WORKING for McGinley - taking them to court!

[steveafa]

Hi folks,

having really bad experience with McGinley not getting paid our slaries as the airline went to bankruptcy protection and McGinley has not put the claim and our salaries will never ever be claimed by the judge.
whole case is over 2 years old but lately we received complete list and me and my colleagues are not on it

Any experience taking them to the court or any labour lawyer contact?

[Southpole]

Sorry to hear that, some brokers in the last years are really behaving in a non professional way... I remember when parc aviation use to be the best, now just sits in the middle of these sort of brokers.. thieves. You did the right thing in taking them to court.
But no, I fortunately had no experience (and I will never have) with them.

[BARKINGMAD]

UK has an Act dated 2003 which I believe says if you're a contractor, even if the airline goes down, the agency, through whom you are employed and paid, must still shell out what's owed.


A little time on your search engine should reveal chapter and verse on the law and its provisions.

[steveafa]

thank you for the info

McGinley is actually the worst contractor I have ever been with and so far I have seen and they did nothing to get the money from the airline.

JUST for your fun they were sending to the Italian court letters in ENGLISH guess where they ended?

Spoke to few friends of mine and we use the same lawyer as UK BALPA.

If anyone else has some good info to share please do it or PM me.

thanks

Steve

[PBY]

I have never worked for Mcguinley, but they seem to be very unprofessional even before you work for them. They do not even tell you proper details of the contract before the interview, unless you ask them. I was also surprised by their lack of interest to speed things up. Seem to me, that they could be a hindrance to being hired as opposed to being a help. Not impressed by their communication either. Slow to answer and the content is not clear.
It seems to me the other contractor I dealt with really tried hard to help me.
But it might depend on the person you deal with.

[Phileas Fogg]

I previously worked for the predecessor of McGinley, the 'Storm' predecessor, indeed I became in charge of flight crew recruitment for Storm and as you mention 'Italy' I have a feeling I know of the 'BPA' airline, as a rule of thumb all Italian airlines are slow payers and I have personal experience of BPA's beancounters late paying and needing to be, frequently, shouted at.

As I recall the agency work on about a 15% margin of the individual's salary, i.e. if the contractor is getting 10k per month then the airline is paying the agency 11.5k of which the agency take 1.5k.

Please read your contract thoroughly, I don't recall it ever being written in to a contract that the airline needs to pay before you get paid, moreso it was contracted that you shall be paid on X day of the month with no mention of the airline needing to cough up the dosh first, you work for the agency, should the airline not pay then that is the agency's problem, not yours.

But, invariably, it doesn't work like that, working on a 15% margin the agency needs to be paid for seven months to support you by just one month and should they pay you before they have been paid themselves that is a sure fire way to go bankrupt.

If you are an England & Wales national then 'Money Claim Online' might assist, it is the County Court of England & Wales, often referred to as the Small Claims Court, I'm currently suing eBay thru it, OK it's not an employment tribunal but then McG don't employ you as an employee do they, they owe you a debt so I would recommend investigating if Money Claim Online might be of assistance to you.

[Direct Bondi]

We can but hope that one day the “aviation authorities” will come to their collective senses and ban the use of third-party agencies to source flight crew. Until then, faced with “employment” or unemployment, pilots will continue to willingly sign their rights away. Some may not even have read their agency contract and be aware of the forfeiture of basic employment rights normally granted in a direct employment relationship with the airline.

Agency contracts usually contain a clause stating the contractor has no employment relationship (rights) with the client airline. Most, if not all, also contain a clause indemnifying the agency from any responsibility due to action by their client airline. Additionally, a clause states the choice of legal forum in any dispute, which may not be in the home country of the crew, agency or airline. The EU Rome Convention, Article 3, Contracts, states; “the choice of law shall be governed by the parties”. Article 6 refers specifically to Employment Contracts and states; “In the absence of choice the contract shall be governed by the law of the country in which the employee habitually carries out the work” (your base) – again, only applicable in the absence of choice.

I doubt McGinley is different from any other agency. Agencies supplying Norwegian Air Shuttle and Norwegian Long Haul have also included the above circumvention loopholes in contracts.

The EU Aviation Commissioner, Violeta Bulc, rather than write letters to the US Government threatening possible trade sanctions if Norwegian should not be granted a US permit, would make better use of her time if she were to examine the use of agencies to circumvent employment laws, employer responsibilities, labor rights and principles, and the combined adverse affects on aviation safety.

Convention 181, Article 2.4 (a) of the International Labor Organization provides that:

“A member [country] may prohibit under specific circumstances, private employment agencies from operating in respect of certain categories of workers or certain branches of economic activity”

[ZAV]

That is the difference between some agency and other. McGinley/Brookfied 0 hours or self employment contracts offer no protection as there is no employer/employee relationship. However agencies who act as an Employer have a legal obligation to pay you even if their Client airline goes capput. So if going down the agency route chose carefully I suggested as they are not all bad.

[RAT 5]

That is the difference between some agency and other. 0 hours or self employment contracts offer no protection as there is no employer/employee relationship. However agencies who act as an Employer have a legal obligation to pay you even if their Client airline goes capput.

All the more reason for crews to get their TRUE status sorted out PDQ, and end the self-employment 'grey area'.

[xollob]

Some great information in the posts above about being easy to demonstrate you are not an employee and this is just a debt that has fallen due. Personally I would be inclined to write to them (agency)with recorded deliveries advising them they are overdue and have x days to pay in accordance with the terms of the contracts dated xx/yy/zz, if payment s is not made by certain date you will commence legal proceedings against the agency for unpaid debts.

You will probably get some BS response, but at least you have given them a chance, after BS response a second letter advising this is their final warning and they now have 7 days to pay otherwise the following claim will be filed With the courts. The. You could send a copy of the claim that will be filed with the money claim service, they will know you're serious then.

If you didn't have your money in that date then submit the claim online site mentioned above). I would suggest you make sure the claim is below the small claims court threshold of £10,000 GBP (https://www.citizensadvice.org.uk/law-and-rights/legal-system/taking-legal-action/small-claims/) so your claim can be assigned to the small claims track, what this means if you lose you're not liable for their legal costs (in most cases). Otherwise any other track and you would be liable for costs if you lose. If you have over £10,000 due e.g. Maybe 2 or 3 unpaid invoices I would be inclined to pursue one at a time to keep below the £10,000 limit.

Small claims court is relatively simple and you can represent yourself, you sit in a room with the judge and the party you're pursing and it's very relaxed, no court room dramas.

I'd simply draft a statement of facts, you worked through the agency from xx/yy/zz as demonstrated in your contract (exhibit/appendix 1).
The contract (exhibit 1/appendix1) clearly states the terms of the services you will supply for payment.
Exhibit/appendix 2is a copy of your work roster and confirmation of the completed work.
Exhibit/appendix 3 is a copy of previous periods of work you completed and your invoices were adequately paid (shows this is how it works and they paid historically) - don't need this but helps paint a clear picture.
In general I'd draw fact to the point that exhibit/appendix 1 makes it very clear what the terms of payment are, that you're not an employee ( as there is probably a term that says at no point are you an employee) etc

All of the above assumes there is no term in the contract for services that says the agency had to be paid for you to be paid ?

Your claim will also be for interest too on the amount claimed - http://www.compactlaw.co.uk/free-legal-information/small-claims-court/claiming-interest.html

Remember the small claims limit if adding interest, keep it below this.

If you can't keep below the limit, perhaps a group claim, if there are several of you in the same boat filing the claim again the agency not paying you, it will get allocated to a different court track, but you can all split the costs, if you win the other side side pays anyway.

I haven't got Legal training or qualification etc and is is just what I would do personally, I have represented myself in small claims historically and been through non small claims process too, I would choose small claims every time just to keep the process quick and cheap and easy.

If you win you can then demand payment, if they won't pay you take notice of your win to a judge by filling in a form and asking for a variety of enforcement methods, my chosen one was asking the judge to freeze the accounts of the business I was suing - you simply get the bank details the judge signs the order and it is served on the bank, eh voila the business can't do anything. There are a number of ways to get a firms bank details for the paperwork. This wil probably ruin their day and result in payment very quickly (list all their accounts on the order form).

Another thing I have learnt is when suing people someone may be thinking of folding the company and starting as someone else to avoid payment even if you win. A way to avoid this is to ask for the amout disputed to be paid into court, this means the defendant (if the judge agrees) has to pay the amount claimed or part of, into court so if they do decide to go bankrupt, liquidate etc, your money is sat pending payment to you if you win.

Good luck and I hope you get what is rightfully yours. It's been a few years since I was at small claims (2 years) I'm sure the process hasnt changed that much, it's good fun too and a lovely feeling when you win

Maybe a free half hour with a solicitor would be worth it, but also your home legal assistance cover might cover it too if you have the add on as part of home insurance (depending on the policy/exclusions).

p.s. Enclose copies of all previous comms with the company in your court paperwork/exhibits/appendices to show you have tried all things reasonable to get your money, also add in your comms to the agency you will only deal with them in writing from now on.

Pps - sorry if all the above sounds like teaching suck eggs etc.