atw: Re: Urgent: ITEA for a short-term contract?

Stuart,

I've not seen an ITEA but my thoughts as follows.  It seems they have =20
probably used a standard form contract that is not really suitable for =20
your purposes.  You should be able to negotiate this.  Every time I =20
have been confronted with a contract with clauses I don't like I =20
suggest they be removed and this has occured.  Generally, the agency =20
person doesn't understand the clause either.  Often they just pick the =20
wrong standard form contract and think it doesn't matter.  I suspect =20
it can matter, so follow your instinct.  Ask them to remove clauses =20
you're uncomforatable with, or at the very least explain/justify them =20
to you in writing (note, the "in writing" is important). Don't just =20
accept an "oh it doesn't really matter etc etc" or "that just means =20
xyz".  Have them clearly justify the clause. They'll probably just =20
scratch it out when asked to do this(!)

But beyond that:

> - I'm employed by the agency on a casual basis. Not sure what the=3D20
> implications of this are. It does say that casuals are employed on a=3D20
> 'needs basis'???.

1. This wouldn't concern me: pretty standard form really, you're =20
employed by the agency on a casual basis.  The 'needs basis' is the =20
current agreement/deal with FBC.  Just means the agency has no =20
additional commitment to employ you beyond the FBC gig- no surprises =20
there.

>
> - It also says I agree to remain as a casual contractor, contrary to any
>
> provision contained in an Award (???),

2. ditto really - means you won't try and say I should be on an Award. =20
THis is more applicable if you were an employee of FBC (or I suppose =20
the agency) on a long term/ongoing basis. I would guess your rate =20
would beat any award anyway.  Probably not appropriate for what you're =20
doing (It should be cratched) but I wouldn't worry about it too much.

> but the agency can convert me to=3D20
> part-time or full-time at their discretion.
>

3. Anything that gives you no discretion and the other party some =20
discretion should prick your ears.  I wouldn't sign this clause, ask =20
for it to be removed.


> - The agency can employ me on one more assignments, including with other
>
> clients than FBC. Don't like the sound of this. I want to finish this=3D20
> contract then look for the next one under my own steam.
>
4. I agree, same really as comment 3 above: you have no discretion, =20
they have some, get it removed.

> - Termination of an Assignment doesn't terminate my employment by the=3D20
> agency. That is, when I finish my work for FBC I'm still employed by
> agency.

5. Not really appropriate.  hard to see a real negative, but no need =20
for its inclusion, give it the flick.

>
> - I have to indemnify the agency for any loss they may incur because of=3D=
20
> loss or damage I cause to the FBC or their customers. Isn't this what PI
>
> and PL are for?

6. I have seen these types of clauses before (and had them scratched). =20
  I would not sign it.  Your reasoning is correct in my opinion.  What =20
is the point of using an agency otherwise?


>
> - The 'nominal expiry date' is 31 Dec 2009. This is a standard feature=3D2=
0
> of ITEAs, not something the agency cooked up, but I still don't=3D20
> understand what it means. There's an elaborate termination procedure=3D20
> around the expiry date that involves two letters and declaration form=3D20
> separated by a 14-day notice period.

7. notice periods should apply both ways in my opinion.  If they want =20
to terminate you with zero notice, you should'ne be obliged to give =20
them any more than zero notice either.  the reality of most contracts =20
I have had is its basically no better than a one hour contract.  =20
That's fine by me, but I wouldn't sign something saying I'll give you =20
14 days notice and you give me 1 hour's notice in return.  Get them to =20
explain this clause and its application.  If in doubt, have it =20
scratched.


Quoting Stuart Burnfield <slb@xxxxxxxxxxxxxx>:

> Hi all -
>
> I went in to an agency today to do the paperwork for a job that's due to
> start next week. As always, I expected to spend some time going through
> the contract looking for tricks, traps, contradictions, errors, etc.
> However, this contract is an ITEA, something I haven't come across
> before. There's a lot about it that makes me uneasy, and I wanted to
> check with you all to see if anyone's come across it yet.
>
> The job is a 4-month contract with an FBC (Fairly Big Company). I
> expected to be employed by the agency on a PAYE basis and farmed out to
> the FBC for the fixed term of the contract. (I submit timesheets to the
> agency, they cover PI and PL insurance, and so on.)
>
> An ITEA (Individual Transitional Employment Agreement) is a sort of "son
> of AWA", brought in by the new government. This contract says:
>
> - I'm employed by the agency on a casual basis. Not sure what the
> implications of this are. It does say that casuals are employed on a
> 'needs basis'???.
>
> - It also says I agree to remain as a casual contractor, contrary to any
> provision contained in an Award (???), but the agency can convert me to
> part-time or full-time at their discretion.
>
> - The agency can employ me on one more assignments, including with other
> clients than FBC. Don't like the sound of this. I want to finish this
> contract then look for the next one under my own steam.
>
> - Termination of an Assignment doesn't terminate my employment by the
> agency. That is, when I finish my work for FBC I'm still employed by agenc=
y.
>
> - I have to indemnify the agency for any loss they may incur because of
> loss or damage I cause to the FBC or their customers. Isn't this what PI
> and PL are for?
>
> - The 'nominal expiry date' is 31 Dec 2009. This is a standard feature
> of ITEAs, not something the agency cooked up, but I still don't
> understand what it means. There's an elaborate termination procedure
> around the expiry date that involves two letters and declaration form
> separated by a 14-day notice period.
>
> There are a few other problems but they're the standard things you
> expect to find in a contract. It's the arrangements above that make me
> nervous. I'm seeing the recruiter tomorrow to go through these points,
> but I'm pretty uneasy about signing this. It's one thing to haggle over
> details, another to take something that's wrong and try to change it
> point by point to make it look like the right thing.
>
> Has anyone come across these ITEAs and has any advice?
>
> Regards and thanks for your time if you've made it this far.
>
> Stuart
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