Commercial Activity

Reference: UNSW Guidelines for Commercial Activities (the Guidelines) 

Definition

What is a Commerial Activity (pdf)

Under UNSW Australia Act 1989, University Commercial Activities are defined as those activities "comprising the commercial exploitation or development of any facility, resource or property of the University" (s6.3a).

Some examples include:

  • establishment of companies, partnerships or joint ventures
  • retail activity (including sale of notes and publications)
  • lease of campus space to external entities
  • continuing education (including conferences, off-shore programs, non-award and tailored professional programs)
  • overseas projects and joint ventures
  • contract research
  • projects and consultancies

Note: The collection of fees or charges for goods, services or access to facilities is an indicator that an activity is a commercial activity. However, activities that accrue nonfinancial benefits to the University may also be considered commercial activities. Enquiries should be directed to the Compliance Officer http://www.legal.unsw.edu.au/contacts/index.html.

Key questions to consider:

  • Is the activity carried out by or on behalf of the University?
  • Does the activity involve resources, property or facilities in which the University has a right or interest?
  • Is the activity reasonably construed as involving ‘commercial exploitation or development’ of these resources, property or facilities?
  • Does the activity involve any of the following:
    • Exchange of goods/services/remuneration
    • Income: e.g. fees, charges, invoices, commission, royalties, sponsorship
    • Use of the University accounting system
    • Marketing and advertising of a product, service, facility or event
    • Contractual arrangements under which the University receives some form of consideration
    • Formation of a business entity such as a company, partnership or joint venture
    • Registration of a business name
  • Could the Trade Practices Act 1974 apply?

What is not considered a Commercial Activity:

  • Internal charges
  • HECS-funded student places
  • Government-funded Research student places
  • Student Activity Fees (those fees levied on behalf of the University Union, Student Guild, Sports Association)

Responsibilities and the Steps to Follow for new Commercial Activities

Evaluation and Approval

The sponsor (person proposing the commercial activity) should:

  1. Determine if the activity is a Commercial Activity. Contact the Compliance Officer if uncertain http://www.legal.unsw.edu.au/contacts/index.html
  2. If the activity is a Commercial Activity, proceed to prepare a proposal to be submitted to the Head of School for approval / endorsement.
  3. If necessary obtain specialist advice from the relevant Units within the University. Contact the Compliance Office http://www.legal.unsw.edu.au/contacts/index.html
  4. If the activity involves the formation of a business relationship with an externalorganisation (i.e. joint venture, etc) ensure that you contact UNSW Research Services and the Compliance Office for advice.
  5. Prepare an NGFunds form to request a new project be opened in the NewSouth Financial System.
  6. Submit the Proposal Document, NGFunds form and any other supporting documentation to the Head of School for approval.
  7. Take the approved proposal (for filing) and NGFunds form the to School's Executive Officer who will arrange for the new account to be opened.

Proposal

http://www.legal.unsw.edu.au/commercial/index.html
(refer the Guidelines, Section 4.2)

The proposal document should at least specify:

  • The activity duration (start and finish date)
  • Activity summary
  • Goals
  • Management and Organisation
  • Operational Plan (human resources, infrastructure and equipment, financial budget, quality assurance, reporting plan.
  • Risk management plan
  • Research plan

Registration

If approved, ensure it is registered. Complete the Commercial Activity Registration Form  and submit to the Compliance Unit. A hard copy should be downloaded and filed with the proposal in the HoS's office.

Records

Ensure that all information relating to the proposed activity is submitted with the proposal to the Head of School and then to the Executive Officer after approval for recording in an appropriate file kept in the HoS office.

Review 
http://www.legal.unsw.edu.au/commercial/index.html

Sponsors (persons proposing the commercial activity) are responsible for ensuring all commercial activities are reviewed at least once every three years. The Compliance Unit will provide regular reports detailing those activities due for review.

This review should be conducted by a person or panel appropriate to the nature of the activity, and copies of the findings & recommendations of the review provided to both the approval authority and the Compliance Unit (refer the Guidelines section 6.5).

The object of review (refer the Guidelines, Section 6.5) is to:

Assess the continuing viability of the activity; identify any significant changes in the activity; ascertain appropriate risk management processes are in place; explore opportunities for leveraging of the activity; ensure compliance with relevant law, policy and standards.

The review will be conducted by a person or panel appropriate to the nature of the commercial activity. Findings and recommendations of the review shall be provided to the approval authority, and a copy forwarded to the officer responsible for maintaining the University's Register of Commercial Activities.

Review of one-off activities or activities winding up prior to their review date shall take the form of a report assessing the extent to which the activity achieved the objects set out in the approved proposal.

Guidelines for the Head of School

Undertake an evaluation of the proposed activity based on the Proposal Document. The evaluation should be in accordance with the UNSW Guidelines for Commercial Activities, refer to Section 4.

  • Refer to Responsibilities of Approval Authorities
  • Sign the NG Funds form if satisfied that all requirements have been met
  • Refer to the UNSW Guidelines for Commercial Activities, Section 4.4

If necessary, obtain specialist advice from the Compliance Office: http://www.legal.unsw.edu.au/contacts/index.html

Submit the endorsed Proposal Document and NGFunds form to the approval authority if not the Head of School.

Steps to be Followed for Existing Commercial Activities TO BE FOLLOWED FOR EXISTING COMMERCIAL ACTIVITIES

The approval authority and the sponsor should locate all records relating to the activity, and ensure that all relevant documents are kept on an appropriate file for that activity ~ see UNSW Guidelines section 4.7. In CSE, appropriate files are kept in the HoS’s office.

The sponsor ensures that information regarding the activity is provided to the Compliance Unit for entry into the Register of Commercial Activities. Complete the Commercial Activity Registration Form and submit to the Compliance Unit. A hard copy should be downloaded and retained in an appropriate file in the HOS’s office ~ see UNSW Guidelines section 4.8

The sponsor must ensure all commercial activities are reviewed at least once every three years. This review should be conducted by a person or panel appropriate to the nature of the activity, and copies of the findings & recommendations of the review provided to the Approval Authority and the Compliance Unit ~ see UNSW Guidelines section 6.5


The University's Register of Commercial Activities

UNSW Australia Act 1989 requires that the University maintain a Register of Commercial Activities. At present, this register is held within the Compliance Unit of the Legal Office.

The Register is a central repository for information on the University’s commercial activities.

All records held in the Register are considered Commercial-in-Confidence, and access to these records is only available as stipulated in UNSW Australia's Guidelines For Commercial Activities.

Approval authorities supply all information held in the Register relating to a commercial activity and heads of organisational units are responsible for ensuring that information held regarding commercial activities of their units is complete and current.

Reports may be generated by the officer responsible for maintaining the Register for the purposes of review of commercial activities.

Sponsors may request a copy of the information held in the Register relating to their commercial activities by contacting the Compliance Unit. Sponsors should also notify the Compliance Unit of any significant changes to the activity so that an accurate record can be maintained.

Risk Assessment

(refer: http://www.fin.unsw.edu.au/RiskManagement/RiskManagement.html)

Risk Identification

Identify the types of risk that could arise from the activity, such as:

  • Financial loss
  • Physical injury (to staff, students, members of the public, etc)
  • Loss of / damage to University equipment or facilities
  • Inadvertent or deliberate breach of legislation, policy, or ethical standards
  • Misuse of public resources, or corruption
  • Legal liability
  • Damage to the University’s reputation or the reputation of individuals
  • Other

Risk Quantification

Any risks identified should be quantified in terms of likelihood and possible consequences.

Qualitative measures of likelihood

LevelDescriptorExample detail description
1 Rare May occur only in exceptional circumstances
2 Unlikely Could occur at some time
3 Possible Might occur at some time
4 Likely Will probably occur in most circumstances
5 Almost certain Is expected to occur in most circumstances

Qualitative measures of consequence/ impact

LevelDescriptorExample detail description
1 Insignificant No injuries; low financial loss
2 Minor First aid treatment; on-site release immediately contained; medium financial loss
3 Moderate Medical treatment required; on-site release contained with outside assistance; high financial loss
4 Major Extensive injuries; loss of production capability; off-site release with no detrimental effects; major financial loss
5 Catastrophic Death; toxic release off-site with detrimental effect; huge financial loss

Qualitative measures of consequence/ Levels of risk (low, medium, high)

 Consequence    
Likelihood 1 Insignificant 2 Minor 3 Moderate 4 Major 5 Catastrophic
1 Rare Low Low Medium High High
2 Possible Low Low Medium High Extreme
3 Moderate Low Medium High Extreme Extreme
4 Likely Medium High High Extreme Extreme
5 Almost Certain High High Extreme Extreme Extreme


Prepared By: 
Kathy Mitris