Cleaning, Security and Maintenance Contract Lawyers Adelaide: Service Agreements for Trade Businesses
Cleaning, security and maintenance contracts in South Australia
A service contract for cleaning, security or maintenance decides what standard the client is paying for and what happens when it is not met. Talon Legal drafts and reviews service agreements for Adelaide cleaning, security and maintenance businesses, and for the businesses and property managers that engage them. Book a same-day free 30-minute consultation or call (08) 7094 2021.
Cleaning, security and maintenance contract key facts
| Issue | Position in South Australia |
|---|---|
| Household clients | Due care and skill, fitness for a purpose the consumer makes known and supply within a reasonable time where none is fixed (ACL sections 60, 61(1) and 62). These guarantees cannot be excluded (section 64(1)). |
| Business clients | For services not ordinarily acquired for personal use, liability can be limited to supplying the services again or its cost, unless that is not fair or reasonable (section 64A). |
| Price reviews and renewals | The Court accepted that automatic renewal without notice, and price increases for any reason, created a significant imbalance (JJ Richards at [56](a) and (b)). |
| Security licence | A person must not carry on business, or otherwise act, as a security agent except as authorised by a licence (Security and Investigation Industry Act 1995 (SA) section 6(1)). |
| Building licence | Where maintenance is building work, a building work contractor must be licensed (Building Work Contractors Act 1995 (SA) section 6(1)). |
| No licence, no fee | A person required to be licensed is not entitled to a fee for the work unless licensed, or a court is satisfied the failure resulted from inadvertence only (section 6(2) of each Act). |
| Workforce | For Fair Work Act purposes, employee or contractor turns on the real substance, practical reality and true nature of the relationship (section 15AA). Payments under a relevant contract can be wages for payroll tax (Payroll Tax Act 2009 (SA) sections 32 and 35(1)). |
| First step | Same-day free 30-minute consultation. Call (08) 7094 2021. |
Need a cleaning contract lawyer in Adelaide?
Our cleaning contract lawyers in Adelaide act for commercial cleaners, security providers and maintenance contractors, and for the businesses and property managers that engage them. Licensing law sits alongside the contract: the Security and Investigation Industry Act 1995 (SA) for security agents, and the Building Work Contractors Act 1995 (SA) where maintenance is building work. This page states the law current to 6 November 2026.
This guide is part of our skilled trades and licensed industries practice. Related guides cover subcontractor agreements, terms of trade and retention of title and service agreements and terms of business.
Free Consultation. Send us your service agreement, or the contract a client wants you to sign. Book a same-day free 30-minute consultation or call (08) 7094 2021.
On this page
- What should a cleaning, security or maintenance agreement cover?
- How should site access, keys and alarms be handled?
- Who can do the work: staff or subcontractors?
- Does payroll tax apply to subcontractors?
- Which licences does the work need?
- Can the contractor raise prices or roll the contract over?
- Which consumer guarantees apply?
- How should liability and insurance be handled?
- How should the contract end?
- How similar matters tend to play out
- How we act on cleaning, security and maintenance agreements
- Case law
- Frequently asked questions
What should a cleaning, security or maintenance agreement cover?
A schedule that an outsider could check the work against. It lists the sites, the tasks, how often each is done, the standard expected and the hours of work. For security it sets posts, patrols, response times and reporting; for maintenance, the planned work, call-out times and what counts as extra work.
Service levels need a measure and a process, such as a standard for each area checked at an inspection, or incident reports within a set time. The agreement should say how complaints are made, how fast the contractor must respond and what follows if a failure recurs, such as a credit or a right to terminate.
A cleaning contract lawyer will also look for terms letting one side change the service alone. A term permitting one party to vary the characteristics of the services unilaterally is a statutory example of a term that may be unfair in a consumer or small business standard form contract (ACL section 25(g)).
How should site access, keys and alarms be handled?
In writing, before the first shift. Cleaners, guards and maintenance staff often work alone and out of hours, holding keys, swipe cards and alarm codes. The agreement should list what is issued and to whom, require a key register, and say how codes change when staff leave and who pays to re-key a site if keys are lost.
Clients often ask for police checks for anyone holding keys. In return, the contractor’s terms usually require safe access, disclosure of hazards and restrained animals.
On losses, the client will want the contractor responsible for loss its staff cause, and the contractor will want that limited to loss caused by its negligence or breach. For a household client, the services must be rendered with due care and skill (ACL section 60), and a term cannot exclude that guarantee (section 64(1)).
Who can do the work: staff or subcontractors?
Whoever the agreement allows. A client that cares who is on its premises should require its consent to subcontracting, and the same standards, checks and insurance from subcontractors.
The label in a subcontract does not decide whether the worker is an employee. For Fair Work Act purposes, that is determined by ascertaining the real substance, practical reality and true nature of the relationship (Fair Work Act 2009 (Cth) section 15AA(1)). The totality of the relationship must be considered, including how the contract is performed in practice (section 15AA(2)). Section 15AA commenced on 26 August 2024. A cleaner working set shifts on the contractor’s sites, in its uniform, looks like an employee whatever the paperwork says.
Sham contracting is prohibited. An employer must not represent to an individual it employs, or proposes to employ, that the contract of employment is a contract for services under which the individual works as an independent contractor (section 357(1)), unless it proves it reasonably believed the contract was a contract for services (section 357(2)). Regard must be had to the size and nature of the employer’s enterprise in deciding whether the belief was reasonable (section 357(3)). An employer also must not dismiss, or threaten to dismiss, an employee in order to engage them as an independent contractor to do the same or substantially the same work (section 358).
Does payroll tax apply to subcontractors?
It can, for a business that pays South Australian payroll tax. Under the Payroll Tax Act 2009 (SA), a relevant contract includes a contract under which a person, in the course of a business it carries on, supplies services to another person, or is supplied with the services of another person, for or in relation to the performance of work (section 32(1)). Amounts paid or payable by an employer during a financial year for or in relation to the performance of work relating to a relevant contract are taken to be wages paid or payable in that year (section 35(1)).
The exclusions, in summary (section 32(2)). A relevant contract does not include a contract of service, or a contract under which the business is supplied with services:
- ancillary to the supply of goods;
- of a kind it does not ordinarily require, performed by a person who ordinarily performs services of that kind to the public generally;
- of a kind ordinarily required for less than 180 days in a financial year;
- provided for not more than 90 days in aggregate in the financial year, subject to conditions;
- that the Commissioner is satisfied are performed by a person who ordinarily performs services of that kind to the public generally in that year;
- where the work is performed by two or more persons employed by, or providing services for, the contractor, with variants for partnerships and individuals; or
- for certain goods conveyance, insurance procurement and door to door sales services.
Year-round cleaning or guarding by one individual subcontractor is unlikely to fit the 180-day or 90-day exclusions. None of the exclusions applies if the Commissioner determines the contract was entered into with an intention, directly or indirectly, of avoiding or evading tax (section 32(2d)).
Which licences does the work need?
Security agents
A person must not carry on business, or otherwise act, as a security agent or investigation agent except as authorised by a licence (Security and Investigation Industry Act 1995 (SA) section 6(1)). The maximum penalty is $50,000 for a natural person and $250,000 for a body corporate. For a natural person’s third or later offence it is $50,000 or 12 months’ imprisonment, or both.
A person required to be licensed is not entitled to any fee or other consideration for functions performed in the business unless licensed, or a court is satisfied the failure resulted from inadvertence only (section 6(2)). Clients should check licences before signing and require them to be kept current, including by subcontractors.
Building work
Where maintenance work is building work under the Building Work Contractors Act 1995 (SA), a person must not carry on business as a building work contractor, or hold out as entitled to do so, except as authorised by a licence (section 6(1)). For a natural person, the maximum penalty is $100,000 for a first or second offence, and $150,000 or 12 months’ imprisonment, or both, for a third or later offence. For a body corporate it is $500,000 for a first or second offence and $550,000 for a third or later offence. The expiation fee is $5,000.
A contractor required to be licensed is not entitled to any fee, other consideration or compensation under or in relation to a contract for the work unless licensed, or a court is satisfied the failure resulted from inadvertence only (section 6(2)). The Commissioner may grant exemptions (section 6(3)). Whether a job is building work, and whether an exemption applies, should be settled before it is quoted.
Can the contractor raise prices or roll the contract over?
Only on terms that survive the unfair terms law. Renewal and price review clauses both need care.
A term of a standard form consumer or small business contract is void if it is unfair, and the contract continues if it can operate without it (ACL section 23(1) and (2)). A small business contract is one where at least one party employs fewer than 100 persons or had turnover under $10,000,000 in its last income year (section 23(4)). Only one party needs to meet that test, so a small contractor’s contracts with large clients can qualify. A contract is presumed to be standard form unless another party proves otherwise (section 27(1)).
A term is unfair if it would cause a significant imbalance in the parties’ rights and obligations, is not reasonably necessary to protect the legitimate interests of the party it advantages, and would cause detriment if relied on (section 24(1)). The Act’s examples include a term letting one party alone renew or not renew the contract, or vary the upfront price without the other having a right to terminate (section 25(e) and (f)).
In ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224, the Court accepted that two such terms created a significant imbalance. One renewed customers for a further equal term unless they cancelled within 30 days before the end, with no requirement to give notice of expiry ([56](a)). The other allowed price increases for any reason, with no right to terminate or to obtain a change of scope or a lower price ([56](b)). A price review with notice and a right to exit, and a renewal reminder, meet both points.
Unfair terms were then void but not penalised. Since 9 November 2023, making a standard form consumer or small business contract containing an unfair term the contractor proposed, or applying or relying on one, is a contravention, and each term counts separately (section 23(2A) to (2C)). The maximum penalty for a body corporate is the greater of $100,000,000 and three times the benefit or, if that cannot be determined, 30% of adjusted turnover during the breach turnover period. For anyone else it is $2,500,000 (section 224(3) and (3A)).
Which consumer guarantees apply?
The service guarantees, whenever the client is a consumer. A person acquires services as a consumer if the amount paid or payable did not exceed $100,000 (ACL section 3(3)(a); regulation 77A of the Competition and Consumer Regulations 2010), or if they are of a kind ordinarily acquired for personal, domestic or household use (section 3(3)(b)). Household cleaning and home maintenance clients will usually be consumers. The price test does not ask who the client is, so many business clients are consumers too.
The services must be rendered with due care and skill (section 60), be reasonably fit for any purpose the consumer makes known (section 61(1)), and be supplied within a reasonable time where none is fixed (section 62). A term is void to the extent it purports to exclude, restrict or modify those guarantees, or has that effect (section 64(1)).
For services not ordinarily acquired for personal, domestic or household use, liability for breach of a guarantee may be limited to supplying the services again or paying the cost of having them supplied again (section 64A(2)). That does not apply if the client shows that relying on the limit would not be fair or reasonable (section 64A(3)). The test looks at the services rather than the client. Households buy cleaning too, so a contractor should not assume every commercial cleaning contract qualifies.
How should liability and insurance be handled?
Expressly, with a cap that matches the insurance. Most service agreements cap the contractor’s total liability, often by reference to the fees or its insurance, and exclude consequential loss.
Indemnities need the same care. In JJ Richards, the Court accepted that an unlimited indemnity, applying even where the loss was not the customer’s fault, created a significant imbalance ([56](g)). An indemnity confined to loss caused by the other party’s breach or negligence is easier to defend.
Insurance
Clients usually require public liability cover and cover for the contractor’s workers, with certificates of currency, and the same from subcontractors. A cap above the contractor’s insurance, or no cap at all, leaves it carrying the difference.
How should the contract end?
With notice, a handover and a final account. Most agreements let either party end the contract for a breach not fixed within a set time after written notice, and longer contracts often allow termination on notice. A right for only one party to terminate is a statutory example of a term that may be unfair in a consumer or small business standard form contract (ACL section 25(b)).
Suspension for non-payment
Suspension for unpaid invoices should follow the contract exactly. In AIBI Holdings Pty Ltd v Virtual Technology Services Pty Ltd [2022] FCA 696, an IT services provider stopped processing helpdesk tickets for 36 days after its customer withheld payment, relying on such a clause ([2]). The customer could withhold disputed amounts only once the dispute resolution mechanism had been activated. It had not been, so the invoices were payable in full ([137] to [139]) and the suspension was not a breach ([140]).
Early termination fees
A fee for ending a fixed term early in breach of the contract, sometimes the whole of the remaining fees, is a sum payable on default. It is open to challenge if it is out of all proportion to the interests it is meant to protect, which may be business or financial interests (Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28, Kiefel J (French CJ agreeing) at [29]). A fee tied to real costs, such as equipment bought for the site, is easier to defend.
Handover
The agreement should require the return of keys, cards and site documents, a change of alarm codes, removal of the contractor’s equipment and a final invoice. It should also say which obligations survive, such as confidentiality.
How similar matters tend to play out
Three illustrations of how the law on this page combines on ordinary facts. They are not predictions. Outcome depends on the documents, the evidence and the court.
Lower range. A household books a fortnightly clean on a contractor’s standard terms, which exclude all liability for damage to the home. A cleaner ruins a stone benchtop with the wrong product. The client is a consumer (section 3(3)(b)), and the services had to be rendered with due care and skill (section 60). The exclusion is void to the extent it excludes that guarantee (section 64(1)). An exclusion confined to what the law allows, backed by insurance, fixes it.
Middle range. A security company’s standard two-year contracts with small retail clients renew automatically unless the client cancels 30 days before expiry, with no reminder, and allow price increases for any reason. The Court accepted that terms of those kinds created a significant imbalance in JJ Richards ([56](a) and (b)). Relying on them risks a contravention each time (section 23(2C)).
Upper range. A maintenance company without a building work contractor’s licence takes on a job for a business client that is building work under the Act. The client refuses to pay the final invoice. The company is not entitled to any fee unless a court is satisfied the failure resulted from inadvertence only (section 6(2)). It also faces a maximum penalty of $500,000 for a first or second offence (section 6(1)).
How we act on cleaning, security and maintenance agreements
We act for cleaning, security and maintenance businesses, and for the clients who engage them. For a contractor, the aim is a contract that survives the unfair terms law and gets invoices paid. For a client, it is a clear schedule and licensed providers. Our cleaning contract lawyers start from the documents you already use.
| Stage | What happens | What we do |
|---|---|---|
| Review | A contract or tender is sent for advice. | Check scope, service levels, unfair terms, the guarantees and licensing. |
| Drafting | A master agreement and site schedules are prepared. | Draft service levels, access, subcontracting, price review, renewal, liability and exit terms. |
| Workforce | Staff and subcontractors are engaged. | Assess the arrangements under section 15AA, the sham contracting rules and payroll tax. |
| Dispute | A client will not pay or complains about standards. | Advise on the contract, suspension rights and the guarantees, and draft the next letter. |
| Exit | The contract ends or changes hands. | Manage termination, notices and handover. |
We cannot promise an outcome, and no lawyer can. We can make sure your contracts say what you mean and hold up when tested.
Every hour matters. Book a same-day free 30-minute consultation, or call (08) 7094 2021 now.
Service contract case law
None of the decisions below concerned a cleaning, security or maintenance contract; each decided a point that applies to one.
| Case | Court | Principle | Pinpoint |
|---|---|---|---|
| ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224 | Federal Court | Automatic renewal, price variation and unlimited indemnity terms unfair | [56] to [58] |
| AIBI Holdings Pty Ltd v Virtual Technology Services Pty Ltd [2022] FCA 696 | Federal Court | Suspending services for unpaid invoices | [2], [137] to [140] |
| Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28 | High Court | Test for a sum payable on default | [29] |
Case notes
ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224
Moshinsky J declared eight terms of small business standard form contracts unfair and void, including automatic renewal, price variation and indemnity terms. The Court accepted that those terms caused a significant imbalance ([56]) and had not been shown to be reasonably necessary ([57] to [58]).
AIBI Holdings Pty Ltd v Virtual Technology Services Pty Ltd [2022] FCA 696
An IT services provider suspended its helpdesk when its customer withheld payment ([2]). The customer had not activated the dispute mechanism, so the invoices were payable in full and the suspension was not a breach ([137] to [140]).
Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28
Kiefel J, with whom French CJ agreed, asked whether a provision for payment of a sum on default is out of all proportion to the interests it is meant to protect, which may be business or financial interests ([29]). Both appeals were dismissed with costs.
Frequently asked questions
Can a cleaning or security company increase its prices during the contract?
Only as the contract allows. A term allowing increases for any reason, with no right for the client to terminate, can be unfair in a consumer or small business standard form contract (ACL section 25(f); JJ Richards at [56](b)).
Are automatic renewal clauses allowed?
They can be, if fairly drafted. In JJ Richards, the Court accepted that automatic renewal with no notice of expiry created a significant imbalance ([56](a)), and an unfair term in a standard form consumer or small business contract is void (ACL section 23(1)).
Does a security company need a licence in South Australia?
Yes, to carry on business or act as a security agent (Security and Investigation Industry Act 1995 (SA) section 6(1)). Without a required licence it is not entitled to any fee for functions performed in the business, unless a court is satisfied the failure resulted from inadvertence only (section 6(2)).
Does a maintenance contractor need a building licence?
Where the work is building work under the Building Work Contractors Act 1995 (SA), yes (section 6(1)). A contractor that needed a licence and did not hold one is not entitled to any fee for the work, unless a court is satisfied the failure resulted from inadvertence only (section 6(2)).
Are cleaning subcontractors employees?
It depends on the real relationship. For Fair Work Act purposes, the real substance, practical reality and true nature of the relationship decide it, including how the contract is performed in practice (section 15AA).
Does payroll tax apply to cleaning and security subcontractors?
It can. For a business that pays payroll tax, amounts paid for work under a relevant contract are taken to be wages, unless an exclusion in section 32(2) applies (Payroll Tax Act 2009 (SA) sections 32(1) and 35(1)).
Can a contractor limit its liability to a business client?
Within the ACL’s limits. For services not ordinarily acquired for personal use, liability can be limited to supplying the services again or its cost, unless that is not fair or reasonable (section 64A).
Can a contractor stop work if the client does not pay?
If the contract allows it. In AIBI, a provider was entitled to suspend services because its customer withheld payment without activating the dispute process ([137] to [140]).
Who pays if a cleaner or guard loses the keys?
Whoever the agreement makes responsible. It should say who pays to re-key a site, and whether the contractor’s liability is limited to loss caused by its negligence or breach.
Do I need a cleaning contract lawyer?
For contracts you will use with every client, or a large tender, yes. A cleaning contract lawyer can test the price review and renewal terms against the unfair terms law before they are used, when changes cost least. A free 30-minute consultation will tell you where you stand.