Fair Trading (Fitness Industry Interim Code) Regulations 2017 (WA)
Western Australia
Fair Trading Act 2010
These regulations expired as at 31 December 2017 (see r. 4).
Western Australia
Fair Trading Act 2010
These regulations are the
These regulations come into operation as follows —
(a) regulations 1 and 2 — on the day on which these regulations are published in the
Gazette ;(b) the rest of the regulations — on the day after that day.
(1) In this regulation —
(2) The Code of Practice set out in Schedule 1 and entitled the
Fitness Industry Code of Practice 2017 is prescribed under section 46(1) of the Act as an interim code of practice that applies in relation to clients and suppliers of fitness services.
These regulations expire on the day that is 6 months after the day this regulation comes into operation under regulation 2(b).
[r. 3(2)]
Note for this Schedule:
A person bound by this Code should be familiar with the requirements contained in other applicable legislation including but not limited to — health legislation, occupational health and safety legislation, misuse of drugs legislation, trade practices and consumer protection legislation, privacy legislation and equal opportunity legislation.
The objectives of this Code are to —
(a) ensure appropriate standards of service are maintained in the fitness industry; and
(b) encourage and maintain consumer confidence in the fitness industry; and
(c) support and promote the fitness industry.
In this Code —
(a) is, or was, supplied with a fitness service by a supplier; or
(b) enters into, or has previously entered, a membership agreement with a supplier; or
(c) makes enquiries, or has previously made enquiries, with a supplier or an employee of a supplier at a fitness centre about entering into a membership agreement with the supplier;
(1) A fitness service includes —
(a) exercise screening; or
(b) an individual exercise programme; or
(c) a group exercise programme; or
(d) provision of fitness equipment at a fitness centre for use by clients.
(2) A fitness service does not include —
(a) a fitness service supplied by —
(i) a person registered under the
Health Practitioner Regulation National Law ( Western Australia ) in the medical profession; or(ii) a person registered under the
Health Practitioner Regulation National Law ( Western Australia ) in the physiotherapy profession; or(iii) a sporting club or organisation, for the playing of, or training for, a sport; or
(iv) an educational institution for exclusive use by staff or students; or
(v) a person for the performance of, or training for, martial arts, dancing or ballet;
or
(b) where no other fitness service is supplied — the use of a spa bath, sauna bath, swimming pool or similar facility; or
(c) a fitness service at a fitness centre provided for the sole purpose of medical rehabilitation; or
(d) the hire of a court or other facility for the playing of sport.
(1) This Code contains provisions relating to the fitness industry with which a supplier must comply.
(2) Without limiting subclause (1), the supplier must comply with this Code even though a client asks the supplier to do something contrary to this Code.
Note for this clause:
Contravention of this Code is a ground for —
(a) seeking an order that the person cease contravening the Code under the
Fair Trading Act 2010 section 47;(b) seeking an order that the person rectify any consequence of that contravention under the
Fair Trading Act 2010 section 47;(c) obtaining an injunction under the
Fair Trading Act 2010 section 100;(d) seeking an order for compensation or another remedial order referred to in the
Fair Trading Act 2010 section 105.
(1) A supplier must not falsely claim to be a member of, or be endorsed by, an organisation or association.
(2) A supplier must take reasonable steps to ensure an employee of the supplier does not falsely represent the employee or the supplier as being a member of, or endorsed by, an organisation or association.
(1) A supplier must not misrepresent qualifications held by the supplier or employees of the supplier.
(2) A supplier must take reasonable steps to ensure an employee does not falsely represent the qualifications held by the employee or the supplier.
(1) A supplier must not engage in high pressure selling techniques, harassment or unconscionable conduct for the purpose of entering into a membership agreement with a client.
(2) A supplier at a fitness centre must take reasonable steps to ensure an employee of the supplier does not engage in high pressure tactics, harassment or unconscionable conduct for the purpose of entering into a membership agreement with a client.
(1) A supplier must not solicit clients through false or misleading advertisements or other representations or statements that the supplier knows are false or misleading.
(2) A supplier at a fitness centre must take reasonable steps to ensure an employee of the supplier does not solicit clients through false or misleading advertisements or other representations or statements that the supplier knows are false or misleading.
(1) A supplier must not use, or disclose to another person, confidential information about a client obtained under the client’s membership agreement.
(2) Subclause (1) does not apply to information —
(a) that is used or disclosed for a purpose authorised in writing by the client; or
(b) that is otherwise lawfully used or disclosed.
A supplier must not describe part of a membership as free or discounted if any programme offered in relation to the membership is increased in price, decreased in quality or is restricted in any manner as a result of the discounted price.
A supplier must —
(a) ensure sufficient information is made available to a client about a fitness service to enable the client to make an informed decision about using the fitness service; and
(b) ensure promotional material about a fitness service —
(i) is truthful, accurate and unambiguous; and
(ii) does not encourage unrealistic expectations of outcomes attainable from the fitness service;
and
(c) not knowingly make false or misleading comparisons with a fitness service supplied by another supplier; and
(d) not make any false or misleading statements or representations relating to the cost of a fitness service; and
(e) have available a copy of this Code for perusal by any client or potential client.
Before a supplier enters into a membership agreement with a client, the supplier must —
(a) give the client the opportunity to peruse a copy of the membership agreement and the rules (if any) of the fitness centre; and
(b) in the case of a fitness centre that has commenced operating, allow the client the opportunity to inspect the fitness centre.
(1) The cooling off period, for a client entering into a membership agreement with a supplier, starts —
(a) where the client enters into the agreement before the fitness centre opens —
(i) if the fitness centre opens on the proposed opening day — on that day; or
(ii) if the fitness centre opens on a new opening day and the fitness centre has not opened at the time the supplier notifies the client of the new opening day — on the new opening day; or
(iii) if the fitness centre opens on a new opening day and the fitness centre has already opened at the time the supplier notifies the client of the new opening day — on the day the client receives notice that the fitness centre has opened;
or
(b) where the client enters into the agreement with the supplier after the fitness centre opens — the day the client enters into the agreement with the supplier.
(2) The cooling off period ends 48 hours after the cooling off period starts.
A supplier must ensure a membership agreement is —
(a) in writing; and
(b) dated and signed by the client.
(1) A supplier entering into a membership agreement with a client must ensure the agreement contains the following details —
(a) the supplier’s name and address;
(b) in the case of a supplier that is a company, the supplier’s Australian Company Number (ACN);
(c) the supplier’s and client’s rights and obligations under the agreement;
(d) the fitness service(s) to be provided under the agreement;
(e) a statement in bold 14 point type that the agreement is subject to a 48 hour cooling off period;
(f) the procedure set out in clause 19 for terminating the agreement during the cooling off period;
(g) the date and time at which the cooling off period starts and ends;
(h) the circumstances (other than under clause 19) under which the client or supplier may terminate the agreement and the procedure for terminating the agreement;
(i) the administrative charge (if any) the client must pay to the supplier if the client terminates the agreement —
(i) during the cooling off period; or
(ii) for any other reason allowed by the agreement;
(j) all fees and charges payable under the agreement and, where separate fees are payable for a particular service, the amount of the fee or charge and the service to which the fee or charge relates;
(k) the method of payment;
(l) where the agreement is entered into before the supplier’s fitness centre opens — the proposed opening day;
(m) in the case of an ongoing agreement, the following statement in bold point type located in a box within the agreement —
(2) An
ongoing agreement means a membership agreement that does not end unless the client or the supplier terminates the membership agreement.
The supplier must provide a client with a true copy of the signed membership agreement immediately after it has been signed.
(1) This clause applies to a supplier who enters into a membership agreement with a client for a term of more than 12 months or an ongoing agreement.
(2) The supplier must not accept prepayment from the client of fees for a period greater than 12 months.
Where a lease on premises being used for a fitness centre has less than 12 months before it is due to expire without an option to renew the lease for a further period, a supplier must not sell or renew a membership agreement for a period that exceeds the unexpired period of the lease.
(1) A client may terminate a membership agreement without cause or reason during the cooling off period.
(2) The client terminates the agreement with the supplier by giving the supplier written notice of the termination.
(3) The supplier must refund to the client the fees and other amounts paid by the client to the supplier under the agreement, less —
(a) if the supplier has supplied a fitness service to the client and the client has not paid for the service — the cost of providing the service; and
(b) a reasonable administration charge (if any).
(4) The supplier must pay the refund to the client within 14 days of the client terminating the agreement.
(1) Where a supplier receives a request from a client to terminate a membership agreement (other than in relation to a termination to which clause 19 applies), the supplier must respond to the request within 7 days.
(2) The supplier must, as soon as practicable, make a record of the client’s termination request or cause the termination request to be recorded.
(1) A supplier must make every reasonable effort to resolve quickly and fairly a complaint made by a client about the supply of a service offered or provided under a membership agreement with the supplier.
(2) Information on how to lodge a complaint must be readily available to a client.
(3) A supplier must ensure that, in handling complaints —
(a) a record of the complaint is placed on file; and
(b) the receipt of the complaint is acknowledged within 7 days.
30 Jun 2017 p. 3621‑32 | r. 1 and 2: 30 Jun 2017 (see r. 2(a)); Regulations other than r. 1 and 2: 1 Jul 2017 (see r. 2(b)) | |
client................................................................................................................... Sch. 1 cl. 2
client, supplier.............................................................................................................. 3(1)
cooling off period............................................................................................. Sch. 1 cl. 2
exercise screening............................................................................................ Sch. 1 cl. 2
fitness centre.................................................................................................... Sch. 1 cl. 2
fitness equipment............................................................................................. Sch. 1 cl. 2
fitness service.......................................................................................... 3(1), Sch. 1 cl. 2
martial arts......................................................................................................... Sch. 1 cl. 2
membership agreement.................................................................................... Sch. 1 cl. 2
ongoing agreement......................................................................... Sch. 1 cl. 2 and 15(2)
person................................................................................................................ Sch. 1 cl. 2
supplier.............................................................................................................. Sch. 1 cl. 2
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