Policy Directory

COMMERCIAL RESEARCH POLICY

Date first approved:

26 November 2004

Date of effect:

11 September 2007

Date last amended:

(refer to Version Control Table) 22 August 2017

Date of Next Review:

Currently under review

First Approved by:

University Council

Custodian title & e-mail address:

Deputy Vice-Chancellor (Research and Innovation)

Judy_Raper@uow.edu.au

Author:

Senior Manager, Innovation and Commercial Research

Responsible Division & Unit:

Innovation and Commercial Research,

Research and Innovation Division (RaID)

Supporting documents, procedures & forms of this policy:

Commercial Activity Guidelines

Commercial Research Approval Form

Commercial Research Costing Worksheet Proforma General

Conflict of Interest Policy

Consultancy Expense Guidelines

Corruption Prevention Policy

Delegations of Authority Policy

Faculty Cost Recovery Waiver Form

Intellectual Property (IP) Commercialisation Revenue Guidelines

Intellectual Property (IP) Policy

Risk Management Policy

Secondary Employment Policy

University Code of Conduct

Relevant Legislation &

External Documents:

Convention Establishing the World Intellectual Property Organisation, July 1976

National Principles of Intellectual Property Management

University of Wollongong Act 1989

Audience:

Public

Submit your feedback on this policy document using the Policy Feedback Facility.

Contents

1 Purpose of Policy

  • 1. This policy describes the approach taken by UOW in relation to commercial research, including how to:
    • 1.1 identify the various types of commercial research;
    • 1.2 cost commercial research projects; and
    • 1.3 gain UOW’s approval to create and commence commercial research activities.
  • 2. This policy will ensure that UOW complies with its own Commercial Activity Guidelines. It is also intended that this policy will guide UOW’s interactions with external customers with regards to commercial research.
  • 3. UOW believes that the specialist experience and skills of its academic staff members should be made available to the wider community. Academic staff members are therefore encouraged to undertake commercial research to share their expertise and experience and to transfer knowledge from UOW to the wider community.
  • 4. Benefits to UOW and staff members from undertaking commercial research include:
    • 4.1 enhanced relationships with external customers;
    • 4.2 increased professional reputation;
    • 4.3 technology transfer;
    • 4.4 income generation;
    • 4.5 potential new research outcomes and publications; and
    • 4.6 flow of knowledge both into and out of UOW.

2 Definitions

  • 1. References to the singular include the plural and references to the plural include the singular.

Word/Term

Definition (with examples if required)

Commercial Activity

An activity that involves the provision of goods and services with financial, commercial and/or industrial aspects. Situations that have no financial transactions may still be considered as a commercial activity for insurance, liability and risk assessment purposes. Determination is via a judgement call based on the nature of the activity and the parties involved.

Commercial Research

Research activity conducted under a commercial contract that includes, but is not limited to:

    ⋅ Consulting;

    ⋅ Contract research with government, non-government and/or private sector entities;

    ⋅ Collaborative research with government, non-government and/or private sector entities; or

    ⋅ Cooperative Research Centres (CRCs).

    ⋅ This does not include research conducted under Australian Research Council competitive grants or other grant schemes.

Consultancy

Any project that involves an external agency buying the skills and expertise (pre-existing know how) of staff and/or use of UOW equipment to work on a specified project, with the approval of UOW to do so. Consultancies involve the application of existing knowledge and do not normally lead to the development of new IP. Income from activities of this nature is not normally included in DEST research income definitions.

Contract Research

Research that is conducted at the request of and paid for by companies, agencies, or other organisations external to UOW, with the approval of UOW to do so. Such research is conducted on a contractual basis and may involve Research that is conducted at the request of and paid for by companies, agencies, or other organisations external to UOW, with the approval of UOW to do so. Such research is conducted on a contractual basis and may involve ownership, confidentiality and publication restrictions. Contract research involves a greater level of originality than a consultancy and will lead to the development of new IP and generally results in DEST recognised research outputs. Activities described in the OECD/DEST definition of research (see Appendix 2) would be considered potential Contract Research activities.

Faculty Cost Recovery

The cost recovery fee applied to commercial research to reimburse the relevant faculty and academic unit (either Department or School or in some cases Institute or Centre) for associated support costs. Support costs include but are not limited to the costs of maintaining equipment, electricity, computers, laboratories, offices, cleaning, facsimiles, printers, human resources and telephones. Note that the Faculty Cost Recovery is not intended to cover the costs of purchasing items of equipment, computers or refurbishments to accommodate new staff involved in the commercial research project. Such additional costs must be charged to the Client as “other” costs in the Commercial Research Costing Pro Forma.

ICR

The Innovation and Commercial Research Unit located within the Research and Innovation Division at UOW.

IP

Any original product of the creator’s mind or intellect, commonly developed through research or creative efforts (e.g. inventions; literary and artistic works; designs; and symbols, names and images used in commerce) as defined by Article 2 of the Convention Establishing the World Intellectual Property Organisation, July 1967.

Licensed Consultancy

A consultancy for specific activities, that UOW has approved to run under its auspices, such that the same activities can be undertaken for a range of clients over a one year period with minimal administration. Examples of activities in this category include but are not limited to:

    ⋅ chemistry mass spectrometry facilities;

    ⋅ the drill rig in Geosciences;

    ⋅ XRF equipment,

    ⋅ training workshops on specific transnational crime prevention issues;

    ⋅ provision of scientific reports on functional foods; and

    ⋅ concrete testing in Civil and Mining.

    ⋅ The administration is reduced as only one Commercial Research Approval Form needs to be completed each year (so long as the activities are the same) and a standard non-negotiable contract covers these activities, which can be used with multiple clients. License renewals are to be submitted every twelve months or on the relocation of the nominated Project Manager, whichever is the sooner.

Private Consultancies

Consultancies that:

    ⋅ are undertaken by academic staff members in a private capacity and not through their employment with UOW;

    ⋅ do not involve more than one day per working week of an academic staff member’s time;

    ⋅ do not use UOW resources or academic or general staff members (other than in a private capacity); and

    ⋅ do not use UOW's name or imply that the academic or general staff member is acting on the authority of UOW.

Project Manager

The UOW staff member who is the lead investigator and will take overall responsibility for ensuring that the project complies with this Policy.

Staff Member

All people employed by the University including conjoint appointments, whether on continuing, permanent, fixed term, casual or cadet or traineeship basis.

Student

A person registered for a course at the University of Wollongong.

Tender

Tenders are managed by ICR, whereas grants are managed by the Research Services Office. Sometimes it may be unclear whether a project is a grant or tender project because both involve a competitive application process. In such cases, it may be useful to consider the following:

A tender will usually involve a competitive bid to achieve a set of outcomes that have been pre-defined by the organisation calling for tenders (e.g. a call for tenders to undertake research to develop a new material for use in medical prosthetics where the general specifications for the new materials are provided by the organisation calling for tenders). The funding is then usually provided in accordance to meeting certain milestones; whereas a grant will involve a competitive application for funding to support a project with activities that are mainly determined by UOW (e.g. a call for applications to undertake health and medical research where UOW decides that it will focus on developing novel materials for medical prosthetics and will determine its own specifications for these new materials). The funding is not usually tied to specific milestone achievements (though there may be obligations to achieve, in a general sense, what was described in the application).

ICR and the Research Services Office can determine whether a project is a tender for a commercial research project or grant on a case by case basis if required.

UOW Cost Recovery

The cost recovery fee applied to commercial research activities to reimburse UOW for associated support costs. Support costs include the costs of maintaining insurance/protection, obtaining legal advice (both internal and external advice), raising invoices, financial management and commercialisation/commercial research staff.

UOW

The University of Wollongong.

3 Application & Scope

    • 1. This policy applies to all Staff Members and Students when they are involved in commercial research. In such cases, wherever the term “Staff Member” is used, the references will apply to the academic and professional services staff member or student as well.

4 The Approval Process to Undertake Commercial Research

  • 1. All commercial research performed under the auspices of UOW must have UOW’s prior approval to do so. UOW’s approval to undertake commercial research is sought by completing a Commercial Research Approval Form and Commercial Research Costing Pro Forma. If the Project Manager (ie. lead investigator) wants to seek a waiver of the Faculty Cost Recovery, a Faculty Cost Recovery Form will also need to be completed.

5 Conditions of Approval for Commercial Research

  • 2. Participation in commercial research, undertaken under the auspices of UOW, requires the written approval of the Project Manager’s Supervisor or Head of Unit/School (whichever is the more senior position). UOW’s approval is subject to consideration of the following:
    • 1.1 the proposed activity meets UOW’s evaluation and risk assessment criteria (see commercial Research Risk Indicators at Appendix 1) and complies to UOW’s Risk Management Policy;
    • 1.2 the balance of the academic staff members ’ time spent on research, teaching, professional work and/or commercial research is determined in consultation with their Head of Unit/School and/or their Dean;
    • 1.3 the staff members are qualified to undertake the relevant commercial research activities, considering the academic staff member’s field of expertise and experience;
    • 1.4 UOW is safeguarded in relation to and compensated properly for the use of its facilities and reputation;
    • 1.5 the rights, duties, obligations, liabilities and entitlements of UOW and staff members are clearly defined;
    • 1.6 UOW's guidelines, policies and procedures are followed;
    • 1.7 the proposed activity meets the time commitment and limits outlined in Section 9;
    • 1.8 the fee for service being received by UOW is adequate to enable the work to be done in a diligent and professional manner and to ensure that UOW complies with the principles of competitive neutrality (see Section 10);
    • 1.9 the staff member does not compromise the quality and conduct of commercial research for financial or other personal advantage nor undertake any commercial research where there is a potential or perceived conflict of interest;
    • 1.10 payment is not made to an staff member’s private company; and
    • 1.11 a contract for the commercial research is approved by UOW and properly signed by all parties.

6 Negotiations with the Client Prior to Approval by UOW

  • 1. Staff members undertaking negotiations with potential clients have a duty to inform the client that they do not have the delegated authority to bind UOW and that any negotiations are subject to obtaining formal approval from UOW. The staff member’s involvement in negotiations with the client must be limited to coming to agreement with the client on the project scope, deliverables and the timing of the project. The staff member should advise ICR of preferred arrangements and ICR will negotiate commercial and/or legal terms with the client.
  • 2. Sometimes, it may be appropriate for the staff member to provide a quote to the client. Before providing a quote to the client, the staff member must ensure that they have costed the project using the Commercial Research Costing Pro-Forma in order to comply with UOW’s costing procedures and to ensure that UOW is not under-costing the project.
  • 3. Staff members must ensure that they do not commit to completing the commercial research in a specified timeframe unless that time-frame is adequate to complete the project in a diligent and professional manner. Adequate time must also be provided to prepare and negotiate the contract. UOW’s expectation is that a minimum of two weeks’ notice will normally be provided to ICR.
  • 4. Clients may sometimes request staff members to sign a non-disclosure agreement or confidentiality agreement prior to providing confidential details of a proposed project. Staff members do not have the delegation to sign commercial research agreements, including confidentiality agreements, and must refer these to ICR to organise legal review and to negotiate terms prior to execution.

7 Submitting Tenders

  • 1. Sometimes staff members may wish to participate in a tender process for contract research or consulting activities. If UOW is successful in gaining the tender, this work will be considered commercial research and UOW’s Commercial Research Policy and normal approval processes will apply.
  • 2. If the call for tender requires a quote, the Commercial Research Costing Pro Forma should be used to calculate costs.
  • 3. If the call for tenders requires compliance to a set of standard conditions (this is common in Commonwealth calls, where the tenderer will be asked to provide a list of "non-compliance" to the Commonwealth's standard contract), a copy of the standard contract should be provided to ICR. ICR will then obtain advice from Legal Services on UOW's ability to comply with the standard contract. Again, a minimum of two weeks’ notice should normally be provided to ICR.
  • 4. In all tender documents, staff members must include the following statement: "The University of Wollongong retains the right to negotiate the terms of any contracts that may arise as a result of the University being successful in this tender". This could be inserted into a covering letter or elsewhere in the tender documentation.
  • 5. The researcher submits the tender. If an authorised UOW delegate is required to sign the tender documentation, ICR can organise this.

8 Agreement Development and Negotiations with the Client Following Approval by UOW

  • 1. Prior to the commencement of any commercial research, a legally enforceable and properly executed written agreement to undertake the commercial research must be entered into. This agreement must:
    • 1.1 be authorised in accordance with the Delegations of Authority Policy;
    • 1.2 specify the correct legal entities (i.e. UOW and the client(s));
    • 1.3 be signed by properly authorised delegates of those legal entities that are party to the agreement;
    • 1.4 specify a clear and definitive scope of the work or service to be provided; and
    • 1.5 protect the interests of UOW.
  • 2. UOW Legal Services and ICR are responsible for ensuring that the agreement adequately protects the interests of UOW and its staff members. Sufficient time must be allowed to enable Legal Services and ICR to prepare, risk assess, evaluate, negotiate and execute the agreement prior to work commencing on the commercial research project. A minimum of two weeks’ notice to ICR is normally required.
  • 3. It is the role of ICR, with the advice of Legal Services, to negotiate any commercial terms, such as IP ownership, licences and commercial fees or legal issues such as indemnity, jurisdiction and protection in the agreement.
  • 4. Staff members do not have the authority to sign any form of commercial research agreement on behalf of UOW. Any agreement entered into by a staff member without obtaining the formal approval of the UOW shall be deemed to be an agreement that the staff member has entered into in her/his private capacity. UOW may then make the staff member a party to any legal proceedings commenced against the UOW under the agreement as a result of the act or omission of the staff member.

9 Time Commitments and Limits

  • 1. Staff members may undertake commercial research, as long as this does not interfere with the duties and responsibilities associated with the staff member's regular employment at UOW. Approval is subject to the conditions noted in Section 5 above.
  • 2. The amount of time that any staff member dedicates to commercial research must not exceed, without approval, on average, 20% of the weekly time that is allowed for their normal duties. For full-time staff members this equates to a maximum of one day per week. Such time shall not normally be cumulative.
  • 3. Staff members must ensure that the time they devote to projects, whether undertaken on behalf of UOW or in a private capacity, is not compromising the quality or outcomes of their normal research, administration and teaching activities and is of strategic benefit to UOW. In special circumstances, the Vice-Chancellor (subject to the endorsement of the Head of Unit/School, Dean and Deputy Vice-Chancellor (Research and Innovation)) may approve concentrated periods on commercial research projects, subject to the proviso that in any reasonable period (ie. six months) that includes the short period of concentrated outside work, the staff member's total involvement has not exceeded the 20% limit. If a significant amount of a staff member's time has the potential to be taken up by paid outside work, they should apply for leave without pay or negotiate a fractional appointment.

10 Costing of Commercial Research Projects

  • 1. UOW is committed to a general policy of fully costing all externally funded projects as recommended by the Australian Vice Chancellor's Committee (“AVCC”) and in accordance with the principles of competitive neutrality.
  • 2. Prior to reaching agreement with clients, all commercial research must be properly costed using the Commercial Research Costing Pro-Forma. Supervisors and Heads of Units/Schools must not approve projects that are not fully costed. Should a Supervisor and/or Head of Unit consider it necessary or appropriate to charge less than cost recovery for the total project (ie. separate to waiving the Faculty Cost Recovery), such a request must be approved by the Dean and written justification should be sent to ICR. These requests will be considered on a case by case basis. If the Faculty Cost Recovery is to be waived, the Dean must sign the Faculty Cost Recovery Waiver Form to approve such a waiver.
  • 3. For high value projects (i.e. above $50,000), a minimum payment should be requested up front from the client on commencement of the project, followed by progress payments, with a balance payable on completion of the project. For smaller projects it is recommended that a minimum 50% payment be requested up front with the balance payable on completion.

11 Items to be Costed in Commercial Research

  • 1. The Innovation and Commercial Research Costing Pro-Forma should be used when costing commercial research. There are two versions of this form. One version is specifically for Faculty of Engineering projects and the other is for use by all other Faculties. The Faculty of Engineering has chosen to continue using the previous (ie. pre-2007 with Faculty Cost Recovery based on salary costs) costing approach.
  • 2. Salaries
    • 2.1 Salaries of all staff members involved in commercial research should be costed. It is also important that salary increases and relevant overheads are costed in for projects performed over a time period where staff pay increases are due. The Commercialisation Manager in ICR can provide advice to staff members on how to do this. The Commercial Research Costing Pro-Form provides the following salary figures as separate worksheets:
        • a) Cost Recovery Rates – this is the actual salary rate with salary overheads for each level. This is the minimum rate that should be charged; and
        • b) Commercial Rates – this is an indicative rate that professionals in the private sector will commonly charge. Some industries will readily accept these rates – for example, these rates should be used for all expert witness consultancies.
  • 3. Non-Salary Costs
    • 3.1 All non-salary costs, such as consumables, equipment, third-party costs (eg. sub-contractors) and travel should be costed and charged to the client. This is standard practice in industry for costing of projects.
    • 3.2 Any equipment purchased for commercial research and paid for by UOW must remain the property of UOW. Equipment purchased with funds from a staff members’ UOW account must remain the property of UOW.
  • 4. UOW and Faculty Cost Recovery
    • 4.1 Funding sources listed on the Australian Competitive Grants Register (e.g. Australian Research Council grants) attract significant additional research infrastructure funding from the Government in the form of a Research Infrastructure Block Grant (“RIBG”). As infrastructure funding for commercial research is not covered in this manner, the UOW and Faculty Cost Recovery are added to meet these costs and assist in providing researchers with adequate infrastructure to undertake their commercial research projects.
    • 4.2 The Faculty Cost Recovery can only be waived with the prior approval, via a Faculty Cost Recovery Waiver Form, of the relevant Dean. It is the responsibility of Faculties and Units to determine and inform their staff members and ICR of decisions relating to variations from normal Faculty requirements. This information should be provided on the Faculty Cost Recovery Waiver Form and/or Commercial Research Approval Form.
    • 4.3 The UOW Cost Recovery must be charged. The Deputy Vice-Chancellor (Research and Innovation) will only give prior approval for this fee to be waived in exceptional circumstances. All requests for exemptions must be in writing and sent to ICR. The UOW Cost Recovery will not be charged on the component of the commercial research fee that is used to provide direct support for student research scholarships. This does not apply if the student is being paid as a staff member rather than being provided a scholarship.
    • 4.4 In recognition that contract research will usually lead to additional benefits to UOW, such as publications, patents and IP, the UOW Cost Recovery is lower for contract research than consultancies.
    • 4.5 The UOW Cost Recovery is 15% of the pre-GST total cost to the client for commercial research and licensed consultancies and 20% of the pre-GST total cost to the client for consultancy for all faculties other than Engineering. For the Faculty of Engineering, the UOW Cost Recovery is calculated as 10% of the total cost for contract research and licensed consultancies and 15% of the total cost for consultancies.
    • 4.6 The Faculty Cost Recovery is 15% of the pre-GST total cost to the client for commercial research, licensed consultancies and consultancy for all Faculties other than Engineering. For the Faculty of Engineering, the Faculty Cost Recovery is calculated as either 1.25 or 0.92 of the salary component.
    • 4.7 For laboratory-based projects, for all Faculties other than the Faculty of Engineering, the UOW Cost Recovery and Faculty Cost Recovery includes a calculation using 120% of the salary component of the project. However, the additional 2 0% fee is not charged to the client (i.e. only the increase in Faculty and UOW Cost Recovery is charged to the client). This is to cover the additional Faculty and UOW costs of maintaining, refurbishing and constructing such facilities. For the Faculty of Engineering, laboratory-based projects include a Cost Recovery based on 1.25 of the salary component. This fee is charged to the client.
  • 5. GST
    • 5.1 All domestic consultancy and contract research activities will attract the Goods and Services Tax (GST). This cost must be added to the total fee that is intended to be charged to the client. ICR can obtain and provide advice regarding GST charged on projects performed offshore.

12 Management of Commercial Research Income: Accounts and Invoicing

  • 1. Once the formal agreement with the client has been signed, the Commercial Analyst (or equivalent) within Financial Services will organise an account for the project. All fees payable to a Unit and Faculty from commercial research will be credited to the accounts nominated by the relevant Faculty Finance Officer.
  • 2. Once a milestone has been reached, academic staff members must send a signed Commercial Research Invoice Request Form to the Commercial Analyst (or equivalent) within Financial Services. Financial Services will then generate an invoice to be sent to the client. For projects where the first payment is due upon signing of the commercial research agreement, the Commercial Analyst (or equivalent) will raise the invoice automatically and a Commercial Research Invoice Request Form will not be required for that payment.
  • 3. Staff members must send project reports to the Commercial Analyst (or equivalent) within Financial Services if required by the client, at the same time that they send the Commercial Research Invoice Request Form to Financial Services. Financial Services will then send out a copy of the report together with an invoice to the client. Where this is not possible, the staff member must provide written confirmation that project milestones or deliverables have been completed to the satisfaction of the client. This confirmation is required before Financial Services can raise an invoice.
  • 4. The nature of expenditure that should be made from contract research and consultancy accounts is detailed in UOW’s Consultancy Expense Guidelines.
  • 6. Contract Research
    • 6.1 Funds from contract research must be placed in individual research accounts or faculty/unit accounts and must not be taken as individual payment without the prior written approval of the Dean and Deputy Vice-Chancellor (Research and Innovation).
  • 7. Consultancies
    • 7.1 For this category of commercial research, the total income may remain in UOW consultancy accounts to be used for commercial research purposes, or payment may be made to individual staff members. Should a staff member choose personal payment, a Commercial Research Private Payment Form will need to be signed by their Dean and sent to the Commercial Analysts (or equivalent) within Financial Services. Appropriate tax and statutory on costs will be deducted.
  • 8. Licensed Consultancies
    • 8.1 Monthly reports on licences consultancy activity must be provided to ICR using the Licensed Consultancy-Monthly Report Form. Income from licensed consultancies will be entered into nominated unit/faculty accounts. The UOW cost recovery will be charged at the contract research equivalent rate (versus the higher consultancy rate).

13 UOW Reporting on Commercial Research

  • 1. All commercial research will be registered and reported on in accordance with UOW’s Guidelines for Commercial Activities. This process is managed by Financial Services. Regular reports will also be provided by Financial Services to the Deputy Vice-Chancellor (Research and Innovation), Deans and ICR.

14 Commercial Research Protection and Indemnity

  • 1. Staff members engaged in UOW approved commercial research, supply of equipment and minor external work will be:
    • 1.1 covered by UOW’s General and Products Liability Protection and other protection, subject to the exclusions in the respective policies and the circumstances giving rise to a claim;
    • 1.2 entitled to use UOW’s reputation including its name, letterhead and staff titles (e.g. professor, Dean), provided that UOW’s reputation is not misused; and
    • 1.3 entitled to use UOW’s resources, such as technical or secretarial staff, equipment, administration and telephone, provided that UOW is reimbursed for the cost of using those resources.
  • 2. Staff members undertaking private consultancies will not be underwritten by UOW.

15 Risk Assessment and Management

  • 1. Prior to signing an agreement with the client, UOW must assess the risk of undertaking the commercial research activity. Risks to UOW can fall into the following broad categories:
    • 1.1 legal risks (eg. risk of litigation);
    • 1.2 risks to reputation (ie. risk of being associated with projects/clients with a poor public image);
    • 1.3 business risks (eg. risk of under-costing the work or risk of not being paid by the client); and
    • 1.4 WHS risks (ie. risk of injury).
  • 2. The risk to UOW is assessed by ICR and UOW Legal Services. However, ICR and Legal Services are not always in the best position to identify specific risks for individual projects. Therefore, staff members are required to identify any specific risks that they anticipate will arise from performing their specific project. To assist in this process, a Commercial Research Risk Indicator list (Appendix 1) has been prepared.
  • 3. If there is no effective and efficient means of managing the risks associated with a particular project, UOW reserves the right to not approve a particular project to be run under its auspices.

16 Intellectual Property Arising from Commercial Research

    • 1. During the course of a commercial research project, the staff member may develop intellectual property (IP). Processes for management of IP are detailed in UOW’s Intellectual Property (IP) Policy Framework.

17 Management of Private Consultancies

    • 1. UOW must be expressly and specifically dissociated from private consultancies. It must be clearly understood by the external client that UOW accepts no responsibility for the consultancy work of a staff member when that staff member is undertaking a private consultancy.
    • 2. Staff members should consider UOW’s Code of Conduct (Staff), particularly in relation to secondary employment and conflicts of interest when considering undertaking a private consultancy.
    • 3. Staff members undertaking private consultancies should have their own professional indemnity protection covering all liability arising from performing services in relation to the proposed private consultancy. UOW reserves the right to obtain evidence of compliance with this provision.
    • 4. Time spent on private consultancies must not interfere with the time commitment of duties and responsibilities associated with the staff member’s employment with UOW.
    • 5. Prior to undertaking a private consultancy, staff members must ensure that their Head of Unit/School is advised of the activity and confirms that;
    • 5.1 UOW facilities ((including power, space, equipment) will NOT be used for the consultancy (unless it can be demonstrated that the use of such facilities will be undertaken on the basis of full cost recovery under the terms of a written agreement between the staff member and UOW).
    • 5.2 that the relevant Dean has no objection to the staff member carrying out the private consultancy (such confirmation from the Dean must be in writing);
    • 5.3 UOW letterhead, stationery, business cards, staff titles (eg. Professor, Lecturer), postal address, phone number, fax number, e-mail address or Web address will NOT be used, nor any other information which might associate UOW with the private consultancy in any manner;
    • 5.4 UOW is expressly and specifically dissociated from the private consultancy, including a clear disclaimer in all oral and written communication between the academic staff member and the client. UOW reserves the right to obtain evidence of compliance with this provision. A statement such as the following should be considered “This work is wholly unconnected and separate from the University of Wollongong and is provided strictly in my private capacity”;
    • 5.5 no administrative or technical area of UOW (including, but not limited to, Financial Services, Human Resources and Legal Services) will provide services for the private consultancy;
    • 5.6 an annual declaration is completed for all private consulting activities undertaken during the course of the past twelve months, including nil returns. This must be submitted to the Dean through the Head of Unit/School. Staff who fail to register a private consultancy will be considered to have breached this policy and to be acting outside of established UOW rules and regulations.

18 Management of Minor External Work

    • 1. There are some outside activities that only involve use of UOW facilities in accordance with normal office use, which may or may not have some modest financial reward to the staff member, and are regarded as a normal part of the staff member’s academic activity. These include occasional lectures and broadcasts, external examining and external assessment committees for other universities or other funding agencies, and journal article review fees. Where the fees for work of this nature do not exceed $2,000, such fees may be taken as private payment subject to normal tax laws, or put into a UOW consulting account. These payments will not incur a UOW Cost Recovery amount and will not go through the ICR process. They should be managed at the Faculty level if being put into a consulting account.
    • 2. Where fees for such work exceed $2,000, academic staff members must advise their Head of Unit and Dean. Depending on the complexity of the arrangements if these are paid into a UOW account, these may incur the UOW Cost Recovery amount. The Deputy Vice-Chancellor (Research and Innovation) must be informed of any such activities that might be of special interest.

19 Management of Supply of Equipment/Devices/Material and Receipt of Materials

    • 1. Sometimes staff members may be asked to supply items of equipment/devices or materials that they have made/developed, to clients. Such items may include:
    • 1.1 equipment/devices/material for research purposes (eg. dosimeters to be used in non-human research);
    • 1.2 equipment/devices/material for testing purposes (eg. knee sleeves that are not classified as medical devices for testing in human training programs); and/or
    • 1.3 equipment/devices/material for commercial purposes (eg. an intelligent polymer material for use in the production of a battery).
    • 2. Supply of such items does not in itself involve consulting or contract research but does present a risk to UOW (in terms of liability, eg. manufacturer’s liability) and will normally involve a financial exchange (ie. payment for the equipment/device/material). Therefore, UOW will manage the approval of such activities as if these activities were consulting activities. This means that when items are to be supplied to clients, the Commercial Research Approval Form and Commercial Research Costing Pro Forma must be prepared and the processes detailed in Sections 4 to 12 above (including the requirement for an agreement to be in place) must be followed as if the work was a consulting project.
    • 3. Where UOW is to receive materials via a Materials Transfer Agreement, such activities will also be managed as if they were consulting activities. The staff member will not have to fill in an Approval Form or Costing Pro Forma but ICR will manage the legal and commercial negotiations with the client and obtain legal advice on the contract from Legal Services.
    • 4. Note that the client’s use of UOW equipment, located on UOW premises, will constitute a consultancy but the supply of equipment to a client does not. The process of developing an item of equipment/device or material may involve commercial research activities but once the equipment/device/material has been developed and it is merely being supplied, it no longer involves commercial research

20 Non-Compliance with this Policy

    • 1. Failure to follow correct procedures and/or obtain formal approval prior to the commencement of a commercial research project may result in a staff member NOT being covered by UOW’s General and Product Liability and Professional Indemnity protections and other protection outlined in UOW policies. In such circumstances, the staff member may be personally liable for any damages claimed in connection to the project.
    • 2. In the event of non-compliance with the provisions of this policy, staff members will be dealt with pursuant to the provisions of their relevant workplace agreement.

21 Fraudulent Practices

    • 1. Staff members participating in commercial research and their managers and supervisors are responsible for ensuring adequate controls are exercised so that commercial research is not undertaken fraudulently or for corrupt purposes. Staff members should refer to UOW’s Corruption Prevention Policy for further information on their role in relation to corruption prevention.

22 Conflicts of Interest

    • 1. Staff members must refer to UOW’s Code of Conduct (Staff), Secondary Employment Policy and Conflict of Interest Policy. Staff members are not permitted to undertake any commercial research that is in conflict with the interests of UOW. Conflicts of interest arising from third party funding must also be considered in the context of research reporting (ie. the reporting of research outcomes must be unbiased and objective).

23 Unacceptable Consequences

    • 1. Any commercial research that involves a staff member placing his or her personal interests above those of UOW is not acceptable under this Policy.
    • 2. Commercial research activities must not:
    • 2.1 divert resources (human or material) from the central research, teaching and administrative functions of UOW;
    • 2.2 contribute to an increased workload or inequitable workload distribution amongst other staff members;
    • 2.3 contribute to increased casualisation of employment (through employment of casual staff for multiple short-term projects);
    • 2.4 disproportionately undermine the intellectual freedom or IP rights of staff members and UOW;
    • 2.5 present a conflict of interest (see Section 22 above);
    • 2.6 Jeopardise UOW’s reputation or legal status; or
    • 2.7 Involve engaging in unlawful or unethical practices or work in breach of relevant NSW and Commonwealth laws.

24 Roles & Responsibilities

    • 1. It is the responsibility of ICR to develop and review the communication strategy for this policy.
    • 2. It is the responsibility of ICR to negotiate the commercial terms of any agreements with UOW’s clients and to protect UOW’s IP and commercial position in consultation with Legal Services. It is also ICR’s responsibility to ensure that this is done in a timely manner.
    • 3. It is the responsibility of Heads of Unit/School and Supervisors, prior to signing the Commercial Research Approval Form, to ensure staff members have the appropriate skills and capabilities to perform the relevant commercial research and the time to do so.
    • 4. It is the responsibility of staff members participating in commercial research to ensure:
    • 4.1 UOW is adequately protected by complying with this policy;
    • 4.2 a reasonable time for preparing and negotiating commercial research agreements is factored into the project’s timelines - a minimum of two weeks’ notice to ICR is normally required;
    • 4.3 UOW is properly compensated for use of its resources and that any major purchases required to perform the project have been included in the charges to the client (ie. are not expected to be covered by the Faculty or UOW);
    • 4.4 UOW resources are not used for private purposes;
    • 4.5 identification of any potential risks using the Commercial Research-Risk Indicators document; and
    • 4.6 any actual or potential conflicts of interest are properly declared and managed.

25 Version Control and Change History

Version Control

Date Effective

Approved By

Amendment

1

26 November 2004

University Council

New Policy

2

11 September 2007

Administrative Committee

Revised Policy. Incorporation into Policy template.

3

6 May 2009

Vice-Principal (Administration)

Migrated to UOW Policy Template as per Policy Directory Refresh

4

4 February 2010

Deputy Vice-Chancellor (research)

Review by Director of Commercial Research. No changes required and new review date set.

5

18 August 2010

N/A

Policy Custodian position title and email address changed to reflect new role.

6

21 June 2011

Vice-Principal (Administration)

Updated to reflect change of name from Wollongong College Australia to UOW College

7

16 January 2012

Deputy Vice-Chancellor (Research)

Updated to reflect name change from Commercial Research Unit to Innovation and Commercial Research.

8

30 November 2012

Vice-Principal (Administration)

Updated to reflect change from OHS to WHS.

9

6 September 2016

Deputy Vice-Chancellor (Research and Innovation)

Updated policy Custodian and Division responsibility to reflect structural change.

10

22 August 2017

Deputy Vice-Chancellor (Research & Innovation)

Updated to reflect UOW Policy Template, UOW definitions, Division titles and supporting documents with links.

Appendix 1: Commercial Research- Risk Indicators

  • 1. Prior to signing a contract with a client, to undertake commercial research or to supply equipment/devices, UOW must assess the risk of undertaking this work. Some of these risks will be assessed by UOW without the researcher’s input (e.g. protection issues, indemnities, legal jurisdiction). However, the identification of other risks will require the input of the UOW researchers involved in the proposed project.
  • 2. Some of the situations/activities that will present risk to UOW, for which the UOW researcher is in a good position to identify that they are likely to occur, are listed below. It is important that UOW staff disclose (in the Commercial Research Approval Form) any of these risks that are likely to occur in their proposed project.
  • R1: The work involves undertaking clinical trials*.
  • R2: UOW is going to use or access intellectual property (IP) that is owned by a third- party.
  • R3: There is an actual or potential conflict of interest involved in undertaking the project.
  • R4: Key staff members are likely to leave UOW’s employment during the course of the project.
  • R5: UOW staff members will be visiting environments or performing activities whilst undertaking the project that may cause harm or injury to people or equipment.
  • R6: The project will involve UOW students.
  • R7: There is potential for UOW to breach the confidentiality of the Client.
  • R8: There is potential for the Client to breach UOW’s confidentiality.
  • R9: The project involves unlawful activities.
  • R10: The project will involve testing or trialling involving human subjects.
  • R11: The project will involve testing or trialling involving non-human animals.
  • R12: The project involves UOW intellectual property (IP) that has been assigned or licensed to a third party.
  • R13: The application of the project results will be have physical consequences on human subjects.
  • R14: Participation in the project may expose the UOW researcher(s) to radiation, radioactive materials, biological hazards, etc.
  • R15: UOW’s reputation will possibly be damaged as a result of participating in this project.
  • R16: Other potential risks as identified by the UOW researcher(s).
  • 3. *Clinical trial is defined as:
  • 3.1 a study or research involving humans to a) find out whether an intervention, such as treatments or diagnostic procedures, which is believed may improve a person's health, actually does so; or b) to test a drug, a surgical or other therapeutic or preventative procedure or a therapeutic, preventative or diagnostic device or service; where the nature of the study or research is such that it requires the investigator or an assistant to be a registered medical practitioner or other registered qualified health service provider; OR
  • 3.2 research involving humans requiring any invasive procedure (other than ingestion of food or drink or taking of blood samples) to be undertaken by a registered medical practitioner or other registered qualified health service provider. For the purpose of this definition, “invasive procedures” means any procedure involving ingestion, application or admission of any substance or material onto or into a human’s body.
  • 4. RISK MANAGEMENT
  • 4.1 Once one or more of the above risks have been disclosed as applying to a project, ICR will contact the staff member. Together, and with advice from Legal Services and the UOW delegate, a strategy will be developed to minimise or mitigate the risk. This may include a technical (e.g. design) solution or a legal (e.g. indemnity requirement in the contract) solution. UOW reserves the right to disallow high risk projects from being undertaken under UOW’s auspices.

Appendix 2: DEST Definition of Research

  • 1. The essential characteristic of research activity is that it leads to publicly verifiable outcomes that are open to peer appraisal. Research and experimental development comprises:
    • ⋅ creative work undertaken on a systematic basis in order to increase the stock of knowledge, including knowledge of humanity, culture and society, and the use of this stock of knowledge to devise new applications.1
    • ⋅ any activity classified as research and experimental development is characterised by originality; it should have investigation as a primary objective and should have the potential to produce results that are sufficiently general for humanity's stock of knowledge (theoretical and/or practical) to be recognisably increased. Most higher education research work would qualify as research and experimental development.
  • 2. Research includes pure basic research, strategic basic research, applied research and experimental development.
  • 3. Activities that support research such as:
    • ⋅ provision of professional, technical, administrative or clerical support and/or assistance to staff directly engaged in research and experimental development;
    • ⋅ management of staff who are either directly engaged in research and experimental development or are providing professional, technical or clerical support or assistance to those staff;
    • ⋅ activities of students undertaking postgraduate research courses;
    • ⋅ development of postgraduate research courses; and
    • ⋅ supervision of students undertaking postgraduate research courses.
  • meet the definition of research.
  • 4. Activities that do not support research should be excluded. Such activities may include:
    • ⋅ preparation for teaching;
    • ⋅ scientific and technical information services;
    • ⋅ general purpose or routine data collection;
    • ⋅ standardisation and routine testing;
    • ⋅ feasibility studies (except into research and experimental development projects);
    • ⋅ specialised routine medical care;
    • ⋅ commercial, legal and administrative aspects of patenting, copyright or licensing activities; or
    • ⋅ routine computer programming, systems work or software maintenance
  • 5. Research and experimental development into applications software, new programming languages and new operating systems would normally meet the definition of research.
  • OECD Definition of “research and development”.

1 OECD Definition of “research and development”.

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