Reply to: The "Conduct Reg's" are virtually unenforceable against your intermediary

[Rory Dwyer]

Really! Can you enlighten us as to what "tax and consolidated reporting" obligations or "controlled associated companies legislation" that the opt out of the Agency Regulations frees the client from because I can't think of any and to be honest, it just sounds like FUD spreading to me.

RORY : CTM03730, s 13 ICTA 1988, S416, CTA2010/S450, S451 and S1069(3) specifically in relation to CTM60210 - Close companies “CTM 60220”.

All the agents start off by saying that - until you tell them you aren't going to opt out and then they go ballistic.

Rory : The virtual majority of the individuals that we deal with opt out of their own volition, those few that don't, I would wager do not operate outside of IR35. I really don't have an opinion on whether you personally opt out but I am bringing to your attention, the considerations you need to bear in mind



My advice here also comes with a guarantee - see the bottom of this message...

I am not providing advice, just sharing with you the judgements of Justice Sales and District Judge Workmen. What you do with that information is your look out.

[Wanderer]

In relation to the clients position, I am very confident that, any statements made by any hirers would have been made without them being aware of the obligations of ancillary legislation.

If they were aware of their obligations re tax and consolidated reporting, they would run a mile from an opt in.

Really! Can you enlighten us as to what "tax and consolidated reporting" obligations or "controlled associated companies legislation" that the opt out of the Agency Regulations frees the client from because I can't think of any and to be honest, it just sounds like FUD spreading to me.

In summary, opt in or opt out, it matters not a jot to me

All the agents start off by saying that - until you tell them you aren't going to opt out and then they go ballistic.

I have started this thread for the readers of this forums benefit, some people would pay good money for the information I have imparted.

My advice here also comes with a guarantee - see the bottom of this message...

[SueEllen]

I wish an admin would close this thread as it's going round in cycles.

[Rory Dwyer]

So, you've not clearly answered the question multiple times. If you had, you'd be able to provide an example of where you've answered it.

Just one of the clear answers will do - you don't have to show the multiple times you've answered the question.

Come on, Rory - show us one post where you have clearly answered the question.

CNL, at all times, in relation to the engagement in question considered itself an employment business supplying an individual through his respective PSC NOT under the predominant control of the hirer.

It will stay the same answer no matter how many times you ask the question.

[TheFaQQer]

I have clearly answered this question multiple times

None of the above, and the more times you ask the same question will have no influence on the answer given

So, you've not clearly answered the question multiple times. If you had, you'd be able to provide an example of where you've answered it.

Just one of the clear answers will do - you don't have to show the multiple times you've answered the question.

Come on, Rory - show us one post where you have clearly answered the question.

[Rory Dwyer]

Actually, you haven't. The closest was this exchange:





Unless I've missed it, in which case you can just point me to the exact post where you answered whether the clause was left in by ignorance, incompetence or fraud.

None of the above, and the more times you ask the same question will have no influence on the answer given

[Old Greg]

Set your preferences to display 40 posts per page. Then there are only four pages to read through.

HTH.

CBA

[TheFaQQer]

Can you summarise please? There are 15 pages to wade through.

Set your preferences to display 40 posts per page. Then there are only four pages to read through.

HTH.

[TheFaQQer]

I have clearly answered this question multiple times

Actually, you haven't. The closest was this exchange:

So what's the answer - how honest and ethical were you when you included that clause in the contract?

Dear Dirty Dog,

The contract that was used as our base contract was the REC contract.

In relation to answering your ethical question CNL was always of the opinion that the highly skilled contractors that we supplied, like myself, were not under the control of their respective hirers. Given the ambiguity that surrounds the myriad of legislation concerning this and many other areas (hence why this legislation is up for red tape review). As a second tier precaution, and to remove any ambiguity surrounding what legislation applied the contractor opted out and the hirer was aware of this opt out.

Unless I've missed it, in which case you can just point me to the exact post where you answered whether the clause was left in by ignorance, incompetence or fraud.

[Old Greg]

I have clearly answered this question multiple times

Can you summarise please? There are 15 pages to wade through.

[Rory Dwyer]

The contract describes the agency as an Employment Business - there is an explicit clause which says that they are an Employment Business.

The court ruled that they aren't an Employment Business.

Rory has already expressed his thoughts on this - they could describe themselves as anything they want in the contract, but if the court doesn't accept that, then there is no harm done.

Rory has not answered whether the description of CNL as an Employment Business was incompetence, ignorance or fraud - merely to say that they adapted a standard contract from REC.

I have clearly answered this question multiple times

[malvolio]

ISTM this whole affair just proves the incompetence of the PCG in everything they do, and specifically their absurd negotiation of the opt-out clause in the first place. IMO it's time they wrapped up and called it a day. After wiping the egg off their faces...

Boo

Except the PCG supports a lot more than BoS IT contractors. The opt out was only negotiated at the request of their members who use subbies of various flavours. It's the agencies that decided to use it for their own money-saving purposes and who are therefore creating the confusion. If you want to fight a war, a good first step is to identify the correct target.

[TheFaQQer]

That's as maybe. However my question to you (and which you have failed to answer) was are you or are you not an employment business? did you pass yourself off as an employment business when engaging Clearwater?

The contract describes the agency as an Employment Business - there is an explicit clause which says that they are an Employment Business.

The court ruled that they aren't an Employment Business.

Rory has already expressed his thoughts on this - they could describe themselves as anything they want in the contract, but if the court doesn't accept that, then there is no harm done.

Rory has not answered whether the description of CNL as an Employment Business was incompetence, ignorance or fraud - merely to say that they adapted a standard contract from REC.

[Boo]

PGC with egg on their face

ISTM this whole affair just proves the incompetence of the PCG in everything they do, and specifically their absurd negotiation of the opt-out clause in the first place. IMO it's time they wrapped up and called it a day. After wiping the egg off their faces...

Boo

[Rory Dwyer]

That's as maybe. However my question to you (and which you have failed to answer) was are you or are you not an employment business? did you pass yourself off as an employment business when engaging Clearwater? It should be easy enough to answer given that if you are an employment business, you are required to make that clear. Nowhere on your web site is it mentioned. I don't know what your contracts state and indeed whether you are registered as an employment business but if you are not, why did your contract require the supplier to opt in OR out and if you are why did you claim you were not in court?

Instead if clarifying anything, your thread is quite confusing. But given that the emboldened part is clear, you cannot have it both ways. I would suggest the judge got it wrong - it has happened before and will continue to happen - given that whoever has the most money and/or will usually wins a case.

It is not the fault of CNL that there exists ambiguity in the law. Much as it is not the fault of a contractor that there isn't a clear test of contract for or of service.

Therefore, as a belt and braces approach to supplying highly skilled individuals whom are not under the predominant control of the employment business or hirer.

A position, if the contractor was up against the HMRC for IR35 purposes they would be very glad of our position.

In this engagement, the contractor had opted out prior to supply and the hirer was aware of this.

Our contracts were clear on the issue of control and the fact that we are stated as an employment business. I will repeat, for this engagement we supplied an individual through his PSC to a hirer but who was not under the predominant control of that hirer. The individual and the work seeker were under their own control.

We weren't obliged to declare anything in court, because the contractor had signed a contract stating that he wasn't controlled as did the hirer, under cross examination, the contractor and the hirer both admitted that the hirer did not control the contractor and they refused to adduce any evidence whatsoever that any form of direction and control existed as rights or were indeed exercised.

Such was the position, the judge found it relatively easy to come to the conclusion that in accordance with the precedent in Accenture Services vs HMRC 2003 that predominant control had not passed to the hirer.

We sought disclosure many months prior to the trial hearing of evidence of the control exercised by the hirer over the contractor from BIS. BIS procrastinated to disclose and never did even though this was part of a pre trial order along with other requested materials, namely the tax records of the contractor, to show the IR35 position, which BIS also procrastinated which meant they were not available for the hearing.

CNL sought clarification from BIS through multiple freedom of information act requests (all of which they obfuscated in giving a response to time bar prior to trial) on the areas of ambiguity and leading up to the trial BIS presented contradictory facts to their own evidence as to the treatment in law on certain aspects.

With regards to money, CNL does not have more funds or resources available to it than BIS. Hence why i am fairly well versed in the issues as I had to research and study our position.