Work­ing up a sweat about new fit­ness reg­u­la­tions

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - Pa­trick Bracher

SOME­WHERE out there, un­her­alded but ac­tive, is the Min­istry of Silly Leg­is­la­tion. I have given many ex­am­ples of badly drafted leg­is­la­tion in this col­umn. One of the low­lights must be the pro­posed Fit­ness In­dus­try Reg­u­la­tory Bill. The pur­pose of the bill is to reg­u­late fit­ness and fit­ness es­tab­lish­ments. Un­be­liev­ably, it is sug­gested that any­one who su­per­vises fit­ness ac­tiv­i­ties or pro­vides equip­ment for phys­i­cal fit­ness, health and well­be­ing and their train­ers in “any ex­er­cise modal­ity” should be reg­u­lated — from the small­est neigh­bour­hood yoga class to the largest gym.

Who will do the reg­u­la­tion? More en­ergy reg­u­la­tors than the Na­tional En­ergy Reg­u­la­tor of SA, ap­par­ently. First, we have the Fit­ness In­dus­try Reg­u­la­tory Author­ity which will ad­min­is­ter, gov­ern and reg­u­late fit­ness in SA. The author­ity’s pri­mary ob­jects are de­scribed in 18 sub­sec­tions and its func­tions in an­other 33 sub­sec­tions in­clud­ing, if you won­der whether your gym fees will go up, re­ceiv­ing and ex­pend­ing funds (prob­a­bly more re­ceiv­ing than ex­pend­ing).

We are not told what this author­ity con­sists of. But it is clear it is go­ing to have lots and lots of peo­ple to gov­ern our fit­ness. The author­ity is con­trolled by a coun­cil of five peo­ple ap­pointed by the min­is­ter. The coun­cil can ap­point any num­ber of com­mit­tees for dif­fer­ent sec­tors, dis­ci­plines and in­ter­ests in the fit­ness in­dus­try. The coun­cil and all its com­mit­tees are paid from the funds of the author­ity.

Then you have the staff of the author­ity in­clud­ing a direc­tor and three deputy di­rec­tors and any num­ber of peo­ple to see that we are not do­ing too many press-ups.

The next layer is fit­ness con­trol­ling bod­ies which ad­min­is­ter, gov­ern or reg­u­late fit­ness at club level and or­gan­ised fit­ness events. It is any­body’s guess how many com­mit­tees and con­trol­ling bod­ies there will be to gov­ern our “state of be­ing phys­i­cally, men­tally or emo­tion­ally fit by way of any mode of equip­ment or fit­ness train­ing”.

Does that, you may ask, in­clude pot­tery at the wheel? I don’t know. It de­pends, I sup­pose, how emo­tion­ally fit pot­tery in mo­tion makes you. Fit­ness pro­fes­sion­als in­clude those pro­vid­ing pro­fes­sional ser­vices as one-on-one in­struc­tion in any ex­er­cise modal­ity. Phys­io­ther­a­pists be­ware.

If you want to go along to the gym for a sauna you may find your­self gov­erned by the rules of the author­ity, the de­ci­sions of the coun­cil, the in­struc­tions of the com­mit­tees, ac­cred­i­ta­tion con­di­tions of your gym and of your fit­ness in­struc­tor, and the con­sti­tu­tions, rules, reg­u­la­tions and codes of con­duct of the con­trol­ling bod­ies.

And don’t think you can go from the gym to the squash court with your per­sonal trainer be­cause he or she is not al­lowed to be cer­ti­fied in more than one dis­ci­pline for fear of a crim­i­nal con­vic­tion. A fit­ness in­struc­tor who takes you from the ex­er­cise bi­cy­cle to the swim­ming pool could go to jail for three years and the owner of the gym five years. Even if all this hap­pens while both of you are over­seas.

And so the act goes on for 56 ridicu­lous sec­tions, some of them un­in­tel­li­gi­ble. It doesn’t end there. You have to read the act to­gether with the Safety at Sports and Recre­ational Events Act, 2010 which ev­ery­one has forgotten ex­ists and no­body knows how it works, even those who are sup­posed to im­ple­ment it. You also need to look at the Na­tional Sport and Recre­ation Act which is be­ing amended to cover recre­ation which in­cludes “all forms of phys­i­cal ac­tiv­ity that con­trib­ute to so­cial in­ter­ac­tion or­gan­ised as recre­ational ac­tiv­ity in­clud­ing a recre­ational ac­tiv­ity”. That prob­a­bly in­cludes a gar­den­ing club and cooking classes.

For­tu­nately, if you don’t like any de­ci­sion taken in terms of the fit­ness act you can ap­peal to the min­is­ter who has to de­cide the ap­peal with­out del­e­gat­ing it to any­one else. The min­is­ter is go­ing to be too busy to at­tend ti­tle fights.

Fi­nally, in case you are wor­ried about our law en­force­ment agen­cies, the min­is­ter can ex­empt a gov­ern­ment depart­ment “that pro­vides fit­ness train­ing as its core func­tion”. This in­cludes, says the act, the de­part­ments of po­lice and de­fence. For­tu­nately de­spite this sec­tion, fit­ness isn’t the pri­mary ob­ject of the po­lice and de­fence force ac­cord­ing to the Con­sti­tu­tion.

You would think that par­lia­ment has em­bar­rassed it­self enough re­cently. Why would it want to dis­cuss any­thing as silly as the Fit­ness In­dus­try Reg­u­la­tory Bill?

Un­der­stand­ing pro­posed Fit­ness In­dus­try Reg­u­la­tory Bill is more ex­haust­ing than a ses­sion in the gym

Pa­trick Bracher (@PBracher1) is a direc­tor at Nor­ton Rose Ful­bright.

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