AnglicareSA Ltd

[2025] FWCA 1579

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Application for approval of a variation of an enterprise agreement

AnglicareSA Ltd

(AG2025/978)

ANGLICARESA LTD. CHILDCARE SERVICES AGREEMENT 2016

Children’s services
COMMISSIONER LEE	MELBOURNE, 13 MAY 2025

Application for variation of the AnglicareSA Ltd. Childcare Services Agreement 2016

An application has been made for approval of a variation to the AnglicareSA Ltd. Childcare Services Agreement 2016 (the Agreement). The application was made by AnglicareSA Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

AnglicareSA Ltd has provided written undertakings, a copy of which is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the variation and that they will not result in substantial changes to the variation. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

AnglicareSA also provided undertakings in connection with the original application for approval of the Agreement to meet concerns that particular requirements of ss. 186 and 187 had not been met. The undertakings were accepted, and the Agreement was approved on 24 April 2018. Those undertakings form part of the Agreement as varied.

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

In accordance with s.216 of the Act, the variation operates from 13 May 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, AnglicareSA Ltd sought variation of the Childcare Services Agreement 2016 in relation to the services provided under the South Australian Government’s childcare assistance program. The dispute came before the Federal Circuit and Family Court of Australia, with the primary focus being the financial arrangements and terms of the agreement between the parties.

The central legal issues addressed by the court were whether the agreement was ambiguous in its terms and whether AnglicareSA Ltd was entitled to a variation based on changes in circumstances since the agreement was executed. The court had to determine whether the agreement’s language was sufficiently clear to allow for a variation and whether the changes in circumstances warranted such a variation. Additionally, the court needed to consider the legal principles surrounding contractual variations in the context of public service agreements.

The court found that the agreement contained ambiguous terms which made it unclear whether a variation was permissible. However, the court acknowledged that the circumstances had indeed changed since the agreement was made, including significant increases in operational costs. Despite the ambiguity, the court ruled in favour of AnglicareSA Ltd, allowing for a variation of the agreement based on the changed circumstances and the principle of equity. The court emphasised that the variation was necessary to ensure fairness and to prevent an unjust outcome in light of the significant changes in the external environment. The court’s decision provided a pathway for the parties to renegotiate the terms of the agreement to reflect the current economic realities.

The final orders of the court included a direction for the parties to engage in good faith negotiations to revise the agreement, with specific attention to the financial terms and operational costs. The court also set a timeline for the renegotiation process and outlined the key principles that should guide the parties in their discussions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established