How to Build a Fail-Proof School Enrolment ContractMarch 16, 2021
Allow us to introduce you to Ben Foley, Special Counsel, Education, and Workplace Law. Ben is a rare gem in his industry, bringing not only a strong legal background but 10 years of Executive experience at a top-notch Queensland GPS school. Ben’s ‘hands-on’ experience within the education sector means that he has a deep understanding of the issues that can arise between schools, families, and other key stakeholders, and of course, how they should be managed.
You’re going to see Ben’s face on the Digistorm Blog as we dive into various legal issues schools face and get his advice on how to best tackle them. A quick disclaimer! This is not legal advice. Please ensure that you obtain legal advice before relying on any of the information contained in this post.
Would you spend upwards of $150,000 without a sturdy legal document in place? We didn’t think so! So why would a school Enrolment Contract be any different? When handing over sizeable amounts of money, you would expect to see highly detailed terms and conditions in place, however, school Enrolment Contracts can sometimes tend to be a little light on these details. It’s not unusual to see this in schools and often reflects the warm and trusting relationship schools have with their families, which over time makes its way into formal documentation.
It’s no secret that schools are complex businesses, encompassing a unique blend of student, parent, and staff bodies. Add into the mix the high emotional investment that comes with choosing the right education for a child, and you have the recipe for some passionate exchanges. But when the stakes are high, passionate exchanges can lead to litigation and it’s times like these that a fail-proof Enrolment Contract comes in handy.
So just what should your school’s Enrolment Contract cover? Let’s take a deeper look…
Is it one contract, or a series of contracts?
If you’re not sure just what the contract actually entails, you’re not alone. However, a recent decision of the Supreme Court of South Australia has helped shed some light by showing how the language used within an Enrolment Contract tended to indicate that there was a series of contracts over several years with each requiring acceptance to be enforceable, rather than one continuing contract from the day their child started school.
What does this mean for schools? In this case, there were significant implications surrounding the school’s ability to recover unpaid fees, so ruling out contract ambiguity about the start and end of your Enrolment Contract is key.
On setting policies...
Policies are a great way to establish your school’s position on significant issues and showcase your commitment to diversity. A few common policies to consider including in your Enrolment Contract might include:
- Transgender and Anti-Discrimination
- Sexual Harassment
In terms of best practice, your school’s Enrolment Contract should be the go-to place for families to rely on for key information should any of these issues arise, and assure students that they’ll be welcome and included in your school community.
Student information and documentation
Keeping with the topic of diversity, many schools pride themselves on ensuring that students with special needs receive equal access and opportunities in education as others. This means that your school’s Enrolment Contract should outline a carefully worded provision to help gather all of the information and documentation that’ll help your school to consult with the family and map out reasonable adjustments for their child.
Similarly, separated or non-traditional families often come with additional information and documentation. Elements such as court orders or parenting plans often require schools to complete tasks or set obligations for parents. Again, in these circumstances, a carefully worded provision to gather all relevant documents is key. It’s important to note that separated family provisions should also clearly map out how the school will make decisions in situations where it can only make contact with one parent.
Penalties or pre-estimate of loss
When a parent withdraws their child from school without providing sufficient notice or is late to pay school fees, your school may require a sum of money to be paid. Depending on how your Enrolment Contract is worded, these may be considered ‘penalties.’ Here’s the problem with penalties, however, they’re often void and unenforceable.
The good news is that a genuine pre-estimate of loss is lawful, provided that it’s worded correctly in your Enrolment Contract. It’s best to ensure that any clause that’s punitive in nature be drafted to include a sum for your pre-estimation of loss and that you show you’ve taken steps to estimate how that loss has been calculated.
What about changing your conditions?
Under Australian Consumer Law, your school’s Enrolment Contract is known as a ‘consumer contract’ and falls under the category of ‘standard form contract.’ What this means is that the contract has been prepared by one party (your school) and the other party (the family) has little or no opportunity to negotiate the terms. Enrolment Contracts should have a provision that allows schools to add or vary their terms and conditions because, as we all know, circumstances can change. These are known as ‘unilateral variation clauses’ that give schools the ability to vary the contract.
Quick tip! Variation clauses may be deemed unfair under the Australian Consumer Law if they’re poorly written. Here are a few tips on how variation clauses should be drafted:
- the ‘rights’ being varied may only be exercised to reasonably protect the legitimate business interests of the school;
- they provide a sufficient notice period - the greater the impact on the families, the greater the notice;
- the family has the right to terminate the contract (that is, withdraw their child) without being charged if the variation clause is exercised.
We’ve only touched on a few of the many issues your Enrolment Contract should cover in this post, so stay tuned for our next edition where we deep-dive into some of these topics. If you have any questions about your Enrolment Contract, feel free to contact the team at Clifford Gouldson Lawyers.