Under your Skills Assure Supplier (SAS) Agreement, you must obtain written consent from the Department of Trade, Employment and Training prior to proceeding with any change in control (in accordance with clause 28.1); or assigning or novating your interest in the SAS Agreement (in accordance with clause 30.9).

If you have any questions about the change in control process, including the types, and if you need consent, contact your Contract Manager at contractmanagement@desbt.qld.gov.au.

What is a change in control

Under clause 28.1 of the SAS Agreement you must obtain our written consent prior to:

  • change in control* of the SAS
  • transfer of any legal or beneficial interest in any shares of the SAS
  • change to the SAS' director/s or secretary
  • change to key personnel*
  • or
  • change to the SAS' constitution.

*Definitions

Control has the meaning given to it in the Corporations Act 2001 (Cwlth).

Key personnel means an individual who:

  • is concerned in or takes part in the management of the SAS
  • is an employee or agent of the SAS with duties of such responsibility that his or her conduct may fairly be assumed to represent the Supplier in relation to its business
  • exercises a degree of control or influence over the management or direction of the SAS including those who participate in making decisions that affect the business of the applicant or who has the capacity to significantly affect the future operations and financial standing
  • and
  • has the ability or capacity to determine the outcome of decisions about the financial and operating policies of the SAS.

There are 2 types of change in control.

Consent to a standard change in control must be sought when you intend to make a change in accordance with clause 28.1 of your SAS Agreement. Examples include, but are not limited to:

  • any changes to the legal name of the entity
  • any changes to the ABN/ACN
  • any conversion of legal entity from an Incorporated Association to a Company
  • any changes to directors or secretaries (however, if a change affects 50% or more of directors, this is a major change in control)
  • any minority changes to shareholdings, including sale of shareholdings, changes to share structure and issuance of new shares (however, if the change affects the majority of shareholders, this is a major change in control)
  • any changes in management that fall into the definition of key personnel
  • any changes to company constitution.

A major change in control occurs when the SAS:

  • sells its business or company
  • changes the majority of its shareholders and/or directors.

Incoming parties (either shareholder or purchaser) must:

  • have a minimum 2 years' trading history
  • and
  • provide detailed background information, to be used by us to conduct due diligence enquiries of the incoming party.

You will be solely liable for any legal and administrative costs that may be incurred by us in considering an application for a major change in control. We may request more information depending on the circumstance, including execution of a deed by you.

Note: We are unable to provide legal, company or tax advice and you should seek external advice as required.

Notifying us

Once you have identified your proposed change in control as either standard or major, complete the appropriate form and submit by email to contractmanagement@desbt.qld.gov.au.

Standard change in control

Major change in control

Depending on the nature of the change in control, the form will specify supporting documentation that must be submitted along with the completed form.

Notification to us of changes in control is not an automatic guarantee that consent will be provided. Failure to obtain our consent prior to making a change in control will result in a breach of your SAS Agreement (under clause 28). More information may be requested, or conditions imposed on the provision of consent, depending on the circumstance. You must wait until you receive written consent from us before proceeding with relevant changes.

Following consent of the changes from us, you may be required to:

Change in control exemptions

Under clause 28.4 of the SAS Agreement, certain SAS are exempt from the requirement to seek our consent prior to a change in control. However, you are still required to immediately notify us in writing of any change in control including full details of the change.

Clause 28.4 applies if the SAS is:

  • a company listed on the Australian Stock Exchange
  • both before and after a change of control, the wholly owned subsidiary of a company listed on the Australian Stock Exchange
  • or
  • another entity to which we have given notice in writing that it is not required to comply with clause 28.1.

What happens if a change in control occurs without our consent

If our consent is not obtained prior to a change in control which falls within the definition of clause 28.1 or 30.9 of the SAS Agreement, the SAS may have committed an event of default under the SAS Agreement in accordance with clause 20.2(b)(ii)I and 20.2(b)(ii)K, respectively.

Clause 21.3 of the SAS Agreement provides that "If the Department reasonably suspects that an Event of Default has occurred, the Department may Suspend Funding for the Suspension Period and/or issue a directive to the Supplier under clause 21.1(c) to cease enrolments for the Suspension Period to allow the Department to investigate and make a determination as to whether there has been an Event of Default."

If a change in control occurs without our consent, you may be issued with a Notice of Default and have your funding suspended until the event of default has been investigated and we have considered the change in control.

More information

Last updated 19 November 2024

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