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6.1 The project committee's review of comparable systems, together with a consideration of the current scientific knowledge and the ethical, social and economical issues has led it to the preliminary conclusion that the present legal position needs to be changed, and that the most effective way of doing so is by legislation.
6.2 The committee further recognised that an array of competing interests and social values are at issue in the debate about the statutory regulation of pre-employment testing for HIV. Any suggested statutory intervention should therefore attempt to reconcile the main opposing views in a form which leaves sufficient flexibility for the accommodation both of private rights and social interests, as well as future development of medical and scientific knowledge and in the economic environment.
6.3 It was also clear that only a balanced and responsible approach to the issues will be successful in addressing practical problems without alienating concerned segments of society.
6.4 The project committee provisionally concluded that the rights of the employer, while recognised, should be limited by prohibiting pre-employment testing for HIV except where such testing is reasonably, justifiably and rationally warranted. This approach has been reflected in comparable jurisdictions. It also accords with the basic trend world-wide to curtail absolute freedom of contract, and accords with the limitation clause of our own Constitution. It is furthermore in line with the provisions of the LRA.
6.5 On the basis of the above, it was in principle proposed in Discussion Paper 72 to
prohibit pre-employment HIV testing except where such testing is reasonably, justifiably and rationally warranted.
6.6 To this end it was provisionally recommended that a specific statute be adopted in order to regulate those instances where an employer may ask an applicant for employment to take an HIV test, and to prevent an employer from refusing an individual employment on the grounds of that person's HIV status or perceived HIV status, unless such refusal is deemed fair and justifiable. In the proposed draft Bill the Labour Court was given specific jurisdiction to determine under what circumstances HIV testing or taking HIV status into account in hiring may be permissible in order to give all involved parties a clear framework for resolving potential disputes. Since then, the prospect of the enactment of a prohibition by including it in the Department of Labour's Employment Equity Bill has arisen (this is discussed in paragraph 7.58 below). Furthermore, in the light of comments received, the Commission has adapted the draft Bill (see ANNEXURE B to this interim report).
6.7 The project committee has received guidance on the terms of the Bill from responses on preliminary proposals circulated to the business and labour sectors of NEDLAC[344] by the committee's Chairperson in November 1996. Both responses recognised the need to prevent unfair discrimination against people with HIV, and to protect people with HIV from unfair denial of the opportunity to work and to participate actively in the economy.[345] However, in the light of Business South Africa's response to the preliminary proposal[346] several key modifications were made to the terms of the proposed Bill.
6.7.1 A provision for criminal sanctions in the event of violation was removed. The Labour Court is, under the proposed Bill, given the authority to interdict any contravention or threatened contravention of the provisions.
6.7.2 A prohibition on unfair discrimination in the provision of benefits on the ground of HIV status was removed in order to narrow the interventive scope of the legislation and to eliminate confusion regarding the effect of such a prohibition. The regulation of permissible differentiation in post-employment benefits has been left to existing LRA provisions.[347]
6.7.3 In response to concerns that prohibiting HIV testing itself might not inhibit all invidious forms of discriminatory conduct, the language of the prohibition was amended to prohibit an employer from refusing to make an employment offer on the grounds of real or perceived HIV status.
6.7.4 The language of the exemption that the Bill envisages was broadened to allow testing for HIV and the consideration of the HIV status of the applicant for employment where an employer can establish that the test and such consideration is fair and justifiable. The Bill grants the Labour Court extensive scope to determine the fairness of the test and the consideration of HIV status. An employer may justify HIV testing and consideration of the HIV status of an applicant for employment with arguments of social policy, general health, employment conditions, (in one proposed formulation, the inherent requirements of the particular job) and currently available medical knowledge.
6.8 The following draft Bill was included in Discussion Paper 72 for comment:
REPUBLIC OF SOUTH AFRICA
PROHIBITION OF PRE-EMPLOYMENT HIV TESTING BILL, 1997
--------------------------------
(As introduced)
---------------------------------
(MINISTER FOR LABOUR)
_________________________________________________________________
B I L L
To prohibit pre-employment testing for HIV unless authorised by the Labour Court.
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:-
Definitions
1. In this Act, unless the context indicates otherwise -
"employee" means an employee as defined in the Labour Relations Act, 1995 (Act No. 66 of 1995), and includes an applicant for employment whether or not he or she is an existing employee.
"employment" includes the promotion, training, transfer, redeployment or re-assignment of an existing employee.
"HIV" means the Human Immunodeficiency Virus.
"test" includes any question, inquiry or other means designed to ascertain, or which has the effect of enabling the employer to ascertain, the HIV status or perceived risk behaviour of an applicant for employment, and specifically includes an inquiry whether for the purpose of obtaining employment he or she is prepared to undergo HIV testing in any form.
"Labour Court" means the Labour Court, including the Labour Appeal Court, having jurisdiction under the Labour Relations Act, 1995 (Act No. 66 of 1995).
Prohibition of pre-employment testing for HIV
2. Subject to section 3, no person shall -
(a) subject an applicant for employment to a test for HIV;
(b) take the HIV status or perceived HIV status of an applicant for employment into account in refusing him or her employment.
Authorisation for pre-employment testing for HIV
3. (1) An employer may apply to the Labour Court for authorisation to subject an applicant for employment or a category of applicants for employment to testing for HIV and/or to take the HIV status of such an applicant for employment into account in deciding whether to refuse him or her employment.
(2) Before hearing the matter, or at any stage hereafter, the Labour Court may give directions as it considers fit regarding service of the application on specified bodies or individuals, including any who in its opinion may assist it by the provision of information or submissions regarding medical facts, employment conditions and social policy.
(3)
[Option 1:]
The Labour Court shall grant authorisation if it is satisfied that consideration of the HIV status of an applicant for employment is, in the light of medical facts, employment conditions and social policy, fair and justifiable.
[Option 2:]
The Labour Court shall grant authorisation if it is satisfied that consideration of the HIV status of an applicant for employment is, in the light of medical facts, employment conditions, social policy and the inherent requirements of the particular job, fair and justifiable.
(4) The onus to satisfy the Labour Court lies on the employer seeking authorisation.
(5) The Labour Court may grant authorisation on such terms as it considers suitable, including conditions relating to -
(a) the provision of counselling;
(b) the maintenance of confidentiality;
(c) the period during which the authorisation applies;
(d) the category or categories of jobs or applicants for employment in respect of which the authorisation applies.
Interdicts
4. The Labour Court has jurisdiction, at the instance of any person who has standing under section 38 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), to interdict any contravention or threatened contravention of this Act.
Short title
5. This Act shall be called the Prohibition of Pre-employment HIV Testing Act, 1997.
* Aim of statutory intervention
6.9 While bringing clarity to the law, the proposed legislation aims at providing a flexible standard. It generally prohibits testing applicants for employment for HIV. However, it recognises that specific instances of testing may be proved to be fair and justifiable. Furthermore, it recognises that employers might - as the course of the epidemic advances - develop new rationales for testing which would deserve a fair hearing in an impartial court of law.
* Scope of intervention
6.10 The proposed prohibition only applies to job applicants. This was based on a specific consensus in the project committee that the extent of the problem relating to pre-employment HIV testing is such that it warrants urgent intervention and should be addressed individually. The agreement was reached subject thereto that should later research prove that other employment matters are in need of reform, these matters could be addressed in a more general statute.[348]
* Prohibition of pre-employment HIV testing
6.11 The general prohibition reflects the understanding that pre-employment testing is generally unwarranted and unjustifiable. In the great majority of cases a person's HIV status of itself is unrelated to his or her ability to perform job functions safely and effectively. Where a decision to test an applicant for employment is based upon irrational fear or a motive to discriminate unfairly, that behaviour should be prohibited.
* Authorisation of pre-employment HIV testing
6.12 Where testing an applicant for HIV, or taking an applicant's HIV status into account to deny employment, is fair and justifiable the proposed Bill grants the Labour Court jurisdiction to authorise HIV testing and the consideration of the HIV status of the applicant for employment. If there is evidence, for instance, that certain work activities pose cognizable risks of HIV transmission or HIV related injury, then an employer will have a fair and justifiable rationale for testing applicants for employment for HIV.
* Choice of forum for adjudication of disputes
6.13 The Labour Court is the appropriate forum for determining the fairness of workplace-related discrimination. Other legislation has given the Labour Court jurisdiction to adjudicate disputes involving the employment setting.[349]
* Burden of proof
6.14 An employer will be better situated to advance a claim in court that it has a need for knowing (or basing a decision upon) the HIV status of an applicant. As far as onus is concerned, the employer is also best equipped to establish why the HIV status of an applicant for employment is relevant to a specific job position.
* Jurisdiction of the Labour Court
6.15 The Labour Court's jurisdiction to determine whether ascertaining or taking into account an applicant's HIV status is fair and justifiable is not limited to determinations concerning the applicant's capacity to perform job requirements. It extends to any other justification which an employer may fairly seek to advance. Again, it appears that an employer will be in a better position to establish the social and economic impact of a prohibition on pre-employment testing, and to justify its own exemption from a generic prohibition.
* Need for an impartial forum to determine whether HIV testing is fair and justifiable
6.16 The proposed Bill aims to provide an opportunity for an impartial forum to establish, given all information then available, whether HIV testing of applicants for employment and the consideration of their HIV status in a given industry or for a specific position is fair and justifiable. The proposed Bill aims to ensure that HIV testing is done only in accordance with law, and without impermissible infringement upon constitutional rights.
6.16.1 The proposed Bill gives the Labour Court wide authority to issue instructions regarding counselling, confidentiality, and the circumstances under which an employer may test applicants for employment for HIV.
6.16.2 The proposed Bill further provides the Labour Court with the authority to "give directions as it considers fit regarding service of the application on specified bodies or individuals, including any who in its opinion may assist it by the provision of information or submissions regarding medical facts, employment conditions and social policy". The wide procedures mandated by this provision enable the Labour Court to invoke amicus curiae briefs in deciding whether HIV testing and the consideration of HIV status is fair and justifiable.
6.16.3 A party may appeal to the Labour Appeal Court. The Labour Appeal Court may similarly authorise HIV testing and consideration of HIV status if it finds that knowledge of the applicant for employment's HIV status is fair and justifiable in the light of medical facts, (job requirements), employment conditions and social policy.
6.16.4 The Labour Court has jurisdiction to hear any person who has standing under section 38 of the 1996 Constitution. This wide confirmation of standing will assist in eliminating problems that individual applicants for employment may have. Since such persons will frequently not enjoy union membership, they may experience difficulty in procuring legal representation, determining their legal rights or maintaining legal action.
* Uncertainty regarding grounds for justification of pre-employment HIV testing and consideration of the HIV status of an applicant for employment
6.17 The project committee was not unanimous on whether the inherent requirements of the particular job should be included (together with medical facts, employment conditions and social policy) as justification of HIV testing and consideration of the HIV status of an applicant for employment. This option was included in the proposed Bill as set out in Discussion Paper 72 and comment was specifically invited thereon.
[344] See fn 277 above.
[345] BSA 1997 Response to SALC Presentation at 1 stating: "BSA is totally opposed to unfair discrimination on the basis of HIV/AIDS. BSA accepts that it is necessary to have protection for individuals who are HIV positive, in light of the fact that HIV positivity alone does not give any indication of short- and even medium-term prognosis or outlook and such individuals should not be denied the opportunity to work, earn a living and live a full and productive life". See also Labour Sector 1997 Response to SALC Presentation 10.
[346] BSA 1997 Response to SALC Presentation.
[347] An unfair labour practice is defined in Schedule B of the LRA to include -
"2(1)(a) the unfair discrimination, either directly or indirectly, against an employee on any arbitrary ground, including, but not limited to race, gender, sex ... disability ... marital status or family responsibility;
(b) the unfair conduct of the employer relating to the promotion, demotion or training of an employee or relating to the provision of benefits to an employee".
Minutes of project committee meeting on 6 and 11 March 1997.
[349] Cf Mine Health and Safety Act (Act 29 of 1996) sec 82(1) which states: "The Labour Court has exclusive jurisdiction to determine any dispute about the interpretation or application of any provision of this Act except where this Act provides otherwise".
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