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When an RMA resigns, what happens to the clients?
I used the word 'the' clients in my heading for a reason, and not the word 'their' clients. Read on to find out why.
I have recently had a migration agent resign. No problems with that so far. The agent has been with my business since 2003 and has decided to move on.
Here's the issue.
The agent has about 200 clients lodged via his ImmiAccount and that ImmiAccount is set up under his MARN. The password to ImmiAccount is set by the same agent.
Issues arising:
1. The Code of Conduct requires the RMA to sign a Form 956 with their client when lodging a sponsorship, nomination or visa application on their behalf
2. The Code of Conduct requires that the monies associated with the RMAs clients to drop into a Clients' Account. In this case, the RMA is not in control of the Clients' Account as the RMA is an employee of the business.
3. I am the owner of a business and also an RMA. I have access to the mandatory Clients' Account (see 7.1 of the Code of Conduct), but my employed RMAs do not.
4. Under Part 8.1 of the Code of Conduct, as the owner of the business and responsible for the effective control of my office /employees.
I believe the Code of Conduct is in conflict with itself.
OMARA's response to my departing agent was something along these lines:
"If you are comfortable with another agent in the business taking over your files, obtain a 956 from the clients and have them sign the 956 for another agent".
My departing RMA has validly questioned:
"What if an agent is not comfortable with another agent in the business? What if there is no other agent in the business and the owner of the business is not an RMA, but the client monies are in the clients' account for the work to be performed?"
My personal view is that all companies in Australia offering immigration advice or assistance MUST be operated by a RMA. There should not be a situation where a person (non-RMA) can set up an Australian immigration agency and employ RMAs, but at the same time, not give the RMAs control of the client monies. If an agent resigns from such a company, then the clients are left with their money in a clients account and no RMA to service their file as the company is operated by a non-RMA.
I also believe that ImmiAccount should have a Company Director-RMA override/access function for immediate take-over once an employed RMA leaves the company, so that ongoing clients, who have paid the business money to look after their cases, can continue to work for the money that has been paid.
What about the case where an RMA resigns from a migration agency, has 150 clients who have paid for services, and decides not to pursue a career as an agent any more, and decides not to re-register?
What about employed RMAs who are sick or unable to look after their clients? What if the agent can't get Form 956s to all of their clients for health or emergency reasons?
What if the clients don't agree to transfer to another agent in the business?
What if the agent has resigned, the clients just continue to be serviced by anyone, including other agents in the business, and then there is a complaint by a client to the Office of the MARA? Who is the RMA responsible for the client now?
I think there is a black hole here in Code of Conduct. The more I read the Code today, the more confused I become about what happens to clients of resigning RMAs.
Are there any RMAs out there with any ideas about how to manage this?
I have spoken to a few RMA lawyers about this and we are all now scratching our heads. Such a common issue basically has no precedent attached.
Comments
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Thursday, 02 February 2017I agree. Use the immi account if the controlling agent or business. In the immi account you can grant access to ither agents and you can allocate client foles to a specific agent
This way the business with the client retains contol over the account
To stop the ither issues the client agreement needs to have clauses that allow to change to another agent of the company in all those circumstances including illness, resignation or removel, death and any other situation where the controlling company could lose control
The client should agree with this in the contract for services -
Tuesday, 31 January 2017
A lawyer - what happens if the 'head agent' on the 956 has never spoken to the client? Isn't that a bit dodgy / misleading? I mean, it is a good workaround, but wouldn't the OMARA go nuts if there was a complaint? Arrrgh!
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Friday, 03 February 2017
Nice picture Liana ... And that dress is beautiful! It really suits you.
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Tuesday, 31 January 2017
If you have a decent practice management system (that has been used properly) then any RMA worth his salt should be able to review outstanding matters to get up to speed on a matter. I would also expect the departing RMA to provide a brief summary of any outstanding matters. This happens all the time in law firms.
Only an issue for active matters - departing agent to notify client that they are leaving and that X is taking carriage of the matter. If client wants to appoint someone else thats up to them.· Jing Zhou likes this comment. -
Tuesday, 31 January 2017
I think the principal migration agent needs to put down her / his name on all 956 forms together with responsible migration agent .. ( Even you can attach an extra page to 956 if there are several agents working in your business ). You may include into your contract that there may be another agent representing the visa matter when signing the contract with client
Also there is a possibility to import the application to your own immiaccount.· Alan-Collett likes this comment. -
Tuesday, 31 January 2017
Is RMA have access to all information i.e. even a client update new address in client immiaccount? Actually I am on 457 visa and I want to update my new address to DiIBP but I don't want my agent to know about same. Please guide
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Wednesday, 01 February 2017
I suggest if you do not want your agent to know about your change of address it means you have no trust in your agent and you should take over the case yourself and sign it under your own name
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Wednesday, 01 February 2017
Good question but what about when the agent is the sole trader/owner. Can he/she simply walk away?
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Wednesday, 01 February 2017
I will be soon facing a similar situation; in my case will be with Vetassess. The agent account with them is under my MARN and the password set by me. I was subcontracting for someone else and the skills assessment applications are there.
Are they my clients or theirs? In my opinion the clients are the companie's but once I change the password, the company won't have access to them and, for obvious reasons, I won't be giving authorisation to use my account and MARN if I don't work there anymore.
I am planning on contacting Vetassess to figure this out, but I think these cases show us that there are some gray areas out there. -
Wednesday, 01 February 2017
So now we have a situation where people are advising one agent, the head agent, to lodge everything under their name. How is that agent supposed to review all the applications? If another agent is dealing with the client, and then puts the head agent's MARN on the applicatino, that's a lie. The head agent is not the actual agent dealing with the client or offering the advice. What happens if the DIBP rings the head agent? They don't know anything about the file or the client. That's negligence. It's not ok to pretend to be the agent when you are not, for the sake of control of the files. Surely!
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Wednesday, 01 February 2017
Does anyone actually know, based on the part of the Code of Conduct, or the law, quoting the law, the answers to these things? It's pretty important stuff given that we are dealing with people's lives. I am an agent and I am not even remotely clear on the right answers here.
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Wednesday, 01 February 2017
I think someone should show MARA this as if agents are not clear then this is not good. It should be clear in the Code of Conduct and set out in law. I just had a look and there is no definition of 'client' in the Migration Act. It is just getting worse. How are we supposed to know how to comply if there are not clear goalposts?
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Wednesday, 01 February 2017
This is an interesting issue. Great photo by the way. I wish my ugly stick would let me take such selfies. I own an immigration practice and although I am not an RMA I employ 2 of them. There is a level of trust involved but I have protected myself if an RMA decides to go on his own and take the firms clients with him. However there is not much I can do if I were to loose both my employees as I cannot act for a client. It seems MARA has taken the same point of view as the Immigration New Zealand and that is Immigration business should not get to large and if you do you will face some major obstacles as everything is planned on the assumption that you are going to be a sole trader working from home. The fact that the majority of Migration agents operate as sole practitioners could be the reason why MARA has not made it a priority to make things easier for us bigger fish in this small pond.
As for your agent who has been in it since 2003 I have found this to be a new phenomenon as well. Many agents have come and gone in the past but the older crew (10 years + of experience) are exiting the business in droves. I wonder if this is a sign for that the future is foreboding? -
Wednesday, 01 February 2017
I am the other type of agent. I am about to leave my employer and my clients are MY CLIENTS and they are on MY IMMIACCOUNT and I am not giving my employer MY PASSWORD. Good luck trying to get the DIBP to allow the company to hand them over to my employer when I leave.
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Wednesday, 01 February 2017
Best you check your contract to be doubly sure you aren't storing up problems for yourself ...
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Wednesday, 01 February 2017
There would appear to be a master-servant relationship with your Employer which is in conflict here.
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Wednesday, 01 February 2017
"I am about to leave my employer and my clients are MY CLIENTS"
Are you trying to STEAL from your employer? Is it criminal intent? How come those clients ARE your Clients still, after you have left, but not your former clients, or they were your clients? -
Wednesday, 01 February 2017
Interesting questions. I am one of the small practitioners (although using a Pty Ltd company) but think the Code is way out of date with respect to interactions between clients and agents.
Another question I would put is, if the agent leaves, and there is later a major error discovered which led to financial loss for a client, whose PI covers this? Should the agent in charge of the file be personally liable even if the client contract is with the company (since the appointment of an agent is a 'personal' appointment)?
MARA just needs to allow bodies corporate to be registered as agents (perhaps with the provisio that, to be valid, at least one company director must be personally registered as an agent). -
Wednesday, 01 February 2017
Hi,
I would define the our client vs the company's client discussion as such.
The one who has legal responsibility and can Ben penalised by MARA is
The one who owns the company. The other question that I have is how did the non rma company
Manage to open a trust account? I asked Banks and they allow only lawyers to
Open trust accounts... did I miss something?
The only was to solve this is have the clients sign a 956 ending appointment and a 956 new appointment form and move on in life.
Immigration blog
Best to lodge all applications through "the head agent'' e.g. business owner RMA immiaccount to avoid this issue. Costs agreement should be with the firm not the individual agent, appointing head RMA as the agent (and with individual agent assisting). We also operate a law firm where it is the norm that clients are seen as the firms clients not the individual lawyers. Unfortunately DIBP and AAT have no mechanism to see it this way (other than adding second agent to 956).
Maybe MA should take up the issue of "firm recognition" with DIBP and the AAT.
Even though apps are lodged through head agents immiaccount you can still specify the individual agent in the application form. Ensure 956 has head agent as the principal agent with individual agent (primarily dealing with the matter) as secondary.