any interdependency between opting out (or not) and being liable for IR35; that remains down to the real conditions under which you are working.

Not sure why you say its out of context, this section is in the form of separate questions followed by answers under the heading of Further Consideration. I disagree its a positive lever, the agents expect you to opt out as minimum because all contractors opt out its the right thing to do...according to them!

Know your enemy, said Sun Tzu...

REC don't offer contracts, they are an agency support group (in the same way that PCG are a freelancer's one). You should remember that they therefore support agencies, and agencies have a commercial interest in you being opted out. It's nothing to do with working practices or D&C or anything else; all the agent worries about is his margin and therefore his commission. You opt in and his margin is reduced and his take-home goes down; agents are paid on meeting targets, a key one being his overall margin on his stable of engaged contractors.

And since you're clearly a PCG member, why aren't you asking them for advice via the legal helpline; that's what it's there for...

REC offer 'std' contracts to its agency members to force on contractors. I am well aware that REC totally supports agents and has no concern for contractors best interests. However I dont agree that opting in or out has any real effect on margin. It is about stripping contractors of their rights and allowing them to impose unreasonable working restrictions.
The purpose of contacting REC was simply to get their point of view, however I will probably be lucky if I get a reply! As a contractor I am just a cash cow to their members.

Actually I am not a member of PCG, I am not sure what legal opinion they could give me that an agent would give two hoots about. The attitude I have had so far is that, 'this is our std contract we are not changing anything in it. Our contracts are supplied by REC therefore they must be right'.

I will report back if I get any reply to my question.

[malvolio]

The quote is from the second paragraph on page 10 of 14 of the 2013 agency conduct regulations, version 2 I think, from the PCG.

But taken out of context. That whole section is saying that reducing the agency's liabilities by opting out gives you a negotiating lever for getting a better, more IR35-friendsly contract since some restrictions on what the agency can offer are not applicable. It says nothing about any interdependency between opting out (or not) and being liable for IR35; that remains down to the real conditions under which you are working.

The agent has asked to meet me early next week, which I am happy to do. I would have liked to get some feed back from REC before then as to whether they offer any IR35 complaint contracts that dont require opt out . There is a general inquiry email address on their web page I could try, I can only see if I can get a coherent reply or just slaver!

Know your enemy, said Sun Tzu...

REC don't offer contracts, they are an agency support group (in the same way that PCG are a freelancer's one). You should remember that they therefore support agencies, and agencies have a commercial interest in you being opted out. It's nothing to do with working practices or D&C or anything else; all the agent worries about is his margin and therefore his commission. You opt in and his margin is reduced and his take-home goes down; agents are paid on meeting targets, a key one being his overall margin on his stable of engaged contractors.

And since you're clearly a PCG member, why aren't you asking them for advice via the legal helpline; that's what it's there for...

[Bones]

The quote is from the second paragraph on page 10 of 14 of the 2013 agency conduct regulations, version 2 I think, from the PCG.

The agent has asked to meet me early next week, which I am happy to do. I would have liked to get some feed back from REC before then as to whether they offer any IR35 complaint contracts that dont require opt out . There is a general inquiry email address on their web page I could try, I can only see if I can get a coherent reply or just slaver!

[Wanderer]

This suggests that if you dont opt out the agent cannot legally give you a 'completely' IR35 friendly contract!

Having read the Agency Conduct Regulations (sad, I know) I don't recall any such restriction on but I'm happy for anyone to point it out it if is there.

And let's get something else straight - agencies don't give a flying tulip about what they can "legally" put in contracts. I've seen all sorts of unenforceable and down right illegal stuff thrown into contracts. I don't see why they would bother about a minor clause about fixing your mistakes on your own time because it's (allegedly) not permitted by the Agency Conduct Regulations.

It's also the working practices that matter. Tell me, have you ever worked late to fix a mistake you have made at work and not charged for it? If you have then you've ticked that box in the IR35 status investigation. It's a minor pointer in any case.

And on your first point, if the choice is having losing taxation on your earnings and not having any earnings to lose taxation on, I know which way I'd go...

Fair point, but working on a genuinely IR35 caught contract is near enough to going permie (without the benefits) and for that reason, yes I would seriously consider walking away. Working under D&C of the client is simply not my style of contracting.

That's not the situation here though - what we have is an agency deliberately sabotaging the IR35 status of a contract for no other reason than to bully the contractor into signing away their statutory rights and that's a pretty nasty trick.

Good luck with the fight, Bones. You are a tough cookie.

[malvolio]

...snip...

This suggests that if you dont opt out the agent cannot legally give you a 'completely' IR35 friendly contract!

No, it doesn't. It means one of the ancillary indicators to you not being treated as an employee may be removed. It does nothing to affect D&C, RoS and MOO which are the bits that actually metter.

The deeper I go the more messy this is getting!!

It's been messy for nearly 15 years. Live with it.

And on your first point, if the choice is having losing taxation on your earnings and not having any earnings to lose taxation on, I know which way I'd go...