(1) These Guidelines are made by the Board of Trustees pursuant to Part 4, Division 4 (sections 32A-32E) of the Western Sydney University Act 1997. (2) The University has power under the Act to carry on commercial activities as part of its functions. (3) These Guidelines establish a framework of principles and processes for the evaluation, approval and conduct of commercial activities that support achieving optimal benefits and minimise the risks to the University. (4) Core elements include requirements for undertaking feasibility and due diligence assessments, identifying appropriate governance and administrative arrangements, undertaking risk assessment and risk management measures, and monitoring and reporting. (5) The Vice-President, Infrastructure and Commercial has the responsibility for providing advice in relation to interpretation of and compliance with these Guidelines. (6) For the purpose of these Guidelines, the following definitions apply: (7) All commercial activities are guided by the following principles: (8) Leases or licences of land owned or controlled by the University are guided by the following additional principles: (9) Section 32A of the Act defines a commercial activity as: (10) Section 8(3)(a) of the Act defines “commercial functions” as: (11) The Board has prescribed the following activities as commercial activities for the purposes of these Guidelines: (12) The following activities are not commercial activities for the purposes of these Guidelines but may in some cases be subject to evaluation, risk assessment and approval processes described in the Procurement Policy. (13) Notwithstanding clause 12, an activity may still have to be evaluated and assessed for risk and approved in the same way as a commercial activity if the University's financial contribution is likely to exceed $150,000. This requirement applies even if the primary purpose of that activity is not commercial or there is no expectation of profit. Advice should be sought from the Vice-President, Infrastructure and Commercial before preparing a proposal. (14) Activities conducted outside Australia - for any proposed commercial activity conducted outside Australia, additional independent expert legal, tax, foreign exchange restrictions and other regulatory compliance advice must be obtained before a proposal can be submitted for approval. (15) Refer to the Council of Australian Governments Competition Principles Agreement, April 2007 for the policy of competitive neutrality in relation to commercial activities carried out by State and Federals Governments and all publicly funded institutions, including universities. (16) The principles of competitive neutrality require that the University should charge a competitive amount for all services conducted as commercial activities, rather than an amount based on cost advantages that the University has as a government-funded institution, including its tax-exempt status and shared infrastructure and resources that often subsidise indirect costs of a particular activity. (17) Direct costs are those that are directly attributable to an activity, such as: (18) Indirect costs are overheads or infrastructure costs that the University cannot easily allocate to a single activity, such as: (19) All proposals must be costed, and will be evaluated, on the basis of total estimated direct and indirect costs, unless the University decides that there are strategic, competitive or other community benefit grounds for not doing so. (20) Proposals must be submitted and evaluated in the format required in accordance with Commercial Activity Procedure. (21) All impacted areas of the University should be consulted when preparing a proposal. (22) If the Commercial Activity involves procurement of goods and/or services, the requirements of the Procurement Policy must be met. (23) A commercial activity must be approved in accordance with the Commercial Activity Procedures before it can be submitted to the relevant avenue for approval. Refer to the Commercial Activities Procedures for threshold details. (24) All commercial activity proposals will be evaluated in accordance with the relevant threshold: (25) All commercial activities must be properly structured and documented and must incorporate contractual provisions dealing with: (26) All contracts must be prepared or reviewed by the Office of General Counsel or delegated representative. (27) Any appointments of directors or other office holders to a company or other vehicle (whether incorporated or unincorporated) must be first approved by the Board Executive Committee. (28) Final approval of any proposal shall be in accordance with the University's Delegations of Authority Policy in accordance with the Commercial Activity Procedures. (29) A sponsor of a commercial activity must not approve that activity, even if they have delegated authority to do so. The activity must be referred for approval to a delegate who is more senior than the sponsor or BIDC, in accordance with the University's Delegations of Authority Policy. (30) Any proposal requiring Board approval must first be endorsed by: (31) Refer to the Commercial Activity Procedures for the approval and endorsement process. (32) The relevant managing unit is responsible for managing and regularly monitoring the commercial activity throughout the total activity life to ensure the ongoing viability of the commercial activity, including ensuring compliance with: (33) All commercial activities will be reviewed, at a minimum, every three years to: (34) The Vice-Chancellor and President or the Vice-President, Infrastructure and Commercial can at any time direct an unscheduled review or audit of a commercial activity, if considered appropriate. (35) Anyone involved in preparing, evaluating or approving a proposal must: (36) The following requirements apply: (37) All conflicts of interests are to be recorded in accordance with the Conflict of Interest Policy. (38) All Conflict of Interests declared will be kept on a Register of Commercial Interests. This may be inspected by: (39) All requests to inspect the Register of Commercial Interests shall be directed to and managed through the Vice-President, Infrastructure and Commercial. (40) Any information recorded on the Register of Commercial Interests that consists of personal information will be collected, stored, used and disclosed in accordance with the University's Privacy Policy and Privacy Management Plan. (41) The Board of Trustees has established and maintains a Register of Commercial Activities of the University and its controlled entities in accordance with section 32C of the Act. (42) The Vice-President, Infrastructure and Commercial is responsible for maintaining the Register of Commercial Activities and ensuring that details of all approved commercial activities are entered and kept up to date, including the following details: (43) The Government Information (Public Access) Act 2009 (GIPA) Contracts register is a separate publicly available register to the Register of Commercial Interests and is maintained by Procurement Services and overseen by the Vice-President, Finance and Digital Services. (44) The managing unit is responsible for compliance with GIPA and ensuring that all details are properly entered into and uploaded to the Contracts Register. (45) All commercial activities must be approved in accordance with the University's Delegations of Authority Policy. (46) Controlled entities are defined under section 22A of the Act. The Board of Trustees in reviewing and approving any proposal to establish a controlled entity must ensure that any controlled entity does not propose to exercise any function or engage in any activity that the University itself is not authorised to undertake by the Act unless specific permission has been obtained from the Minister. The Board of Trustees thereafter will be responsible for monitoring the controlled entity. (47) The Boards of controlled entities are responsible for ensuring that evaluation, risk management and accountability processes are in place and are consistent with the requirements of applicable legislation and policy, including these Guidelines. In considering the appointment of directors to the boards of controlled entities, the Board of Trustees should ensure that the appointees possess an appropriate level of skill, knowledge and experience to discharge their duties as a director. Where a University commercial activity is an activity managed by a controlled entity that has a board of directors and is subject to the Corporations Act 2001, then the activity will be managed in accordance with the constitution of that entity provided that: (48) Nothing in these Guidelines diminishes the responsibilities that directors have under the Corporations Act 2001. (49) Commercial activities must be managed in such a way as to comply with the University's obligations as a public authority, and to minimise the risk of corruption, fraud, maladministration or waste. Staff involved in the activity must comply with the Code of Conduct and all other policies of the University including those relating to the management of the University's finances and resources. (50) Members of the University community who identify possible instances of corruption, fraud, maladministration or waste have an obligation to report these in accordance with the University's Fraud and Corruption Risk Management Framework. (51) Any reports of fraud, maladministration or waste may also be treated as public interest disclosures under the University's Whistleblowing (Reporting Corruption and Other Serious Wrongdoing) Policy. (52) The Commercial Activities Guidelines are managed by the Office of the Vice-President, Infrastructure and Commercial and are designed to ensure commercial activities receive sufficient rigour and due diligence before progressing. (53) The process of obtaining approval will be determined by risk level and value threshold having regard to the: (54) Commercial activities considered very low – moderate in risk (in accordance with the Western Sydney University Western Risk Assessment Guide) are required to follow the Due Diligence Process. (55) For Research related activities: (56) For activities related to the purchase of Goods and/or Services: (57) Commercial activities considered high - critical in risk (in accordance with the Western Sydney University Risk Management Guidelines) are required to follow the Proposal/Business Case Process. (58) All activities are required to undergo: (59) Proposals must be submitted in the format required in accordance with the Commercial Activity Procedures. (60) All proposals must be costed, and will be evaluated, based on the total estimated costs and financial contribution. (61) All relevant commercial activity proposals will be evaluated according to the following criteria: (62) In evaluating financial viability, the following will be taken into account: (63) N/A.Commercial Activities Guidelines
Section 1 - Purpose and Context
Section 2 - Definitions
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Act
means the Western Sydney University Act 1997 as amended
BIDC
means the Business and Infrastructure Development Committee which is a committee of the University's executive
conducted outside Australia
means the activity or service is supplied and/or delivered from outside of Australia
controlled entity
means a controlled entity of the University within the meaning of section 22A of the Act and the University's Controlled and Associated Entities Governance Framework
commercial activity
means an activity defined in Clause 9 of these Guidelines
commercial activity procedures
means the procedures set out in Section 4 of these Guidelines.
community engagement activity
means an activity to develop and provide cultural, sporting, professional, technical and vocational services to the community that contribute to the social, economic and/or intellectual life of the University and of the Greater Western Sydney region, regardless of whether that activity generates a commercial return
conflict of interest
means an actual or potential conflict of interest, and includes any material interest referred to in Schedule 2A of the Act
contract research
means a Research or other project that is conducted by the University in return for a fee or other consideration, except grant-funded research
Contracts Register
means the register of contracts referred to in clauses 43 – 44 and required to be maintained under the Government Information (Public Access) Act 2009
Corporations Act
means the Corporations Act 2001 (Cth)
costs
means the total costs inclusive of related direct and indirect costs
delegate
means the person, committee, authority or officer to whom the Board delegates a function under s.23 of the Act, including under the Delegations of Authority Policy or these Guidelines
financial contribution
means the actual cost to Western Sydney University (‘The University’) of undertaking the activity excluding in-kind costs. [Note: if in-kind costs are more than four times the value of the incremental cost, then they must also be included for the purposes of calculating the value of the financial contribution
GIPA
means the Government Information (Public Access) Act 2009 (NSW) as amended from time to time.
grant funded research
means a Research project:
gross income
means the total revenue (including any in-kind contribution) payable to the University before deduction of any expenses or other amounts, including any sharing of profits with another organisation
ITDS
means Western Sydney University's Information Technology and Digital Services team
intellectual property
means the definition within the Intellectual Property Policy
material interest
has the meaning given to that term in paragraph 5(9) of Schedule 2A of the Act
managing unit
means the person or the academic or administrative unit with responsibility for the conduct of a commercial activity throughout its life
proposal
means any proposal for the University to undertake a commercial activity
risk
Register of Commercial Activities
means the register referred to in clauses 41 – 42
Register of Commercial Interests
means the register referred to in clauses 38 – 40
research
means creative and systematic work undertaken in order to increase the stock of knowledge – including knowledge of humankind, culture and society and to devise new applications of available knowledge
sponsor
means the person or academic or administrative unit that proposes a commercial activity for approval under these Guidelines
total activity life
means the total length of time for the conduct of a commercial activity, including any extension or renewal
Section 3 - Policy Statement
Definition of a Commercial Activity
Competitive Neutrality Principles
Proposal
Proposal Threshold
Governance and Documentation
Final Approval
Ongoing Operational Requirements
Conflicts of Interest
Register of Commercial Interests
Register of Commercial Activities
Contracts Register [Government Information (Public Access) Act 2009]
Delegations of Authority
Controlled Entities
Prevention of Corruption, Fraud, Maladministration and Waste
Section 4 - Procedures
Purpose
Approval Process
Consequences
Likelihood
1
Rare2
Unlikely3
Possible4
Likely5
Almost Certain
5
CatastrophicModerate
Moderate
High
Critical
Critical
4
MajorLow
Moderate
High
High
Critical
3
ModerateLow
Moderate
Moderate
Moderate
High
2
MinorVery Low
Low
Moderate
Moderate
Moderate
1
InsignificantVery Low
Very Low
Low
Low
Low
Due Diligence Process
Proposal/Business Case Process
Evaluation Proposals
Financial Viability
Top of PageSection 5 - Guidelines
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means an actual or contingent risk, including any one or more of the following:
… comprising the commercial exploitation or development, for the University’s benefit, of any facility, resource or property of the University or in which the University has a right or interest (including, for example, study, research, knowledge and intellectual property and the practical application of study, research, knowledge and intellectual property), whether alone or with others, with particular regard to the need to contribute to the development of Greater Western Sydney