Fair Trading (Fitness Industry Code of Practice) Regulations 2020

The code organises its regulation around a set of definitional core concepts and regulatory tools. The primary definitional building blocks are client, supplier, fitness service, fitness centre, membership agreement, ongoing agreement, fixed‑term agreement, cooling‑off period, unpaid fee and termination fee (Sch. 1 cl. 2). These terms determine the code’s scope and the application of its substantive obligations.

Client is defined broadly to include people who have inquired about, been supplied with, or entered into a membership agreement for fitness services, and extends to persons on whose behalf a parent or guardian enters the agreement (Sch. 1 cl. 2). Supplier means a person carrying on the business of supplying fitness services, excluding employees of that person (cl. 2). Membership agreement excludes pay‑as‑you‑go arrangements where payment is made each time the client uses a fitness service; the code therefore targets recurring or prepaid contractual relationships (cl. 2). Ongoing agreement is an agreement with an initial term that continues after the initial term until the client terminates; fixed‑term agreement is defined as a membership agreement with a fixed term that does not continue (cl. 2). These definitions are central to how particular rules apply, for example caps on prepayment and the notice of end of initial term provisions apply to agreements of certain types (cls. 15, 17).

Fitness service is defined expansively to include appraisals, individual and group exercise programmes and the supply of fitness equipment at a fitness centre (cl. 4(1)). The code also explicitly excludes a number of activities or contexts from the definition, including services supplied by registered medical or physiotherapy practitioners where supplied in the course of their professions, sporting club training, educational institutions for exclusive use by staff or students, martial arts, dancing and ballet, use of certain pool/spa facilities where no other service is supplied, and services furnished solely for medical rehabilitation (cl. 4(2)). Those exclusions create carve‑outs which will be relevant to suppliers near the boundary between clinical rehabilitation or professional healthcare and commercial fitness services.

The code uses three regulatory techniques. First, prescriptive procedural and documentary duties. Examples are mandatory written form of membership agreements, signature requirements, the requirement for an agreement summary at the start of every membership agreement listing key items including fees and the cooling‑off statement (cls. 11-13). Second, behavioural prohibitions and “reasonable steps” obligations aimed at staff conduct, forbidding high‑pressure selling or harassment and requiring reasonable steps to prevent employees from engaging in that conduct, and requiring that suppliers do not use deceptive, misleading, false or unfair advertising or marketing (cls. 5-6). Third, economic limits and contract design constraints. These include a cap on prepayment of fees to no more than 12 months for agreements over 12 months or for ongoing agreements (cl. 15), and a cap on the term of an agreement to the unexpired period of a lease or permit where the supplier requires such a lease or permit to operate (cl. 16). The code also prescribes refund mechanics following termination and a 7‑day rule for refunds (cl. 21).

The cooling‑off concept is a central protective device. The cooling‑off period starts on the day of entering into the agreement and ends seven days after signing, except where the agreement relates to a fitness centre that has not yet opened and was entered before opening; in that latter case the cooling‑off period ends seven days after the day on which the fitness centre opens (cl. 3). The agreement summary must contain a clear statement of the cooling‑off right (cl. 12(2)(e)).

Financial terms are tightly controlled in form and timing. Suppliers may not charge fees that are not authorised by the code and disclosed in the agreement summary (cl. 20). Refunds for the unused part of the agreement must be paid within seven days after termination takes effect (cl. 21(2)). Where a client terminates in the cooling‑off period, the supplier may charge a fee that reasonably reflects administration costs and an unpaid fee (cl. 22). Where termination arises from permanent illness or incapacity evidenced by a medical certificate, the supplier may charge unpaid fees (cl. 23). For other terminations outside cooling‑off or incapacity, suppliers may charge a termination fee that reasonably reflects financial loss and unpaid fees, with a carve‑out that ongoing agreements terminated after the end of the initial term cannot attract a termination fee (cl. 24).

The code also addresses the presence of third party payment systems. It defines third party agreement and requires disclosure of third party agreement details in the membership agreement, including electronic access information (cl. 13(f)). Following client termination, the supplier must treat a client notice as a notice of termination of the third party agreement and, on receipt of the last payment, instruct the third party to cease deductions (cl. 19(3)).

Finally, the code places administrative duties around complaints and information provision. Suppliers must publish a public written summary of services, terms and fees (cl. 8), provide information on qualifications on written request (cl. 10), provide customers with complaint lodgement procedures (cl. 25(1)), make every reasonable effort to resolve complaints quickly and fairly (cl. 25(2)), keep complaints on file and notify complainants that the complaint has been received (cl. 25(3)), and make copies of the code available to clients and provide required documents free of charge in electronic and paper form (cls. 26-27).

These core concepts shape what is mandatory for the sector, create multiple points where suppliers must produce or communicate information, and create a pattern of time‑sensitive administrative duties with defined time frames such as 7 days for certain responses and refunds (cls. 19(1), 21(2)).

Primary targets are suppliers of fitness services operating in Western Australia as defined in Sch. 1 cl. 2. Supplier is defined as a person carrying on the business of supplying a fitness service, but not an employee of such a person. That language captures proprietors, business owners, corporate entities, franchisees, self‑employed trainers operating as businesses, and other entities offering membership agreements or ongoing arrangements for fitness services. The code explicitly excludes employees from the definition of supplier, but places obligations on suppliers to take reasonable steps to ensure employees comply with conduct and confidentiality rules (cls. 5(1)(b), 6(2), 7(2)).

Clients are broadly defined to include anyone who enters into, has entered into, or inquires about a membership agreement, or who has been supplied fitness services, and includes persons on whose behalf a parent or guardian signs an agreement (Sch. 1 cl. 2). Consequently the code covers adults, minors whose agreements are entered into by parents or guardians, prospective clients making enquiries, and former clients. The definition therefore imports a wide consumer base and places duties on suppliers where there has been an inquiry alone.

Third parties are indirectly affected. The code contemplates suppliers using third party payment systems and makes specific demands regarding disclosure of third party agreements and treatment of third party deductions on client termination (cls. 13(f), 14(1)(b), 19(3)). Payment processors, credit card merchants, direct debit agencies and fintech platforms used by suppliers will be implicated operationally because suppliers must instruct third parties to cease deductions upon receipt of the last payment, and must provide clients with electronic access to third party agreement details.

Suppliers operating fitness centres are subject to additional, location specific duties. Before entering into membership agreements for services at a fitness centre, suppliers must provide a copy of centre rules, allow inspection if the centre is operating and, if not operating, notify the client of the proposed opening day and inform clients of changes to the proposed opening day (cl. 9(1)(a)-(c), cl. 9(2)). These obligations affect landlords, facility managers and operators who run centres that are not yet open , notably where the cooling‑off clock is tied to actual opening dates (cl. 3).

Medical practitioners and certain registered professionals are explicitly excluded from the definition of fitness service in specific circumstances. Services supplied by persons registered under the Health Practitioner Regulation National Law (WA) in the medical profession or physiotherapy profession, when supplied in the course of that profession, are excluded from the fitness service definition (cl. 4(2)(a)(i)-(ii)); sporting clubs, exclusive educational institution services, martial arts, dancing and ballet are also excluded (cl. 4(2)(a)(iii)-(v)). Those carve‑outs mean that hospitals, physiotherapy clinics operating under professional registration, sporting clubs and schools are less likely to be captured by the code where they fall within the exclusions.

Corporate structure matters for disclosure. If the supplier is a company, the membership agreement must include the supplier’s ACN as defined in the Corporations Act 2001 (Sch. 1 cl. 13(b)). That requirement directly affects corporate suppliers and ensures traceability of corporate entities in contractual relationships.

Small businesses and sole traders are specifically implicated because the code imposes administrative and disclosure burdens that do not scale with business size. For example, the requirement to produce a public written summary, pre‑contract provision of proposed membership and third party agreements, maintain complaint records and respond to termination within 7 days can create a compliance overhead for microbusinesses. The code also requires that documents be available free of charge in electronic form and in paper form on request (cl. 26), implying potential printing and distribution costs.

Enforcement bodies and regulators are indirect addressees. Regulation 3(2) prescribes the code under section 45(1) of the Fair Trading Act 2010; enforcement and any penalties or remedies for breach are therefore matters for the Fair Trading Act and regulators acting under that Act, or under the Australian Consumer Law (WA) where applicable (reg. 3(2); Sch. 1 cl. 6(1) cross‑reference).

Finally, prospective franchisees and landlords are affected through contractual interactions. The cap on terms for agreements where the supplier requires a lease or permit to use a facility limits contract terms to the unexpired period of that lease or permit (cl. 16). That provision will affect suppliers negotiating longer membership terms where the supplier’s ability to supply services is tethered to property occupancy.

In practical terms, the immediate compliance burden is on suppliers , they make decisions, implement processes, and bear costs. Clients gain statutoryly backed rights to disclosure, cooling‑off and termination mechanics. Third parties providing payment services are operationally affected through termination and disclosure obligations. Regulators gain a prescribed instrument to apply to industry conduct, and courts and tribunals will be asked to interpret discretionary standards such as “reasonable” administration costs and what amounts to “unpaid fees” or “termination fees” reasonably reflecting financial loss.

This section lists the code’s material duties imposed on suppliers and the rights it grants clients, with clause references.

Duties on suppliers (selective, with clause citations)

• Document and form duties:

  • Ensure membership agreements are written and signed by the client or by a parent or guardian where the client is under 18 (Sch. 1 cl. 11).
  • Include an agreement summary at the beginning of every membership agreement, containing a concise description of services, term, cooling‑off statement, full fee disclosure and exclusions or limitations (cl. 12).
  • Provide a copy of the proposed membership agreement and any proposed third party agreement prior to entering into the agreement (cl. 14(1)).
  • Provide the client with a signed copy of the membership agreement and any third party agreement after entry (cl. 14(2)).
  • Make available to the public a written summary with description of services, initial or fixed terms, all fees and charges, and any exclusions (cl. 8).
  • Include supplier contact and corporate identification information in agreements, including ACN where applicable (cl. 13(a)-(b)).

• Conduct and marketing duties:

  • Must not engage in high‑pressure selling or harassment and must take reasonable steps to prevent employees from doing so (cl. 5).
  • Must not use deceptive, misleading, false or unfair advertising or marketing practices, with specific prohibitions on false representations about cost, benefits, need and comparisons with other suppliers (cl. 6(1)(a)-(d)); must take reasonable steps to prevent employees using such practices (cl. 6(2)).
  • Ensure sufficient information is available for clients to make informed decisions (cl. 6(3)).

• Confidentiality:

  • Must not use or disclose personal information about a client obtained through supplying a fitness service, and must take reasonable steps to ensure employees do not disclose personal information (cl. 7). Exceptions are written client authorisation or lawful compulsion (cl. 7(3)).

• Financial and contractual duties:

  • Must not accept prepayment covering a period greater than 12 months for agreements over 12 months or ongoing agreements (cl. 15).
  • Must not enter into a membership agreement for a term exceeding the unexpired period of the lease or permit where a lease or permit is required to supply services (cl. 16).
  • For ongoing agreements with initial terms longer than 6 months, must give at least 2 months’ written notice before the end of the initial term specifying when it ends, that it continues after the initial term only if the client does not terminate, and the termination procedure (cl. 17(1)-(2)).
  • Must respond to termination notices within 7 days confirming the amount of the last payment due and the date termination takes effect; must cease deductions upon receipt of the last payment; must treat a client termination notice as a termination of any third party agreement and instruct the third party to cease deductions upon receipt of last payment (cl. 19(1)-(3)).
  • Must pay refunds representing the unused portion of fees within 7 days after termination takes effect (cl. 21(1)-(2)).
  • Must charge only fees that may be charged under the subdivision and disclosed in the agreement summary (cl. 20).

• Complaint handling and disclosure:

  • Provide information to clients on how to lodge complaints; make every reasonable effort to resolve complaints quickly and fairly; record complaints and notify complainants as soon as practicable (cl. 25).
  • Make the code available to clients and provide documents free of charge in electronic form and in paper form on request (cls. 26-27).

Client rights (selective, with clause citations)

• Right to a cooling‑off period: Clients have a cooling‑off period starting on the day the agreement is entered and ending seven days thereafter or in the case of agreements entered before a fitness centre opens, seven days after the centre opens (cl. 3). This right must be clearly stated in the agreement summary (cl. 12(2)(e)).

• Right to information and disclosure: Clients are entitled to receive the proposed membership agreement and any proposed third party agreement prior to entry, a signed copy after entry, and public summaries of services and fees (cl. 8; cl. 14).

• Right to terminate at any time: Clients may terminate a membership agreement at any time by giving written notice; termination takes effect immediately if notice is received during the cooling‑off period, otherwise as specified in the agreement but no later than 30 days after receipt (cl. 18(1)-(2)). The right to terminate must be included in the agreement content (cl. 13(g)).

• Right to refunds: On termination, clients are entitled to a refund representing the unused part of fees, paid within 7 days after termination takes effect (cl. 21). During the cooling‑off period a supplier may charge only reasonable administration costs and any unpaid fee (cl. 22).

• Right to information on qualifications: Clients may request and must be given, in writing, information about the supplier’s or an employee’s qualifications and professional registrations (cl. 10).

• Protections regarding fees: Suppliers may only charge fees disclosed in the agreement summary and authorised by the code (cl. 20). For incapacity, suppliers may charge unpaid fees but only where a medical certificate supports permanent illness or incapacity (cl. 23). For other terminations outside cooling‑off or incapacity, suppliers may charge a termination fee reasonably reflecting financial loss and unpaid fees, with a specific exclusion for ongoing agreements terminated after the end of their initial term (cl. 24).

• Access to complaint mechanisms: Clients must be informed how to lodge complaints and benefit from a supplier obligation to attempt rapid and fair resolution, and to record complaints (cl. 25).

Other notable rights and duties:

• Suppliers must give clients notice when the proposed opening date of a fitness centre changes (cl. 9(2)). This interacts with the cooling‑off period in cl. 3, which extends certain cooling‑off periods until seven days after opening when the agreement was entered before opening.

• Third party agreement rights: Clients are to be provided with details of third party agreements, including where they can be accessed electronically, and clients’ termination notices are to be treated as termination of third party agreements by the supplier (cl. 13(f); cl. 19(3)).

Taken together, these duties and rights reallocate a set of disclosure, procedural and timing burdens to suppliers, while granting clients express rights to information, termination, refunds and complaint handling. Several provisions are phrased in terms of “reasonable” or “reasonable steps”, which imports an indeterminate standard and leaves room for business judgement and regulator or court interpretation.

The code itself, as presented in Schedule 1 to the Fair Trading (Fitness Industry Code of Practice) Regulations 2020, does not set out express monetary penalties or criminal sanctions within its clauses. Instead, regulation 3(2) prescribes the code under section 45(1) of the Fair Trading Act 2010 (WA) as a code of practice that applies to suppliers and clients. The code is therefore an instrument operating under the statutory architecture of the Fair Trading Act; enforcement mechanisms, penalties and regulatory processes available for breach will arise from that parent Act and any enforcement powers conferred elsewhere, including the Australian Consumer Law (WA) where cl. 6 cross‑references its operation (reg. 3(2); Sch. 1 cl. 6(1)).

Because the code is prescribed under the Fair Trading Act, a regulator acting under the Fair Trading Act will have responsibilities for monitoring compliance, investigating complaints and taking enforcement action. The text supplied does not include the enforcement chapters of the Fair Trading Act, so the code does not itself list infringement notices, fines, injunctions, damages or other sanctions. Practitioners must therefore consult the Fair Trading Act 2010 to identify the specific enforcement tools, penalties and processes that the Western Australian regulator may use in response to contraventions of the code. The code’s document and process obligations would typically be enforced through the Act’s compliance and enforcement mechanisms, which may include administrative notices, remedies under consumer protection provisions, and court proceedings, depending on the Act’s structure.

There are features of the code likely to attract regulatory attention and enforcement action, under either the Fair Trading Act or the Australian Consumer Law (WA). These include:

• Misleading or deceptive conduct and false representations. Clause 6(1) prohibits deceptive, misleading, false or unfair advertising or marketing and includes specific examples: misrepresentations as to cost, benefits, need, or comparative claims (cl. 6(1)(a)-(d)). The clause itself states “without limiting the Australian Consumer Law (WA)”, indicating that regulators can apply both the code and the statutory ACL provisions concurrently (cl. 6(1)).

• Failures to provide prescribed documents and disclosures. Clauses 8, 11-14 and 26-27 create obligations to provide public summaries, agreement summaries, proposed agreements, signed copies, and to make documents available free of charge. Non‑compliance with these mandatory disclosure obligations would be actionable under the Fair Trading Act framework.

• Financial improprieties around prohibited fees. Clause 20 bars charging fees that are not authorised by the subdivision or disclosed in the agreement summary. Claiming undisclosed fees, or failing to provide refunds within the seven day time frame in cl. 21(2), would present clear enforcement scenarios.

• Improper use of client personal information. Clause 7 imposes confidentiality duties and requires reasonable steps to prevent employee misuse; unlawful disclosure may engage privacy obligations under the Privacy Act or create consumer protection issues.

The code uses several standards with elastic language such as “reasonable steps”, “as soon as practicable”, “may charge … a fee that reasonably reflects the administration costs” and “termination fee … reasonably reflects the financial loss incurred” (see cl. 5(1)(b), cl. 25(3), cl. 22(a), definition of termination fee in Sch. 1 cl. 2). Those standards require fact‑sensitive judgements and create areas in which regulators or courts will need to develop interpretive guidance through decisions or administrative rulings. Enforcement outcomes will therefore depend on how the Fair Trading Act’s enforcement framework is used and how regulators prioritise investigations.

Practitioners should note timing obligations which, if missed, create straightforward compliance failures: suppliers must respond to notices of termination within 7 days confirming final payment and termination date (cl. 19(1)); suppliers must pay refunds within 7 days after termination takes effect (cl. 21(2)). Failure to meet these deadlines exposes suppliers to regulatory action for breach of the Code, and potentially to consumer claims for breach of contract or statutory consumer protections.

The code’s overlap with other statutory regimes also has enforcement implications. Clause 6(1) explicitly leaves the ACL unaffected; therefore ACL enforcement actions for misleading or deceptive conduct, unconscionable conduct, false or misleading representations and unfair contract terms may be available in addition to actions for code breach. The code’s confidentiality obligations refer to the Privacy Act 1988 definition of personal information (Sch. 1 cl. 2), implying that privacy regulators could have concurrent enforcement interests if personal information handling breaches statutory privacy obligations.

In summary, while the code sets mandatory duties, the text itself does not specify standalone penalties. Enforcement will arise through the Fair Trading Act’s enforcement powers and the broader consumer protection toolkit, including possible recourse via Australian Consumer Law (WA) provisions. The code’s mix of prescriptive timing obligations and open standards creates both easy compliance markers and grey areas likely to generate contested enforcement outcomes that regulators and courts will have to delineate.

The code is expressly presented as a code of practice prescribed under section 45(1) of the Fair Trading Act 2010 (WA) (reg. 3(2)). Accordingly, it sits within the statutory architecture of the Fair Trading Act and functions as a sectoral instrument that supplements and interfaces with other legal regimes cited in the code itself.

Australian Consumer Law (WA): Clause 6(1) is explicit in stating “Without limiting the Australian Consumer Law (WA), a supplier must not use deceptive, misleading, false or unfair advertising or marketing practices …” That wording creates a concurrent operation: the code supplements the ACL (WA) by identifying specific prohibited representations and by imposing an industry‑specific standard of conduct; it does not displace ACL protections. Practically, suppliers can be held to both the code’s specific prohibitions and the broader ACL prohibitions on misleading or deceptive conduct, false representations and unconscionable conduct. Enforcement agencies may therefore have multiple statutory bases to investigate the same conduct.

Privacy law: The code adopts the definition of personal information from section 6(1) of the Privacy Act 1988 (Commonwealth) for the purposes of its confidentiality clause (Sch. 1 cl. 2 and cl. 7). Clause 7 imposes a duty not to use or disclose personal information obtained in the course of supplying fitness services, subject to client authorisation or written law. That cross‑reference means suppliers must reconcile confidentiality duties under the code with privacy obligations and permitted disclosures under the Privacy Act, including APPs (Australian Privacy Principles) and applicable data breach notification obligations. Where state law and Commonwealth privacy law overlap, the Commonwealth Privacy Act will generally prevail to the extent of inconsistency under the Constitution, but the code nonetheless imposes a state‑level obligation that aligns with Commonwealth concepts.

Health practitioner regulation and scope of services: Clause 4(2)(a)(i)-(ii) excludes services supplied by persons registered under the Health Practitioner Regulation National Law (Western Australia) in the medical or physiotherapy professions where supplied in the course of that profession. This carve‑out engages the regulatory boundary between commercial fitness services and regulated health services. Suppliers offering services that border clinical practice should consider professional registration obligations and whether those services fall within the Health Practitioner Regulation National Law rather than the code.

Corporations Act: Clause 13(b) requires that if the supplier is a company, the membership agreement include the supplier’s ACN as defined in the Corporations Act 2001 (Commonwealth) section 9. This reflects an interaction with corporate disclosure norms and ensures corporate suppliers remain identifiable in contracts, which affects civil enforcement and consumer redress.

Payment systems and third party agreements: The code requires disclosure of third party agreement details and requires suppliers to treat termination as termination of the third party agreement and to instruct third parties to cease deductions after the last payment (cls. 13(f), 14(1)(b), 19(3)). Those requirements interact with payment systems law, contract law governing mandates between supplier and payment processor, banking regulations, direct debit system rules and potentially consumer protection laws related to unauthorised debits. The code imposes obligations on the supplier to effect changes in third party deduction practices, but the supplier’s ability to do so may depend on the terms of the third party agreement and the contract between supplier and third party.

Contract law and common law remedies: The code establishes statutory minimums for contract form and content, but it does not displace general contract law. For example, the code requires that agreement summaries disclose certain fee information and that the agreement include a statement about potential liability for damages where the client terminates in a way not described in the agreement (cl. 12(2)(f); cl. 13(i)). Those contractual stipulations will coexist with common law remedies for breach and statutory remedies under consumer protection laws.

State regulatory architecture: Because the code is prescribed under the Fair Trading Act, enforcement action for code breaches will proceed under that Act’s powers. The code is a state instrument and regulators exercising state powers will typically have avenues for administrative action within the Act. The code also interacts with the broader body of state consumer protection and contract enforcement mechanisms.

Potential intersections and frictions:

• Overlap and enforcement duplication. Because the ACL (WA) operates in parallel and the code explicitly does not limit it, businesses might face concurrent investigations or enforcement actions by different agencies or under multiple statutory bases for the same conduct.

• Third party constraints. The supplier’s obligation to instruct third party payment systems to cease deductions may be constrained by the terms of the third party agreement. The code requires suppliers to treat client termination as termination of a third party agreement (cl. 19(3)), but if the third party agreement has separate consumer cancellation processes, divergence between legal obligations and third party operational practice can arise.

• Boundary disputes over definition of fitness service. The code’s exclusions for services by health practitioners and for medical rehabilitation, dancing, martial arts, sporting clubs and educational institution services introduce areas of potential legal dispute about whether a service is properly characterised as a fitness service under the code or as an excluded activity under another regulatory regime (cl. 4(2)).

• State and Commonwealth privacy law alignment. The code’s confidentiality provisions direct suppliers to the Privacy Act’s definition of personal information, so suppliers must map code duties onto APP obligations and possible Commonwealth privacy enforcement if personal information handling breaches occur.

In summary, the code functions as a sectoral overlay that complements and operates alongside the Australian Consumer Law (WA), privacy law, health practitioner regulation, corporate disclosure requirements and the contract law framework. It creates a set of state‑level duties that suppliers must align with existing Commonwealth and state legal obligations.

The compilation table included in the instrument records the legislative history up to the date of compilation. The original Regulations are the Fair Trading (Fitness Industry Code of Practice) Regulations 2020, published as SL 2020/179 on 29 September 2020. Regulation 1 and 2 (citation and commencement) came into operation on the date of Gazette publication, 29 September 2020; the remaining substantive regulations came into operation on 1 July 2021 (see reg. 2(a)-(b) in the Regulations and the compilation table).

The compilation table also records an amendment titled Fair Trading (Fitness Industry Code of Practice) Amendment Regulations 2024, published as SL 2024/47 on 17 April 2024. According to the compilation table, r. 1 and r. 2 of the amendment (presumably citation and commencement provisions for the amending instrument) came into operation on 17 April 2024, with other provisions of that instrument commencing on 18 April 2024 (compilation table). The instrument’s text also records that regulation 4 was deleted by SL 2024/47 r. 4, although the main Schedule and code remain. The exact content of the deleted regulation is not included in the text provided, so practitioners must consult SL 2024/47 to identify the deleted material and any additional changes made by the 2024 amendment.

Aside from the 2024 amendment entry, the code itself contains internal cross‑references to other statutes, including the Fair Trading Act 2010 under which it is prescribed (reg. 3(2)), the Privacy Act 1988 for the definition of personal information (Sch. 1 cl. 2), the Health Practitioner Regulation National Law (Western Australia) for exclusions (cl. 4(2)(a)), and the Corporations Act 2001 for the ACN requirement in company suppliers (cl. 13(b)). Those cross‑references are not amendments to the code, but they reflect the code’s embeddedness within the wider regulatory statutory environment and any changes in those Commonwealth laws will have consequential effects on interpretation or operation of the code’s defined terms and carve‑outs.

The compilation table is the official place to verify commencement and amendment timing. Practitioners should consult the amending instrument SL 2024/47 to obtain the detailed amendment texts and identify whether other clauses were modified beyond the deletion of r. 4. The compilation table in the code indicates the code has been subject to at least one formal amendment since its initial publication, and that amendment included deletion of a regulation numbered 4. Where the compilation table notes an amendment and a deletion, careful comparison of the consolidated text against the pre‑amendment version is required to detect substantive changes to obligations.

Because the code was prescribed under the Fair Trading Act, future amendments could follow the standard processes for making, amending or revoking subsidiary legislation in Western Australia, including consultation and regulatory impact assessment requirements where relevant, but the instrument itself does not include a statutory amendment schedule beyond the entries in the compilation table.

The instrument as provided contains no judicial decisions, tribunal determinations or cases interpreting the Fitness Industry Code of Practice 2021. The text does not list any litigation or administrative rulings; the compilation table lists only the original regulation and one amending regulation (SL 2024/47). There are therefore no cases cited in the Schedule or regulation text to provide interpretive guidance on contentious provisions such as “reasonable steps”, the proper measure of a “termination fee” reflecting financial loss, the interpretation of “unpaid fee”, or the boundary between fitness services and excluded services like physiotherapy or medical rehabilitation.

Where the code leaves standards open to interpretation , for example, what constitutes a fee that “reasonably reflects the administration costs” during cooling‑off (cl. 22(a)), or when a “termination fee … reasonably reflects the financial loss incurred by the supplier” (definition of termination fee in Sch. 1 cl. 2; cl. 24(2)(a)) , litigation and regulatory enforcement action are likely mechanisms by which those terms will be given content. As of the text before us, no such litigation history is recorded in the instrument.

Practitioners advising clients should therefore plan for uncertainty in legal interpretation and possible future case law. Potential litigation themes likely to arise and therefore candidates for judicial clarification include:

• The standard for “reasonable steps” to prevent employees from engaging in prohibited conduct, and how courts or tribunals will judge the adequacy of staff training, monitoring and supervision programs (cls. 5(1)(b), 6(2), 7(2)).

• The meaning and quantification of “administration costs” that may be charged during the cooling‑off period, and how those costs must be evidenced and justified (cl. 22(a)).

• The determination of what constitutes a “termination fee” that “reasonably reflects the financial loss incurred by the supplier” in the event of early termination outside permitted circumstances, and how to apportion unpaid fees (definition in Sch. 1 cl. 2; cl. 24(2)(a)-(b)).

• The boundary between excluded professional services and covered fitness services, especially when a supplier provides a mix of fitness and rehabilitative or clinical services (cl. 4(2)(a)(i)-(ii), cl. 4(2)(c)-(v)).

• Interactional disputes over third party agreements and the supplier’s obligation to instruct third parties to cease deductions, particularly where third party agreements are governed by separate legal regimes or require independent consumer action.

In the absence of recorded litigation in the instrument, reliance will be placed on regulatory guidance, consumer tribunal decisions arising from complaints under the Fair Trading Act or the ACL (WA), and potential court precedents developed over time. Lawyers and compliance professionals should monitor regulator decisions and any early cases that interpret the code because those will materially reduce legal uncertainty for suppliers and clients alike.

The code contains a number of provisions and drafting choices that create practical pitfalls, compliance traps and unresolved interpretive issues. Below are specific “gotchas” to flag for suppliers, advisers and compliance officers, with clause references where applicable.

1. “Reasonable” metrics without formulae

   • Several provisions permit charges or actions where the amount or action “reasonably reflects” some cost or loss, or require “reasonable steps” by the supplier to prevent employee misconduct (definition of termination fee in Sch. 1 cl. 2; cl. 22(a); cls. 5(1)(b), 6(2), 7(2)). There is no statutory formula, scale or guidance in the code. That absence creates risk: a supplier who self‑assesses a termination fee or administration fee and charges it may later have to justify the quantum to a regulator or tribunal.

2. Unpaid fee ambiguity

   • The term unpaid fee is defined in Sch. 1 cl. 2 as a fee for a fitness service that has been supplied, is unpaid, and where the client terminates the membership agreement. Suppliers may interpret which fees qualify as unpaid and how to calculate the unpaid fee for refunds and deductions. The code allows suppliers to charge unpaid fees in several circumstances (cls. 22-24), but how to apportion prepaid fees, session counts and month‑by‑month services may be contentious.

3. Third party payment systems: practical limits on supplier control

   • The supplier must treat client termination as termination of a third party agreement and must instruct the third party to cease deductions upon receipt of the last payment (cl. 19(3)). Suppliers often do not control third party payment platforms; the third party agreement may have cancellation processes or notice periods of its own. A supplier’s obligation to stop deductions “immediately” upon receipt of the last payment can conflict with real‑world third party processes, leading to disputes over who is responsible for unauthorised continued deductions.

4. Cooling‑off period tied to opening for un‑opened centres

   • If a client signs before a fitness centre opens, the cooling‑off period ends seven days after the day on which the fitness centre opens (cl. 3(b)(i)). Suppliers must notify clients of the proposed opening day before entering into the agreement (cl. 9(1)(c)). If the proposed opening date changes, suppliers must notify the client (cl. 9(2)). Failure to manage opening date notifications precisely can create disputes about whether a client’s termination was within the cooling‑off period.

5. Cap on prepayment may disrupt business models

   • Suppliers cannot accept prepayments for periods greater than 12 months where the agreement term is more than 12 months or is ongoing (cl. 15). Businesses that relied on long upfront payment models or membership packages that lock in customers for longer than 12 months will need to restructure payment options. This cap may affect cash flow projections and business valuation models.

6. Lease/permit cap on term

   • Clause 16 forbids a supplier from entering into a membership agreement for a term exceeding the unexpired period of a lease or permit where supplying the service requires such a lease or permit. That rule may create practical issues when a supplier negotiates long membership terms while occupying a location on a short lease, and may necessitate coordination with landlords and franchise agreements.

7. Termination fee carve‑out for post‑initial term ongoing agreements

   • The code permits termination fees generally for terminations outside cooling‑off or incapacity, but it disallows termination fees where a client terminates an ongoing agreement after the end of the initial term (cl. 24(2)(a)). Suppliers must therefore precisely track initial term end dates and ensure agreements correctly describe ongoing agreement status in the agreement summary and contract clauses (cl. 12(2)(d), cl. 13(e)).

8. Contractual liability warning must appear yet may be hard to enforce

   • Clause 13(i) requires the agreement to include a statement that the client may be liable for damages if they terminate in a manner not described in the agreement. That creates a contractual expectation of damage liability but the code simultaneously limits the scope for certain termination fees and unpaid fees. Suppliers should be cautious about relying on such contractual statements without reconciling them with statutory restrictions.

9. Timelines are tight

   • Suppliers must respond to termination notices within 7 days confirming the last payment due and termination date (cl. 19(1)); refunds must be paid within 7 days after termination takes effect (cl. 21(2)). Administrative failure to meet those deadlines is a straightforward breach.

10. Confidentiality exceptions and recordkeeping

    • Clause 7 forbids use or disclosure of personal information, but allows uses authorised in writing by the client or authorised or required under a written law (cl. 7(3)). Suppliers operating in multi‑service environments (for example providing fitness plus allied health) must segregate records and obtain clear written authorisations where cross‑use of personal information could otherwise occur.

11. Agreement signature rules for minors

    • Membership agreements for clients under 18 must be signed and dated by a parent or guardian (cl. 11(b)(i)). Failure to secure parental signature can affect enforceability.

12. No express limit on suppliers’ remedies for non‑payment beyond unpaid fee and termination fee rules

    • The code permits suppliers to recover unpaid fees and to charge termination fees in certain circumstances but does not specify the full range of recovery mechanisms. Suppliers pursuing debt recovery must still operate within contract law and consumer protection laws.

13. No internal dispute resolution standard beyond “every reasonable effort”

    • Clause 25(2) requires suppliers to make every reasonable effort to resolve complaints quickly and fairly, but there is no prescribed internal dispute resolution procedure. Regulators may look to this clause when assessing complaint handling adequacy, but suppliers need to design their own compliant procedures and document them.

14. Public written summary must include “all fees and charges”

    • Clauses 8(c) and 12(2)(f) require disclosure of all fees and charges including total amounts and when each is payable. Omissions or opaque fee presentation will likely be treated as non‑compliance.

15. Interaction with other regulatory regimes absent in the code

    • The code references the ACL (WA), the Privacy Act 1988, and the Health Practitioner Regulation National Law (WA); suppliers must not assume the code displaces other legal obligations. Failing to check continuity with Commonwealth obligations, especially for privacy and health professional registration, is a frequent practical pitfall.

Advisers should plan compliance programs that address these specific points: documented fee justification methods for administration and termination fees; clear third party payment processes; strict timelines for responses and refunds; precise document control and versioning tied to opening dates; and staff training programmes to satisfy “reasonable steps” obligations.

This section provides a practical, clause‑referenced compliance checklist for suppliers. It focuses on policies, systems and documentary practices needed to meet the code’s obligations and to reduce enforcement and dispute risk.

1. Contract documentation and form

   • Ensure all membership agreements are written, dated and signed by the client or by a parent/guardian for minors (cl. 11). Maintain pre‑signed, templated agreement forms that include an agreement summary at the front (cl. 12(1)) and all required contents set out in cl. 13.
   • The agreement summary must clearly identify services, term, fixed/ongoing status, cooling‑off statement, details of all fees and when each is payable, and any exclusions or limitations (cl. 12(2)(a)-(g)). Use plain language and tabulate fees to reduce ambiguity.

2. Disclosure and pre‑contract provision

   • Provide prospective clients with a copy of the proposed membership agreement and any proposed third party agreement before entering into the agreement (cl. 14(1)(a)-(b)). Implement an electronic pre‑contract delivery system that logs transmission and receipt dates.
   • After entry, provide a signed copy of the membership agreement and third party agreement to the client promptly (cl. 14(2)). Use time‑stamped electronic signatures and delivery confirmations.

3. Public written summary and availability of the code

   • Publish a public written summary with concise descriptions of services, terms and full fees and charges, and any restrictions (cl. 8). Place the summary in a conspicuous place at the fitness centre and on the supplier’s website.
   • Make a copy of the Fitness Industry Code of Practice available to clients on request (cl. 27), and ensure that documents required by the code are available free of charge in electronic form and in paper form on request (cl. 26).

4. Fees, prepayments and refund mechanics

   • Do not accept prepayment for more than 12 months for agreements with terms over 12 months or for ongoing agreements (cl. 15). Adjust product offerings and payment plans so that prepayments conform to the cap.
   • Disclose all fees and charges in the agreement summary (cl. 12(2)(f); cl. 20). Maintain clear internal ledgers showing how prepaid fees are allocated to services to enable accurate refund calculations.
   • On termination, calculate the refund representing the unused part and pay it within 7 days after termination takes effect (cl. 21(1)-(2)). Implement systems to compute and process refunds automatically to meet the 7 day deadline.
   • For terminations in the cooling‑off period, document and justify any administration fee charged by reference to a defined schedule of reasonable administration costs; ensure unpaid fees are supported by records (cl. 22).

5. Termination procedures and interactions with third parties

   • Publish and include in the agreement clear instructions on how to terminate, including electronic termination methods (cl. 13(h)). Provide the client with confirmation upon receipt of termination and compute the termination date no later than 30 days after receipt if termination is outside cooling‑off (cl. 18(2)(b); cl. 19(1)).
   • For third party payment systems, ensure the membership agreement identifies the third party and lets clients electronically access the third party agreement, including amounts payable (cl. 13(f)). Maintain procedures to instruct third parties to stop deductions on receipt of the last payment and to treat client termination notices as notices of termination of third party agreements (cl. 19(3)). Review and where necessary renegotiate supplier‑third party contracts to align cancellation mechanics.

6. Cooling‑off handling and un‑opened centres

   • If entering agreements before a fitness centre opens, track the proposed and actual opening dates carefully and notify clients of any changes (cl. 9(1)(c); cl. 9(2)). Ensure that the cooling‑off period calculation is tied to the actual opening date where applicable (cl. 3(b)(i)).
   • Record date/time of agreement signing and date/time of opening communications to clients to support correct cooling‑off calculations.

7. Complaints handling and records

   • Create a documented complaint handling policy satisfying cl. 25. Provide clients with information on how to lodge complaints (cl. 25(1)). Log every complaint on file and notify the complainant that the complaint has been received as soon as practicable (cl. 25(3)). Keep records of investigations and outcomes to demonstrate “every reasonable effort” to resolve complaints quickly and fairly (cl. 25(2)).

8. Staff conduct training and supervision

   • Train staff on prohibited practices: high‑pressure selling, harassment, deceptive marketing, and confidentiality obligations (cls. 5-7). Establish written procedures, role descriptions and supervisory checklists to evidence “reasonable steps” taken to ensure employees comply with the code.
   • Institute quality assurance and mystery‑shop programmes to monitor compliance with sales conduct standards and to detect potential high‑pressure techniques.

9. Confidentiality and privacy compliance

   • Map personal information flows and implement privacy safeguards consistent with the Privacy Act 1988. Obtain written client authorisations where information use or disclosure is contemplated outside the scope of fitness services (cl. 7(3)(a)).
   • Deploy access controls, logging and employee training to prevent unauthorised use of client personal information and to meet the obligation to take reasonable steps to prevent employee misuse (cl. 7(2)).

10. Qualifications disclosure

    • Maintain written records of staff qualifications and registrations, and be prepared to supply qualification and registration information in writing upon client request (cl. 10(1)-(2)). Ensure training and certification records are current and verifiable.

11. Corporate identification and record retention

    • If the supplier is a company, include the ACN in the membership agreement (cl. 13(b)). Maintain copies of all agreements, electronic communications and proof of client delivery, for both consumer protection defence and auditing purposes.

12. Lease/permit term alignment

    • If supply requires a lease or permit, ensure membership agreement terms do not exceed the unexpired lease or permit period (cl. 16). Coordinate with landlords and update membership agreements promptly on receipt of lease renewals or lease terminations.

13. Pricing transparency and fee schedule

    • Prepare a public fee schedule and map each fee in the agreement summary to the specific service or good it relates to (cl. 12(2)(f)(iii)). Avoid bundling fees in ways that obscure what the client is paying for.

14. Implementation of electronic processes

    • Provide methods to terminate agreements electronically and design document delivery in electronic formats that are accessible and legally valid (cl. 13(h); cl. 26). Keep auditable records of electronic terminations and deliveries.

15. Internal audit and legal review

    • Conduct periodic compliance audits to verify that processes are followed, that refunds and termination responses meet time limits, and that third party agreements are aligned with code obligations. Engage legal counsel to review template agreements, especially termination fee clauses, admin fee schedules and third party payment arrangements.

In sum, compliance rests on good document control, clear fee schedules, robust staff training, automated back‑office processes for terminations and refunds, and contract alignment with third party payment suppliers and landlords. Documented policies and contemporaneous records are crucial to demonstrate the “reasonable steps” and timeliness obligations the code requires.