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T&C's advice please


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Hi Guys,

 

I apologise now but I am a member and have set up this account to protect my identity.

 

A company that I regularly freelance for a company that completely left me gobsmacked by after agreeing a rate for a job, sending me a PO with new T&C's attached. (Lightnix I would appreciate your input on this!)

 

"The rate quoted relates to your day rate which, on average, will be a 12 hour day. Occasionally, the working day will be more or less than 12 hours but the rate will remain unchanged. Additional hours over the 12 hours will not be paid for, nor will money be deducted from working days of less than 12 hours."

 

I appreciate that given the tax mans stance on being self employed (which I am) but in the 'real' freelance world, you have a standard working day of 12 hours. Anything over that (within reason) becomes a day and a half, up to 18 hours, then a double day if not before.

I realise that this doesn't fit in the way that I should be told what the company want me to do, quoting a price, getting a PO, invoicing (as mentioned in several previous threads) but in reality it doesn't work this way in the corporate audio visual world.

 

I have tried to explain to the company that this is unacceptable and I am unwilling to accept these terms, but they have asked me to state my reasons in writing to them. I haven't found anything on the IR website that backs this up.

Given that I was only given the PO the day before the booking, I verbally refused to accept them (in hindsight I should have sent an email stating this as well). I have read everything I can find on the subject in previous threads and copied them below.

 

I have said that any booking will not go over 12 hours, and if the job isn't likely to finish within the 12 hours, then I will call him and renegotiate the rate for the extra time that is required if I want and am able to stay on.

 

I would like any other info apart from listed below as to the legalities and implications of what they have asked me to accept, and reasons why (I feel) it is unreasonable and possible unlawful.

 

Thanks for any replies!

 

The Inland Revenue has recently succeeded in claiming that some suppliers of technical services, who are sole traders or "freelancers", are in fact temporary or part time employees. As an employee, income tax and NI contributions have to be deducted at source by the employer, who also has to pay Employers National Insurance.

You may need to demonstrate and generate a business transaction as follows:

• The Company will detail the contract to you (initial enquiry).

• You quote the company a price for completing the work

• The Company accepts your quotation, even if it is a verbal quotation (by sending you a purchase order)

• You complete the sub contracted project and submit an invoice for payment.

edit due to info not pasting on the end!

 

Moderation: This duplicate account is, somewhat ironically, against the Blue Room's T&Cs, so this is just a note to advise other people not to do this please, it just creates more work for us :). We understand the poster's reasons for doing so the moderation team are currently discussing the best course of action. In the mean time please feel free to help the OP with his problem.

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A quick thought on this,

 

Weigh up how many times you work over and under a 12 hour day. If you find you only occasionally do more than 12 a day for this company and you also get alot of short days at full day rate then you may be able to live with it. If not, and you regularly do 12 hours + then work to rule. Pack your bags up at 12 hours and say "Cheers mates thats my 12 hours".

 

If you are a member of a union - I.e BECTU, then you can consult them for advice.

 

Surely, as I think you suspect, they should not be dictating those kind of terms on a PO. It should be part of your T&Cs and you quote for a job, not daily rate.

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Guest lightnix

It's a bit of a sticky one, this. I've read it over and over again and the opinion I'm coming to is that what this company is asking may not break the IR56 regulations per se, even if it is arguably against the spirit of the regs, although I stress that this is only an opinion.

 

IF the company was saying...

We are paying you for 12 hours and that is how long you will remain on-site; even if you finish your work in 8 hours, we will expect you to then work with other departments to complete the job on schedule.
...THEN they would most likely be in breach of IR56.

 

BUT... they're NOT actually saying that. "All" they are doing (in a way) is reminding their crews of the fixed price nature of the contracts they issue.

 

I suppose that at least it's a step up from the "A day is 24 hours" mentality that used to dominate the business :)

 

There are all sorts of things you can "do about it", but you need to examine your relationship with this client, before you decide what course of action to take (if any).

 

Ask yourself...


  • What are their "days" like - do they normally finish within 12 hours, or are they always trying to squeeze the extra mile out of people?
  • How well organised are their jobs?
  • What are their rates like - high or low?
  • How quickly do they pay?
  • Do they allow extras such as travel and PDs?

In short: What are they like to work for?

 

If you do decide that you want to do "something" about it, you may consider...

  • ...work to rule.
    Write to them and politely explain that you reserve the right to refuse (as opposed to refusing point blank) to work more than 12 hours in one go, for H&S reasons. You might suggest that this may particularly apply to jobs of more than one day's duration, or jobs where you have a booking the following day (it being unfair to tomorrow's client and crew, to arrive on site knackered). Finish off by explaining that it is their responsibility to ensure that there is adequate budget, planning, crew and resources to finish the job within those hours.
  • Set a simple upper limit of, say 14 hours, on the time you are prepared to spend on site; again for H&S reasons.
  • Put your T&Cs in writing and send them to your client.
  • Insist that a full schedule (as far as it is known) be included with the initial enquiry and quote accordingly for any long days, in advance of receiving any PO.
  • Raise your rates to them by, say 10%, as a kind of "blanket cover" for the days when you will work the extra mile.
  • Enforce payment terms more strictly.

...among other things (I'll post them if I think of any).

 

But like I say: in the end it depends on how much you want / need to keep this client and how strong your existing relationship with them is.

 

That's something only you can answer :)

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The price per job aspect keeps both you and them clearly in the self-employed contractor status, whicg likely suits both of you.

 

The possibility of long days puts you at H&S and work time problems.

 

Only you can decide which is better, working for them or finding work elsewhere!

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To be honest, they always have you do a 12 hour day if its a rig (no less than 10 on a show day), the jobs are badly prep'd and organised, they pay the least amount out of all of my clients and payments seem to be getting later and later.

 

The straw that has broken the camels back for me was doing a 12 hour day on-site in Manchester, then having to drive 1 of 2 vans back to London and tip them only to be told that they "could only afford to pay a standard day rate" as it hadn't been costed into the job.

 

I think I have answered my own question!

 

I was hoping that their new clause broke a reg and I would be able to keep them as a client by demonstrating to them that it was unlawful, but as it doesn't seem that way, I guess I will be on the hunt for a new client!

 

Thanks for your replies!

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I was hoping that their new clause broke a reg and I would be able to keep them as a client by demonstrating to them that it was unlawful, but as it doesn't seem that way, I guess I will be on the hunt for a new client!

TBH, if you have to point out to a client that something is unlawful then it is always time to find a new client.

 

As a general business philosophy, I've always reckoned that the day either party has to refer to a previously agreed contract, contract of employment or set of T&Cs then that is the day to part company.

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Driving IS a job! The guy that drove his landrover down a railway line cos he was asleep did time for causing a major rail crash.

 

Someone's sig revised ; Your failure to plan isnt my emergency.

 

These days insurers prefer some control over who drives, and insurance is often "Any Named Employee" of the company NOT unknown freelancers. Don't drive til you have seen the certificate as an employee you have some mitigation that your manager instructed you. As a freelancer you have nothing, you drove uninsured. Do they have a copy of your licence? If not they have no proof of you having one so they havent told their insurers about you, so you are not insured.

 

Remember it's your licence that takes the pionts.

 

My firm take copies of all driving licences every six months, to keep up with all the additions!! Certain endorsements are unacceptable to the company's insurer.

 

Time to be looking for a move on.

 

Does your licence have all the groups or you young enough to have only the current lighter van groups. Pre 95 pass the car test and you got all up to 7.5 tons inc trailers post 95 and you are very limited and no trailers til you pass more.

 

As you are self employed their new term will cause YOU to break the law, but not them!

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Unfortunately I was 30 on Wednesday and passed my test when I was 17 so am, and have driven 7.5 ton trucks for them in the past. The job mentioned in my previous reply involved showing up at the unit at 4.30am to find out that both vans were loaded (good!) but the warehouse guy had gone home with the keys to the ram bar in his pocket!

Very P*ssed of Op's manager/the guy who books me when I phoned to say how do we get the vans out! That aside, both vans were overloaded (in my opinion) and I took a chance on my licence and drove one to Manchester to make sure that the 4 day job happened and there wasn't any other vans to use anyway. (I know thats not my problem)

 

It was insult to injury driving back and fortunately, they don't have an Operators Licence anymore, so no more van or truck hires over 3.5 tons!

 

As I said before, I'm done there but may still ask for a meeting just to let them know how and why, as they are obviously oblivious to it!

 

Cheers

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