Fair Trading (Code of Practice-Fitness Industry) Regulation 2003 - Queensland

Service summary

The policy objectives of the code are to:

  • ensure appropriate standards of trading are maintained in the fitness industry
  • promote client confidence in the fitness industry
  • ensure fitness services are supplied to clients in an ethical and professional way, taking into account the interests of clients
  • establish rights and obligations between suppliers and clients for: fitness services offered and supplied; and the disclosure of relevant information to clients entering into agreements for fitness services.

The Fitness Industry Code of Practice covers the following areas:

Preliminary provisions;

General rules of conduct;

Disclosure and confidentiality;

Membership agreements;

  • interpretation
  • suppliers obligations before entering into membership agreements
  • requirements for membership agreements
  • types of membership agreements
  • entering into membership agreements before fitness centre opens
  • terminating membership agreements

Complaints handling procedures.

The code has been developed to ensure consumer protection by regulating the contractual conduct of providers of fitness services. Gym and fitness centre closures in recent years have resulted in consumers losing significant amounts of money in prepaid memberships, including memberships of up to five years in length.

The objectives will be achieved by including in the code the following key features to ensure fair dealing between fitness suppliers and consumers:

  • introduction of a 48 hour cooling off period for clients entering into membership agreements;
  • an obligation on suppliers to disclose all fees in writing to prospective clients before a membership agreement is made;
  • a requirement for membership agreements to be in writing and signed by the client and the supplier;
  • a prohibition on a supplier receiving more than one years fees, where membership agreements are for longer than one year;
  • where a membership agreement is made before the fitness centre opens, a prohibition on suppliers collecting any fees until the centre commences to operate. The client's cooling off period commences from the time the centre opens.
  • provision for membership agreements to be terminated during the cooling off period or because a client suffers permanent incapacity. Fees paid will be refunded less an administration fee (capped at the lesser of $75.00 or 10 per cent of the membership fee) and fees for services already provided.
  • the termination of membership agreements by written notice from a client.

Service type

Code of Practice

A code of practice can be either a legal requirement or non-legal requirement. Legal codes of practice are defined as a result of legislation. Non-legal codes of practice are defined by industry regulators and bodies.

Definition of terms

Administration fee

the fee (which must be disclosed) if the client terminates the agreement during the cooling-off period or because of the client's permanent sickness or physical incapacity.

Casual client

Defined to mean a person who has not entered into membership agreement with a supplier and pays the supplier for a fitness service at a fitness centre each time the service is used.

Client

defined to mean a person who is not a casual client and either is supplied with a fitness service by a supplier or enters into a membership agreement with a supplier or makes enquiries with a supplier or employee of a supplier at a fitness centre about entering into a membership agreement with the supplier.

Cooling off period

a period of time which ends 48 hours after it commences.

Exercise Consultation

means a questionnaire or fitness assessment completed before or after exercising.

Fitness centre

defined to mean an indoor facility owned, leased or used by a supplier at which the supplier provides fitness equipment and primarily conducts the business of supplying fitness services.

Fitness equipment

defined to mean apparatus used in the supply of fitness services, including for example, free weights and rowing machines.

Fitness service

A service including an exercise consultation, a supervised or unsupervised individual fitness program, a group exercise program, a fitness program and fitness equipment at a fitness centre for use by clients. Does not include any of the following:

  • a service supplied by
    1. a doctor in the course of the doctor's profession
    2. a physiotherapist registered under the Physiotherapists Registration Act 2001 in the course of the physiotherapist's profession
    3. a sporting club or organisation, for the playing of, or training, for a competitive sport
    4. an educational institution, as part of the institution's curriculum
  • if no other fitness service is supplied
    1. the use of a spa bath, sauna bath, swimming pool or similar facility
    2. fitness equipment at a fitness centre attached to a hotel for use by a person staying at the hotel
    3. a service at a fitness centre for the sole purpose of medical rehabilitation
  • a service for an unsupervised outdoor activity
  • the hire of a court or other facility for playing sport.
Membership agreement

defined to mean an agreement between a supplier and a client for the supply of fitness services by the supplier to the client at a fitness centre.

Membership fee

a fee which must be disclosed in the agreement.

New opening day

defined to mean the day a fitness centre opens, if that day is different from the proposed opening day.

Opens

means when the fitness centre starts operating.

Permanent sickness or physical incapacity

defined to mean the client is sick or physically incapacitated for the greater of the remainder of the term of the membership agreement or five years.

Proposed opening day

means the day advised by a supplier to a client before the fitness centre opens as the day the centre would open.

Supplier

defined as a person who is in the business of supplying fitness services. A note advised that pursuant to section 36 of the Acts Interpretation Act 1954, a person is defined to include an individual and a corporation. To assist with interpretation the definition includes examples of a supplier and persons who are not suppliers.

Termination fee

defined as a fee for terminating the agreement if the client terminates other than during the cooling-off period or because of the client's permanent sickness or physical incapacity.

Lodgement

Comply

Compliance Mechanisms and Penalties

Compliance with the code is mandatory for all suppliers of fitness services.

Without limiting the above, the supplier must comply with the code even though:

  • a client asks the supplier to do something contrary to the code; or
  • if a supplier is an employee, the supplier's employer asks the supplier to do something contrary to the code.

The code covers-

General Rules of Conduct:

  • claiming membership or endorsement
  • high pressure tactics, harassment or unconscionable conduct
  • soliciting through false or misleading advertisements or communications
  • signs at fitness centre.

Disclosure and Confidentiality requirements:

  • disclosure of information about fitness services
  • availability of code
  • disclosure of information about fitness centre
  • confidentiality.

Membership Agreements:

  • meaning of cooling-off period
  • disclosure of fees
  • membership agreement to be in writing and signed
  • what a membership agreement must state
  • fitness services offered under membership agreement
  • limitation on membership agreement of more than one year
  • on-going agreement
  • membership agreement allowed
  • no fee payable until fitness centre opens
  • notifying clients of opening of fitness centre
  • terminating membership agreement during cooling-off period
  • terminating membership agreement because of sickness or incapacity
  • other termination of membership agreement.

Complaints Handling Procedures:

  • complaints by client
  • complaints handling procedures.

Breach of the code will expose a supplier to enforcement provisions contained in the Fair Trading Act 1989, including enforceable undertakings, injunctions and orders for compensation.

Contravention of this code is a ground for:

  • seeking an undertaking under the Act, section 91I;
  • obtaining an injunction under the Act, section 98;
  • seeking an order for compensation or other remedial order under the Act, section 100.

Examples of harassment:

  • using, or getting a third party to use, threatening or intimidating language or behaviour towards a client.
  • engaging in conduct that would make an ordinary person feel unwittingly compelled to comply with a supplier's request or demand.

Examples of unconscionable conduct:

  • taking unfair advantage of a supplier's superior bargaining position relative to a client
  • requiring a client to comply with conditions not reasonably necessary for the protection of a supplier's legitimate interests
  • if it is reasonably apparent a client cannot understand relevant documents, taking unfair advantage of the client's lack of understanding
  • exerting undue influence or pressure on, or using unfair tactics against, a client.

A supplier must not tell a client a reward or gift is free if the fitness services to which it relates is increased in price or decreased in quality because of the reward or gift. A supplier must also take reasonable steps to ensure an employee does not tell this to a client.

Examples of signs at fitness centre:

  • display in a prominent position on the reception counter
  • display at eye level on a wall that clients view on first entering the fitness centre.

Example of when information must be lawfully used or disclosed:

  • to comply with legal processes.

Additional information

As a fitness service provider, you must display health risk warning signs under the Fair Trading (Code of Practice-Fitness Industry) Regulation 2003. These signs must be clearly visible to any person entering the fitness centre.

An electronic copy of the signs is now available for you to download from the Office of Fair Trading website, there are two designs to choose from. More information about the obligations of fitness providers under the Regulation is on the Fair Trading website www.fairtrading.qld.gov.au.

Administering agency

Department of Justice and Attorney-General
Office of Fair Trading
Fair Trading Policy Branch

Contact details

Queensland Government Service Centre
Department of Justice and Attorney-General
Office of Fair Trading
Fair Trading Policy Branch

Operating address:
Upper Plaza Terrace
33 Charlotte Street
Brisbane, Queensland 4000
Mailing address:
GPO Box 3111
Brisbane, Queensland 4001

Phone:

07 3405 0985

Phone:

13 QGOV (13 74 68)

Supporting information

Disclaimer

The information contained on the Australian Business Licence and Information Service (ABLIS) web site, or via packages or other sources is intended for general guidance only.

To the full extent permitted by law, the Federal, State, Territory and Local Governments make no representations or warranties (expressed or implied) in relation to the information, including its accuracy, currency or completeness.

The business information provided does not constitute professional or legal advice, nor is the use of any third party resource an endorsement of the information contained, the associated organisation, product or service. It is recommended that you obtain appropriate professional and /or independent legal advice to ensure that the material provided here is relevant to your particular circumstances.

To the full extent permitted by law the Federal, State, Territory and Local Governments, their employees and agents do not accept any liability for any reason, including without limitation, liability in negligence, to any person for the general information which is provided herein, or in respect of anything, including the consequences of anything done, or not done, by any such person in whole or partial reliance upon the information.