Child Care Agreement

A Child Care Service Agreement is a document used by two parties where a child care provider agrees to care for a family's children and the family agrees to pay the provider for these services. This Agreement allows the provider and the family to outline the scope of their relationship and describe the specifics of the child care services that will be provided. The document can be prepared both by families who wish to hire a child care provider as well as by child care providers who wish to provide their services to a family.

It may be used by individual people who are offering their services as child care providers (for example, as a sole trader). It may also be used by larger businesses such as child care companies that have a number of different people on their books to provide child care services.

Importantly, this agreement is for child care providers who are operating as contractors. It is not appropriate for child care providers who are being employed by the family. For employment situations, consider using our Employment Agreement or our Letter of Offer of Employment.

Often, individuals enter into business relationships without having all the details of the parties' relationship written down. By discussing the specifics of the Agreement ahead of time, both the family and child care provider can make sure that the relationship is set up in a manner that suits their requirements.

This document includes a basic confidentiality clause. However, if the family is concerned about protecting their private life then they may also wish to prepare a separate Confidentiality Agreement which deals with confidentiality in much more detail.

Contractor v Employee

People or businesses using this document may need to consider the differences between a contractor and an employee. These differences are discussed in detail in our legal guide What's the Difference Between an Employee and an Independent Contractor?

This Child Care Service Agreement enables a child care provider to be hired as a contractor. This is different from an employment contract, which would enable the child care provider to be hired as an employee.

The difference between an employee and a contractor is based on many factors, and no single factor is determinative. Simply using this Child Care Service Agreement is not enough to convert an employee into a contractor. Instead, the courts will look at the entire arrangement, and decide whether the child care provider is working within the business, as part of the business (like an employee) or whether the child care provider is running their own business (like a contractor). Some common considerations include:

• whether the worker can subcontract/delegate the work;
• whether the worker provides their own tools and equipment;
• whether the worker is paid for the time worked, or based on a quote for the result achieved (eg a quote for the painting of a room);
• the amount of control that the worker has - whether the worker can choose their own hours or location of work, and what sort of control the business has over how the work is performed;
• who is responsible for mistakes in the work - whether the worker has to rectify mistakes at the worker's own cost, or whether the business is responsible for any mistakes in the work;
• It is against the law for a business to incorrectly treat a worker as a contractor when they should be treated as an employee. In doing this, the business will be neglecting its various obligations such as payment of superannuation and employee entitlements. There can be significant penalties associated with this.

Further information is available through the Australian Taxation Office, the Fair Work Ombudsman or business.gov.au. Please also see the "Applicable Law" section below, and consider getting legal advice if further information is required.

If the child care provider is going to be hired as an employee rather than as a contractor, then the parties should consider using our Employment Agreement or our Letter of Offer of Employment.

How to use this document

This document covers all of the pertinent information necessary for a child care provider and a family to enter into a business relationship with each other, including the following details:

• Names and ages of all of the children who will be cared for by the provider;
• Hours and dates that the provider will be providing the child care services;
• Amount of compensation the provider will receive, and how frequently the provider will issue invoices;
• Responsibilities that the provider must meet while caring for the children;
• Situations in which the Agreement can be terminated by either party.

Prepare the document by adding all of the relevant information when prompted. Both parties should sign the completed document, and keep a copy of it for their records.

Applicable law

Child care services are the subject of both federal and state/territory laws. Further information is available from the Australian Children's Education & Care Quality Authority. Depending on the nature of the child care services that are being provided, the child care provider may be required to obtain various licences, qualifications and insurance. If in doubt, seek legal advice.

The Fair Work Act 2009 deals with the question of whether a worker is a contractor or an employee. Further information is also available via the website of the Fair Work Ombudsman.

The Independent Contractors Act 2006 deals with independent contractors. It deals with issues such as unfair contract terms.

If child care providers are providing services directly to the public, then the Australian Consumer Law may also be relevant.

In addition, general principles of contract law, as provided by the common law, will also apply.

How to modify the template

You fill out a form. The document is created before your eyes as you respond to the questions.

At the end, you receive it in Word and PDF formats. You can modify it and reuse it.