Commercial Activities and Joint Undertakings Procedure (MPF1099)
- Category: Governance and Management
- Review due by: June 30, 2015
- Version: 2
- Approved on: November 5, 2013
- Effective date: November 5, 2013
- Status: Published
- GOVERNING POLICY
- 1. Allocation of responsibilities
- 2. Proposals for new joint undertakings
- 3. Determination by Deputy Vice-Chancellor (Research) or Chief Financial Officer
- 4. Reporting and submissions to Finance Committee
- 5. Institutional centres for research and research training
- 6. New ventures by controlled entities
- 7. Register of Commercial Activities
- RELATED DOCUMENTS
- RESPONSIBLE OFFICER
- IMPLEMENTATION OFFICER
- VERSION HISTORY
This procedure is made under the Commercial Activities and Joint Undertakings Policy.
This procedure, and related compliance with the Commercial Activities Guidelines, applies across the whole University. The University also requires its controlled entities to be familiar with the Commercial Activities Guidelines and follow certain reporting requirements as described herein to facilitate compliance by the University.
To that end, this procedure applies to:
- creation of University controlled entities
- entry into and management of commercial activities of the University and its controlled entities
- University participation for commercial purposes in any company, association, trust, partnership or joint venture where an assessment needs to be made as to whether engagement in a commercial activity is one of the relevant purposes.
1. Allocation of responsibilities
1.1 Council must approve on the recommendation of Finance Committee, and the Vice-Chancellor (under advice from the Chief Financial Officer (CFO) or the Deputy Vice-Chancellor (Research) (DVC(R)), the creation of any controlled entity and entry into any ‘significant’ commercial activity as described in section 8(3)(h) of the Act, and in both cases any amendments thereto.
1.2 Finance Committee must approve on the recommendation of the Vice-Chancellor (.under advice from the CFO or the DVC(R)), entry into any other commercial activity of the University or any controlled entity, as well as membership of any company, and in both cases any amendments thereto.
1.3 The CFO or DVC(R), as the case may be, must determine when a particular proposal is not a commercial activity, and where they approve entry into any such activity, must report it to Finance Committee and to the Vice-Chancellor.
2. Proposals for new joint undertakings
2.1 The responsible University project officers must submit all proposals for approval of a new research joint undertaking to the DVC(R) using the appropriate form:
- Research Joint Venture (incorporated component) Form: proposals for University membership of a research joint venture with an incorporated component (e.g. a CRC)
- Company Form: proposals for University membership of a research company
- Other Ventures Form: proposals for University participation in joint undertakings with an external party or any other research-related joint undertaking that may have a profit component.
2.2 The responsible University project officers must submit all proposals for approval of a new non-research joint undertaking to the CFO using the appropriate form:
- Company Form: proposals for University membership of a company.
- Other Ventures Form: proposals for University participation in an unincorporated joint venture or any other joint undertaking that may have a profit component.
2.4 The forms require the project officer to demonstrate that the proposed activity is not a commercial activity according to the criteria in the Commercial Activities Guidelines. Where the proposed activity may involve a commercial activity as defined by Guidelines, the project officer must consult with Legal Services, who will advise on assessments and measures to be provided for Finance Committee review. (See the relevant form, and Directions for the Use of Pro Formas for more information.)
3. Determination by Deputy Vice-Chancellor (Research) or Chief Financial Officer
3.1 The DVC(R) or CFO (as appropriate) will consider the proposal, and determine whether it:
- involves a commercial activity as defined by the Commercial Activities Guidelines
- meets the requirements of the Commercial Activities Guidelines and any other necessary criteria.
If the DVC(R) or CFO is satisfied that all requirements have been met, they may approve progression of the proposal, provided that any commercial activity also needs the approval of the Vice-Chancellor.
3.2 The DVC(R) or CFO (as appropriate) will notify the responsible University project officer in writing of the decision, and ensure that copies of approved proposals are sent to the University Secretary for recording and compliance monitoring.
4. Reporting and submissions to Finance Committee
4.1 The CFO will report to Finance Committee all determinations (or recommendations as the case may be) made by the CFO or DVC(R), and by the Vice-Chancellor.
4.2 Following management approval, the CFO will submit proposals for University participation in a company or involvement in a commercial activity for consideration by Finance Committee, in line with the Committee’s terms of reference, and report on other determinations made by the CFO and DVC(R), or under their advice by the Vice-Chancellor. See Finance Committee’s Guidelines for Controlled Entities, University Companies and University Subsidiary Companies for detailed requirements in relation to proposed company participation.
4.3 Following management approval, the CFO will report to Finance Committee any proposed joint undertakings intended to be conducted other than through a limited company and not being an engagement in a commercial activity, together with details of any significant indemnity the University will be obliged to provide or any other significant exposure to liability evident in the proposal.
5. Institutional centres for research and research training
5.1 As required by the Centres and Institutes for Research and Research Training Policy, all proposed institutional centres for research and research training require the approval of the Vice-Chancellor on recommendation from the DVC(R). The DVC(R) will make such recommendations following initial approval as described in sections 2 and 3 above.
6. New ventures by controlled entities
6.1 Controlled entities must ensure that the requirements of the Commercial Activities Guidelines are observed when forming or participating in a separate incorporated entity, or engaging in an unincorporated joint venture. Company secretaries must notify the DVC(R), the CFO and the University Secretary of any such proposals (refer templates A and B).
6.2 Boards of controlled entities must report on new ventures as part of their quarterly reports to Finance Committee, and subject to the terms of any existing delegations held by Finance Committee to approve in advance significant transactions of any such entities, as reflected in paragraph 7 of Section IV of Finance Committee terms of reference.
7. Register of Commercial Activities
7.1. The University Secretary will maintain a Register of Commercial Activities of the University and its controlled entities.
7.2. The University Secretary will ensure that the Register contains sufficient information to satisfy the requirements of the Commercial Activities Guidelines, and that it is updated at least quarterly.
- Commercial Activities and Joint Undertakings Policy
- Commercial Activities Guidelines
- Commercial Activities and Joint Undertakings – Flowchart Diagram on approval process
- Register of Commercial Activities
- Compliance Package for University Engagement in Corporations/Joint Undertakings and Commercial Activities (including Finance Committee terms of reference (Attachment 1) and compliance examples Q&A (Attachment 2))
- Research Joint Venture (incorporated component) Form
- Company Form
- Other Ventures Form
- Directions for Use of Pro Formas (relates to 3 forms listed above)
- Template A: Proposal for Formation of or Participation in a Separate Corporate Entity
- Template B: Proposal for participation in an Unincorporated Joint Venture or Joint Undertaking
- Finance Committee’s Guidelines for Controlled Entities, University Companies and University Subsidiary Companies
- Centres and Institutes for Research and Research Training Policy
|Commercial Activities Guidelines||The University Guidelines concerning commercial activities and other matters as approved by the relevant Minister on 11 May 2011 in accordance with Part 6 Division 6 of the Act.|
|commercial activity||A commercial activity as defined or otherwise referred to in the Commercial Activities Guidelines.|
|controlled entity||A University company, University subsidiary company or other entity where the University has effective control.|
|joint venture||An association of persons which includes the University, and which is defined or otherwise referred to in the Commercial Activities Guidelines.|
|joint undertaking||The University or any controlled entity being a member of, forming, managing or participating in a company, association, trust, partnership or joint venture as referred to in the Commercial Activities Guidelines.|
|University company||A company in which the University has an interest, either as a shareholder or a member (excluding interests held solely for investment or insurance purposes).|
|University subsidiary company||A University company where the University controls the composition of the board of directors or has more than 50 per cent of the general meeting voting rights of the company.|
The Chief Financial Officer is responsible for the development, compliance monitoring and review of this procedure and any associated guidelines.
The Special Counsel is responsible for the promulgation and implementation of this procedure in accordance with the scope outlined above. Enquiries about interpretation of this procedure should be directed to the Implementation Officer.
This procedure is to be reviewed by 30 June 2015.
|Version||Approved By||Approval Date||Effective Date||Sections Modified|
|1||Council||8 Oct 2012||8 Oct 2012||New procedure.|
|2||University Policy Officer||5 Nov 2013||5 Nov 2013||Minor amendments - hyperlinks added to document references and document titles updated.|