I have recently gone freelance. I work in the offshore industry on ships. I signed a contract with an agency after they found me a job. The job lasted 30 days onboard a vessel. When I finished that job I went with a different agency to work for the same company immediately after the first job had finished. I did not tell the first agency, they never asked and I thought it to be non of their business anyways. When I was offered the second job through the same company but different agency the company rang me up and asked me which agency I wanted to go through because the first agency had initialy introduced me to the company they told me under this situation it is their policy to ring the contactor up and give them the choice. When agency number 1. Found out about this one way or another, after I emailed them to ask when I would be paid for my services I received a rather abusive email. I have included extracts modified from our email corispondance from when they first offered me work to now. I have also included a copy of the documents I signed. Please tell me where I stand with this. I am still due over £4000 from what I invoiced (figure taken after tax deductions). How would you suggest I respond to the last email am I in breech of contract, are they able to decuct for damages? Are they not in breach of contract by not having paid me full invoiced amount within the 30days stipulated in the contact. What legal grounds can I use against their arguments. (Please dont include this or other info on your website, i am putting more info on the next page)
Morning Mr Y,
…………Proposed rate for the first trip would be £335/day for UK sector work and £440 (£300/day after tax). I am not sure if you are aware of Norwegian work, but basically we have to deduct taxes on your behalf and pay to the Norwegian Tax Authority. You will receive an end of year tax return from our accountants confirming the taxes that have been paid in any one year on your behalf. It is likely through you accountant you may then be able to claim some of the taxes back.
If the first trip went well, ……
If you would be happy to proceed on the above basis please let me know and I will confirm the rates to company X and see if we can get a trip confirmed.
Please also find attached our registration form which I would be grateful if you could complete, sign and return a scan to me. Please see the note below re the question we have to ask on the second page:
Registration form notes
The conduct regulations are regarding temporary staff in the UK. As an agent we have to give people the chance to opt in or out. By opting ‘out’ you agree that you are a specialist freelance contractor and not a temporary worker, that you are happy therefore that these regulations do not apply to you/us. As such, there is no requirement by us to deduct taxes (UK) on your behalf, pay national insurance, offer holiday, sickness pay etc, etc.
01/06/14 (I wrote this to agent1 after having finished the job with them and whilst on the next job through agency2 but working for the same company, previouse to this I had sent my invoice to agency1 and told them I was currently not available for work and would notify them when I was as they kept emailing me asking when I would be available again)
It may be in the contract but i don't have it to hand at the moment, when will I be paid for last trip please? Also just want to check the address you have on file for me it should be xxx
I have wondered why you have been so cagey since leaving XXX and am absolutely disgusted to find out that you immediately returned to XXX via another agent.
I await your explanation so that we can decide how to move forward and remind you of the fact that you signed a contract with us which includes Protection of Agency’s Business.
Dr Mr X. In response to your email dated 03 June 2014. Additional circumstances have arisen which may take my future company business and services in an alternative direction and just working on long term planning at the moment. I will update in due course as I establish my business base which may take a few months and I will confirm receipt of funds for services performed as due by Monday 16th June 2014. Regards, Mr Y
Mr Y, Please can you send me a proper email addressing what has happened. You signed a contract with us and have then undermined the terms and attempted to hide this from us. I have expressed deep concerns with XXX Director regarding this matter. I assume that it was merely financially driven and XXX have confirmed that it would appear this is the case. As agreed with them the rates for your first trip were to see how you performed and you too were made aware of this. ……I await your written response or please call me.
Regards, ***** *****
Dear Mr. X. Your payment for my services is now overdue. I trust this will be resolved in the next 24hrs. I would like to think that not paying on time is an image agency1 would be best avoiding amongst the freelance community and its clients. I remind you of my bank acc details:
18/06/14 (I received payment the next day but underpaid)
Dear Mr. X Thank you for your payment of XXX GBP. This is short of XXX GBP as per my invoice. Not only is the payment late for my services it is not the correct amount. I trust the remainder XXX GBP will be in my account by the end of UK banking hours today. I just tried to give Mr Z from Company X a call direct to check they have paid you the correct amount but he's not in his office right now. I'll try again later if necessary. Regards, Mr Y
As you were informed in writing, we became aware on the 03/06/14 that you had broken the terms of our contract. You have chosen not to respond to our repeated attempts at communications requesting an explanation. You will of course be aware, that under the terms of our contract which you breached, we may be entitled to claim for damages. Reference your email dated the 17/06/14. I have noted your statement and indeed you clear intimation. Please be advised that we will instruct our solicitors should there be any evidence of defamation now or anytime in the future. If you would like to discuss when future payments will be made to you, then please call me on the below number.
Documents I signed:
Agreement for the supply of Services
1. Definitions and Preliminary
1.1 'Agreement' means the Terms and Conditions set out in this document and accompanying Schedule between the Agency and the Service Provider, for specific Services to be supplied by the Service Provider to the Client.
1.2 ‘Agency’ means Agency Number1 Limited (Company Number xxxx) whose registered office is at xxxxxxxx
1.3 ‘Client’ means the person, firm or corporate body together with any subsidiary (as defined in section 1159 of the Companies Act 2006), named in the Schedule for whom the Agency has agreed to provide a Service Provider.
1.4 ‘Schedule’ means the schedule to these Terms and Conditions.
1.5 ‘Service Provider’ means any specialist freelance consultant or company engaged by the Agency to supply Services whose details are set out in the Schedule.
1.6 ‘Services’ means the services to be provided by the Service Provider as set out in the Schedule.
1.7 ‘Location(s)’ means the location(s) at which the Client requires the Services to be supplied.
1.8 ‘Price’ means the gross fee payable to the Service Provider as detailed in the Schedule.
1.9 ‘EAA’ means the Employment Agencies Act 1973, and ‘Employment Agency’ and ‘Employment Business’ have the meanings defined by the EAA. ‘Conduct Regulations’ means the Conduct of Employment Agencies and Employment businesses Regulations 2003.
1.10 ‘Opted Out’ means agreement made by the Service Provider and notified to the Agency (and in turn by the Agency to the Client), and having the effect that the Conduct Regulations do not apply in relation to any introduction to the Client or to the supply of Services under this Agreement.
1.11 ‘AWR’ means the Agency Workers Regulations 2010.
1.12 ‘Service Period’ means each period or periods of time during which a Service Provider is on contract to the Client and commences on the day the Service Provider departs from their normal residence for the work until their return to normal residence.
2. Service Provider Responsibilities
2.1 The Services will be provided for the Client as specified in the Schedule, with reasonable skill and care, and so far as is reasonably practicable within any agreed timescale:
2.1.1 any further specific details, prioritisation, and time estimates for each piece of work will be as agreed between the Service Provider and the Client from time to time;
2.1.2 any party may request in writing changes to the type and scope of the Services. Any such request must be sufficiently detailed to enable assessment of the effect of the requested change. No change will take effect until and unless agreed in writing and signed by all parties; and
2.1.3 there is no obligation on the Client or Agency to offer any other work beyond that specified in this Agreement, and no obligation on the Service Provider to accept any other work that may be offered. Save to the extent expressly provided, no party wishes to create or imply any mutuality of obligation between themselves whatsoever either in the course of this contract or between any performance of the services, during any period when work is not available, or during any notice period.
2.2 The Service Provider warrants that all details of education, qualifications and professional experience provided to the Agency in a Curriculum Vitae or other documentation are true and correct.
2.3 The Service Provider is engaged as an independent professional, with the ability to take ownership of the assignment, and answerable for key milestones and for deliverables, and responsible for exercising initiative as to the delivery of the Services.
2.4 The Service Provider will at all times represent itself as independent of the Agency and will under no circumstances represent or hold itself as a servant or employee of the Agency.
2.5 The Service Provider is responsible for:
2.5.1 maintaining adequate insurance as required by law, requested by the Client or as they see fit;
2.5.2 providing its own reference materials, administrative support, and equipment where required (other than where use of the Client’s equipment is required for reasons of security, because it is specialised, or because the Client’s equipment is itself the object of the Services);
2.5.3 providing its own PPE as appropriate; which is to be in line with industry standards;
2.5.4 ensuring that they have completed all necessary safety courses and medical examinations applicable to the work Location(s) to the approved industry standard and shall provide the Agency with copies of this information before the start of a Service Period. The Service Provider must carry the original documents with them when travelling to join a vessel or any other offshore Installation.
2.5.5 seeking medical advice relating to all inoculations and/or medication which may be required to work in or travelling to from the work Location(s);
2.5.6 devising appropriate working strategies, and determining the method and manner of performance of the Services;
2.5.7 providing the Services independently, in a professional manner, with all proper skill and care, and in accordance with any applicable professional standards, methodologies, and industry standard practices, and with all notified specifications and procedural requirements for the Project;
2.5.8 maintaining and providing evidence of any necessary qualifications, authorisations, and training as requested by the Client;
2.5.9 complying with all notified IT, telecommunications, security, substance abuse and Health and Safety policies, and with any other relevant legislative requirements reasonably applicable to independent contractors;
2.5.10 giving the Client reasonable notice of any periods when Services will not be provided; and
2.5.11 taking and being accountable for all appropriate decisions in relation to all aspects of the performance of the Services.
2.6 Where the Schedule names any personnel who are to provide the Services, or where the Client has a reasonable expectation that the Services will primarily be provided by a specific individual, the Service Provider is responsible for maintaining reasonable continuity, but nevertheless reserves the right to substitute (and, if so required by the Client on reasonable grounds, will substitute) other personnel of equivalent expertise.
2.7 The Service Provider acknowledges that the Client has the right, under its Agreement with the Agency to refuse to accept Services on reasonable grounds related to security, qualifications or expertise.
2.8 In the event of substitution, no additional charge will be made for any handover period, and the Service Provider remains responsible for defining the scope of (and, if any supervision and direction is required, for providing such supervision and direction of) the Services to be performed by the substitute, and in any event for all Services performed on its behalf.
2.9 If the Service Provider fails following a requirement from the Client to provide Services utilising substitute personnel reasonably acceptable to the Client within seven days of the requirement, either party may terminate an Agreement by immediate written notice.
3.1 The Service Provider will submit invoices to the Agency for the Price (calculated as a multiple of the number of days/hrs) at month end and on completion of a Service Period. Invoices will not be accepted at any other times.
3.2 The Agency will reimburse the Service Provider for all reasonable travel, subsistence and other expenses incurred by it in providing the Services:
3.2.1 provided that receipts or other evidence of payment are provided for all such claims; and
3.2.2 provided that the Agency receives all claims within 60 days of completion of the Service Period to which the travel, subsistence and other expenses relate.
3.3 The Service Provider acknowledges that no handling fee/mark up will be accepted and that only the direct cost of travel, subsistence and other expenses incurred will be reimbursed.
3.4 The Service Provider, as required, will submit time and expenses sheets for signature by the Client’s authorised personnel to confirm the days/hrs that have been worked and any expenses incurred.
3.5 The Agency is under no obligation to make payment in respect of Services with which the Client has notified in writing reasonable grounds for dissatisfaction, until the cause for dissatisfaction is rectified.
3.6 All accounts and invoices rendered by the Service Provider will be settled within 30 days of receipt, subject to Clause 3.1
3.7 The Agency aims to notify the supplier within 7 days of receipt of invoice, of any disputes it may have with the invoice.
4. Tax Liabilities
4.1 The Service Provider is independent of the Agency and shall be responsible for all reporting of fees, income tax liabilities and National Insurance or similar contributions in respect of any payments made to it for Services provided under this Agreement.
4.2 The Service Provider indemnifies the Agency in respect of any claims that may be made by the relevant authorities against the Agency in respect of income tax or National Insurance or similar contributions relating to the Service Provider’s Services provided under this Agreement.
4.3 Prior to a Service Period commencing in Norway the Service Provider will forward to the Agency its Norwegian Organisation (NO) number. Due to the obligations imposed on the Agency by the Norwegian Tax Authorities, failure to provide an NO number will mean the Agency will deduct tax for days declared by the Client as being worked in Norway. The Agency will report the activity of the Service Provider to the Norwegian Tax Authorities on Form RF1199. The Service Provider should expect that the tax liability may be up to 49% of the Price, dependant on a number of factors.
4.4 When required, the Service Provider shall report the provision of the Services to relevant Norwegian and/or foreign authorities.
4.5 The Agency will have to deduct 30% of the Price for any days declared by the Client as being worked in Denmark and come under the Hydrocarbon Tax ruling or the Labour Tax rules. With effect from 1 January 2011 an additional tax applies in the form of labour market contribution to the Danish state. The contribution amounts to 8% of the day rate. (cf section 1 in Act on Labour Market Contribution of 12 June 2009 amended by Act no 1278 of 16 December 2009). The Agency will deduct from the Price and pay the Labour Market Contribution of 8% as well as the 30% hydrocarbon of the Price being paid, combined deduction 35.6%.
4.6 For the avoidance of doubt, Clause 4.3 and 4.5 do not in any way negate the Service Provider’s sole responsibility for payment of its own withholding tax, withholding deductions, taxes, social security, national health payments, employer’s contributions, or any other payment which may be due to the Norwegian, Danish or any other Tax Authorities.
4.7 Where a liability to pay tax arises for the provision of Services in any foreign territorial waters or onshore, the Service Provider agrees that the Agency may withhold funds for any taxes due to the applicable tax jurisdiction, from monies due and in settlement of Invoices presented by the Service Provider to the Agency. The tax withheld to be at the rate applicable, this does not mean that the country’s tax office will not ask the Service Provider for further taxes to be paid.
5. Acknowledgements and Liability
5.1 Nothing contained in this Agreement shall in any way constitute the Service Provider as the employee(s) or worker(s) of the Agency or the Client and the Service Provider confirms that the Service is engaged under a contract for Services (in respect of which, without limitation, the Agency does not have the right to control the actions of the Service Provider in the way that it would if an employment relationship existed).
5.2 The parties acknowledge that the Agency is not obliged to put the Service Provider forward for consideration by the Client for the provision of Services and the Service Provider is not obliged to provide Services to the Client beyond the termination or expiry of this Agreement.
5.3 The Service Provider acknowledges that:
5.3.1 the Agency is in the business of providing resourcing services which comprise the sourcing and introduction of suitable Service Providers to the Client and the contractual arrangements for the provision of their Services to the Client;
5.3.2 it is not supervised on a day today basis by the Agency;
5.3.3 the Client may accept or reject in accordance with the terms of this Agreement the Service Provider with a view to performing the Services;
5.3.4 should it be entrusted by the Client with the handling of money, securities, valuables, negotiable documents or confidential information, it or they does so at its or their sole risk;
5.3.5 the Agency is only involved in sourcing, selection and introduction of the Service Provider to the Client and the Agency do not indicate acceptance of any liability for the Service Provider's acts, omissions or neglect. It is the Service Provider’s responsibility to insure against such liability.
5.4 In no circumstances shall the Agency be held liable for any indirect or consequential losses incurred or suffered by the Service Provider arising as a result of the provision of Services pursuant to this Agreement.
5.5 Nothing in this agreement shall operate to exclude or limit the Agency’s liability for:
5.5.1 death or personal injury caused by negligence;
5.5.2 its own fraudulent acts or omissions; or
5.5.3 any other liability which cannot by law be excluded.
6.1 Each party will keep any confidential information disclosed by the other or by the Client secret, and on termination (or sooner if required) will at the option of the owner thereof return or destroy such confidential information. Neither party may use or take advantage of any such confidential information without the discloser’s consent, even after the end of this Agreement.
6.2 This obligation does not apply to:
6.2.1 information known to the receiver before disclosure by the other party, and free of any obligation of confidentiality, or
6.2.2 information independently developed or acquired by the receiver, without reference or access to the discloser’s confidential information, and free of any obligation of confidentiality, or
6.2.3 information which becomes public knowledge without fault on the part of the receiver, or
6.2.4 disclosures made to the extent required by some applicable legal or regulatory requirement.
6.3 It is the Service Provider’s responsibility to provide any reasonable confidentiality agreement required by the Client and consistent with this provision.
7. Protection of Agency’s Business
7.1 The Service Provider will inform the Agency immediately it becomes aware if, within 6 months following the later of (i) introduction by the Agency to the Client, and (ii) the end of the most recent Service Period, the Client (other than through the Agency) makes an offer of employment or engagement direct to any person introduced or who has provided Services on the Service Provider’s behalf.
7.2 An introduction is deemed made on the Agency providing the Service Provider with sufficient information for the Service Provider to identify the Client introduced, unless the Service Provider already has a connection with the Client and so informs the Agency within 7 days, and (if requested) provides documentary evidence.
7.3 Where the Service Provider is a Management Company, this provision shall not operate so as to restrict the Service Provider from entering an engagement for services to be performed by one or more individuals who have not provided services under this Contract, provided that the Service Provider was not itself instrumental in introducing such individual(s) to the Client.
7.4 Subject to the above, an Agreement is not exclusive; the Agency acknowledges that the Service Provider enters this Agreement in the course of its business of providing services to its customers, and the Service Provider remains at liberty to also provide services to third parties. It is the Service Provider’s responsibility to ensure that no conflict of interest arises.
8. Data Protection
8.1 Each party warrants to the other that, in relation to these Terms, it shall comply strictly with all requirements of the Data Protection Act 1998.
9. Application of the Conduct Regulations
9.1 The Service Provider confirms that it has given notice to the Agency (in accordance with Regulation 32(9) of the Conduct Regulations) that it has Opted Out and that the Conduct Regulations shall not apply in respect of any introduction to the Client or to the supply of Services under this Agreement.
10.1 For the purpose of this Clause 10 only, ‘Immediate Notice’ means notice to terminate with immediate effect, and shall be effective however communicated, provided confirmed in writing as soon as reasonably practicable.
10.2 A Contract may be terminated:
10.2.1 by the Agency by Immediate Notice, if the Service Provider fails to provide the Services in accordance with these terms.
10.2.2 by either party by Immediate Notice, if the other is in material breach of contract, or is in breach of contract and fails to remedy the breach within fourteen days of being required in writing to do so, or if the other becomes insolvent or ceases to carry on business, or if any preliminary step is taken towards the other’s liquidation winding up receivership or administration (other than for bona fide reconstruction or amalgamation).
10.2.3 by the Agency by Immediate Notice, if (a) the contract under which the Agency provides the Service Provider's services to the Client terminates (for whatever reason), or (b) if it transpires that, notwithstanding the intentions of the parties, in the Agency’s reasonable opinion the engagement is likely to be subject to the provisions of the AWR and it appears that it may not be commercially realistic to provide any person who is an agency worker (within the meaning of AWR) with that person’s entitlement under AWR to equal treatment, or (c) if in the Agency’s reasonable opinion it is under a legal obligation to terminate.
10.2.4 By Immediate Notice by either party if that party shall become unable to commence, continue or completely perform its obligations under this contract by reason of illness, injury or other incapacity or by reason of Force Majeure affecting that party, which is not within that party’s reasonable control.
10.3 Any rights or obligations of a continuing nature shall survive termination.
11. Force Majeure
11.1 Neither Party shall be liable to the other, or be deemed in breach of this agreement for any delay or non-performance due to governmental regulation, labour disputes, hostile action, weather, fire, acts of God, or any other causes beyond such Party’s reasonable control (any and all of which causes are referred to herein as “Force Majeure”).
12.1 Any waiver by either Party of a breach of any provision of this Agreement must be in writing and shall not be considered as a waiver of any subsequent breach of the same or any other provision thereof.
13. Entire Agreement
13.1 This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof.
14.1 If any provision of this Agreement is held by any court or other competent authority to be void or unenforceable in whole or part, this Agreement shall continue to be valid as to the other provisions thereof and the remainder of the affected provision.
15.1 All notices, requests, demands or other communications to or upon the Parties to this Agreement shall be in writing and:
15.1.1 if given or made by letter, be sent by recorded or registered mail, postage pre-paid and, if overseas, by airmail and shall be deemed to have been given forty-eight (48) hours (in the case of domestic mail) and seventy-two (72) hours (in the case of airmail) after being deposited in the mails; or
15.1.2 if given or made by hand shall be deemed to have been given at the time of delivery; or
15.1.3 if by email or facsimile transmission, on confirmation of receipt; and
15.1.4 shall be given to the respective addresses set out in this Agreement or such other address as the parties may have notified in writing as its address from time to time to the other parties and in proving such services shall only be necessary to prove that the notice was properly addressed and posted.
16. Governing Law
16.1 This Agreement shall be governed by and construed in all respects in accordance with the Laws of England and each party hereby submits to the non-exclusive jurisdiction of the English Courts.
Name of Client:
Estimated start date of Service Period: xxxx
£440GBP pre deductions (post Norwegian Tax deductions £300, see clause 4.3) day, door to door.
The Agency and the Service Provider agree that the Terms and Conditions and this Schedule shall govern the supply of the Services.
This Agreement has been entered into on the date set out below or the date the Service Period starts, whichever is earlier.
Name: Position: Director Name:
for and on behalf of For and on behalf of
Agency number1 The Service Provider
Registration form (I opted out)
The Conduct of Employment Agencies and Employment Business Regulations 2003
If Services are to be provided under the control of the Client, an introduction or engagement by an Agency to a potential Client may be ‘Employment Business’ and therefore governed by the Employment Agencies Act 1973 and regulations made under that Act.
It therefore follows that an introduction or engagement for specified Services from an Independent professional accepting responsibility for them, would therefore generally be expected to fall outside the scope of the Act and regulations.
A work-seeker who is to provide Services may ‘Opt Out’ of the regulations by notifying the Agency, before introduction or provision of Services to a Client.
To comply with the Act and regulations, a Service Provider must give notice that they ‘Opt Out’ prior to an introduction to the Client for the provision of Services.
For useful information for Freelance Contractors visit: http://www.pcg.org.uk/agency-regulations
I wish to ‘Opt Out’ of the Conduct regulations: YES NO
(Please circle as appropriate)
I confirm that the details provided herein are accurate and complete.
Service Provider Name:
Hi JCB, Sorry for the delayed reply. RE the clause you point out 7.4 Would they have an argument in saying that me the service provider had a responsibility to ensure that “no conflict of interest arises” and that by having taken work via another agency working for the same company that I did not ensure no conflict of interest?
When I asked the agency to point me to exactly which clause I have been in breach of they have replied with:
I draw you attention to Clause 7 of your contract with us. As you are aware, you negotiated and signed another contract (via a third party) for follow on work with our Client, to whom you were currently on contract through us. You then tried to withhold this breach of contract from us, until our Client informed us.
‘7 Protection of Agency’s Business
7.1 The Service Provider will inform the Agency immediately it becomes aware if, within 6 months following the later of (i) introduction by the Agency to the Client, and (ii) the end of the most recent Service Period, the Client (other than through the Agency) makes an offer of employment or engagement direct to any person introduced or who has provided Services on the Service Provider’s behalf.’
The statement I have made is; You will of course be aware, that under the terms of our contract which you breached, we may be entitled to claim for damages.
For your information, we are not in receipt of full payment for your services from our Client, under the contract which you breached.
They keep acusing me of having breached the contract but have no evidence of this. Is this even allowed? They state that I negotiated and signed another contract with a different agency whilst on contract through them. Does this have any relevance? Infact what happened is I negotiated and signed a contract after I had left the ship from the first contract on my way home. Therefore is this still under the same contract like they say?
With regards to payment under the contract which I signed with agency 1 are they not responsible for ensuring my pay is on time regardless of weather the company has paid them in full anyway? As far as I am aware I signed a contract with the agency not the company, meaning this is there obligation?
What would you suggest would be my next action I have not yet sent them an email with your previouse suggestion as I wanted to run this by you first.
I would love to post all about this over social media but could I then find myself in trouble? However if I make sure that I only state the facts of the matter would this be safe and also encourage them to pay up so as to not damage their image?
Look forward to your reply and I will of course ensure you are credited for your time.
Hi JGM, thanks for your response. Agency 1 had offered me an extension to the first contract with the same company but i declined because i had already agreed to work on another job with a different company through a different agency (but that fell through at which point i took work with agency 2 with the company i had worked for previously through agency 1 imediatly after) does this effect me in the fact that agency 1 had offered me more work with the same company i had taken work with through agency 2?