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7.1 Discussion Paper 72 was distributed to 668 identified parties. These include the business and labour sectors, persons and bodies concerned with HIV/AIDS and workplace issues, non-governmental organisations concerned with human rights and HIV/AIDS issues, the medical and health professions, relevant research institutions, government departments, and the South African legal fraternity. The release of the Discussion Paper was advertised in the Government Gazette and by way of a media statement. A further 120 copies of the paper were subsequently distributed.
7.2 The closing date for comment was 31 July, extended on request to 15 August 1997. Submissions received thereafter were also considered.
7.3 It was agreed between the project committee and NEDLAC[350] that the Council would not respond on the proposed Bill as an organisation but that NEDLAC parties (business, labour and government) could respond individually. NEDLAC will respond officially after Cabinet approval on the proposed legislation has been obtained.[351]
7.3.1 The National Economic, Development and Labour Council Act, 1994 (Act 35 of 1994) requires that NEDLAC consider all proposed labour legislation relating to labour market policy before it is introduced in Parliament.[352] The Act also provides that any report of NEDLAC, including a report on any proposed legislation, shall be submitted to the Minister of Labour and be tabled in the National Assembly.[353]
7.3.2 A special procedure had thus to be found to include consideration by NEDLAC within the Law Commission's established process of consultation and subsequent report to the Minister of Justice and Parliament in terms of the South African Law Commission Act, 1973 (Act 19 of 1973). The procedure agreed on between the project committee and the NEDLAC Labour Market Chamber consisted in the project committee presenting the Labour Market Chamber with preliminary outline recommendations on 28 November 1996. The project committee's preliminary view was that statutory intervention prohibiting pre-employment testing for HIV is necessary. There was, however, divergence in the committee as to whether there should be an "escape clause" permitting pre-employment testing where it might be necessary for reasons such as possible pre-symptomatic psycho-neurological impairment. These preliminary views together with a subsequent draft Bill (prepared by the project leader) were circulated to NEDLAC's Labour Market Chamber in an attempt to seek middle ground and to elicit responses. Labour Market Chamber parties tabled responses to these recommendations on 20 February 1997. These responses have been taken into account in formulating proposals for inclusion in Discussion Paper 72.[354]
7.4 Written comments on the Discussion Paper were received from 65 respondents. These include members of the legal fraternity, private citizens, the medical and health professions, insurance industry, representatives of organised business and labour, non-governmental organisations concerned with HIV/AIDS and human rights issues, health departments of local authorities, government departments, research institutions and members of the judiciary.
7.5 Some of the comments reflect the views of interest groups of considerable influence while others represent the views of private individuals, researchers or small organisations.
7.6 A list of respondents appears in ANNEXURE A to this report.
7.7 Commentators are divided on the issue of prohibiting and regulating pre-employment HIV testing. The majority, however, supports the principle of no pre-employment HIV testing as formulated by the project committee, as well as statutory enactment of a prohibition as proposed. Of those who expressly indicated a preference for one or the other options in clause 3 of the proposed Bill, the majority by far favour option 2 (which requires justifying HIV testing and consideration of the HIV status of an applicant for employment also in terms of the inherent requirements of the particular job).
7.8 Comments can roughly be divided in the following three main categories:
A: Those supporting the principle of no pre-employment HIV testing (except where reasonably, justifiably and rationally warranted) as well as statutory enactment of this principle (i e the Bill as proposed with either option 1 or 2 of clause 3).
B: Those supporting the principle of no pre-employment HIV testing in general, but opposing statutory enactment of a prohibition on such testing.
C: Those supporting pre-employment HIV testing and thus opposing the proposed statutory prohibition.
7.9 The Actuarial Society of South Africa offers comments which pose certain questions and suggested an alternative without expressing a view either in favour of or against the preliminary proposals in Discussion Paper 72. The Society's views are reflected in paragraph 7.69 below.
7.10 Several commentators supporting the principle proposed, offered specific comments on the terms of the proposed Bill while those who were not in favour of the proposal suggested alternatives. These are discussed below.
* Comment in Category A (Support for statutory prohibition)
7.11 The majority of commentators (53)[355] support the project committee's basic proposals.
7.11.1 This group include mainly members of the medical and health professions; non-governmental organisations concerned with human rights and HIV/AIDS issues; medical and health researchers; health departments of local authorities; certain government departments - including the Departments of Health, Labour, Welfare and the South African Police Service as well as two regional offices of the Department of Justice and the Gauteng and Western Cape Departments of Health; a single private individual, one parastatal business institution[356] and the Chemical Workers Industrial Union (CWIU).[357] While the Department of Correctional Services could not provide express comment, it indicated that it has amended its HIV/AIDS policy so that currently no pre-employment testing is being carried out. The South African Medical Service (within the National Defence Force) indicated that it fully support the general policy of no pre-employment HIV testing in the public sector as suggested by Cabinet earlier this year.[358] The Interim South African Medical and Dental Council stated that it does not support a practice of pre-employment HIV testing - it however refrained from expressing a view on the detail of the proposed Bill. The Judge President of the Labour Courts indicated that, if the prohibition was enacted, his Courts would be able to deal "expeditiously" with the issue.
7.11.2 Respondents in this category mostly reiterated unequivocally their opposition to pre-employment HIV testing as a means of unfairly discriminating against persons with HIV. Some supplied additional motivation and confirmed the rationales relied on by the project committee in arriving at its preliminary conclusion.
7.11.3 They welcomed and supported the proposed legislation which they hope will clarify the existing legal position and thereby assist to curb the unfairly discriminatory, futile and counter-productive practice of pre-employment HIV testing that exclude thousands of otherwise healthy people from the workplace.[359]
7.11.4 Twenty-four[360] of the 53 commentators in this category expressly favour the option including the inherent requirements of the particular job as one of the factors to be taken into account in determining whether HIV testing is fair and justifiable. These include the National Association of People Living with HIV/AIDS (NAPWA), non-governmental organisations concerned with HIV/AIDS and human rights issues, the Medical Association of South Africa (MASA), the South African Police Service, the Department of Health and the Department of Welfare, the Gauteng Department of Health, the Western Cape MEC of Education and Cultural Affairs, most of the local authorities commenting on the Bill and ESKOM. (The Department of Labour preferred not to express an opinion on this.) Four further commentators (the LOA, SACOB, the AHI, and the Pretoria City Council Medical Officer of Health) although opposing statutory intervention, agreed that should legislation be enacted this particular option would be most suitable. Although the CWIU did not agree with creation of an escape clause as proposed, they indicated that should it be included in a Bill they would support this option. Only one commentator (ATICC Western Cape) expressly favoured the option not including the inherent requirements of the particular job. The ATICC is of the opinion that including reference to the inherent requirements of the particular job would provide a loophole for employers seeking to justify pre-employment HIV testing practices. The remaining commentators in this category did not expressly favour one or the other option.
7.11.5 Commentators who favoured including the inherent requirements of the particular job as one of the decisive factors are of the view that this option would require employers to prove that testing is a reasonable and fair requirement and thus protecting the rights of applicants with HIV to a greater degree than proposed in the alternative option.[361] HIV Management Services (Pty) Ltd and the ALN believe this option places a more onerous responsibility on an employer to justify the need for HIV testing and that it provides for a much tighter and fairer test. The Dental Association of South Africa, from the perspective of health professionals as employees, stated that there exists a certain degree of risk as part of their professional duties and that there may be instances when it would be necessary for the profession when employing staff, to require pre-employment HIV tests to safeguard both the professionals and their patients.
7.11.6 Several commentators[362] (specifically those active in the field of HIV/AIDS and human rights issues) who favoured including the inherent requirements of the particular job as a decisive factor, state clearly that they accept this provision as a compromise in balancing the rights of persons with HIV with those of the employer. The ALN observes that this approach is also in accordance with the LRA where discrimination against any of the protected grounds is justifiable only if it is based on an inherent job requirement.[363]
7.11.7 A single commentator (Dr Rajen Naidoo of the University of Natal's Occupational Health Programme) contends unconditionally that the escape clause provided in clause 3 (either option) is unacceptable and will provide employers with an unfair advantage against individuals or groups of prospective job applicants. He believes that a wealthy industry like the mining industry will have the resources to enable it to produce strong arguments for being excluded from the prohibition while prospective applicants will neither have access to the same resources nor will they have access to organisational support in the form of trade unions (not yet having been employed). He submits that from a public health perspective the need for pre-employment testing is irrelevant, and that providing an escape clause is contradictory to the contents presented in Discussion Paper 72. He suggests that if there are particular jobs or sectors for which testing is necessary those should be identified clearly in the Bill. The CWIU also preferred this view, but indicated that it would support option 2 should an escape clause nevertheless be enacted.
* Comment in Category B (Opposition to discrimination but also to statute)
7.12 Five commentators - representing mainly the business fraternity (including the LOA, AHI and SACOB) - are strongly opposed to statutory enactment of a prohibition against pre-employment HIV testing. They in general regard the 1996 Constitution and the LRA as providing adequate protection for persons with HIV. The fourth commentator in this category, Dr Clive Evian, also supports this view.
7.13 It should be noted that the LOA, AHI and SACOB represent considerable business interests.
7.14 Although not in favour of the proposed legislation, all commentators in this category submitted comments on the terms of the Bill, should it be decided to proceed with it. The LOA, SACOB, the AHI and the City Council of Pretoria Medical Officer of Health expressed themselves to be in favour of the option including the inherent requirements of the particular job as a decisive factor should the Bill be enacted. Dr Clive Evian did not comment on the choice of options.
* Comment in Category C (Opposition to statute stemming from support for testing)
7.15 A minority of six commentators[364] hold this view. They represent divergent interests and include single members of the legal fraternity, Prof Alan Whiteside from the University of Natal Economic Research Unit, the Chamber of Mines of South Africa, the City of Durban Pension Fund and a private individual.
7.16 Commentators in this category express the view that the Bill is inappropriate and premature; unnecessary and unwarranted; and that there is little rationale in allowing testing for other medical conditions but not for HIV.
7.17 Several reasons were advanced by opponents of a prohibition on pre-employment HIV testing and the enactment of such a principle. However, two main issues underlie these arguments: AIDS exceptionalism and the cost implications of prohibiting HIV testing - with AIDS exceptionalism as the most significant concern.
7.18 The main reasons advanced for not supporting the project committee's proposals include the following:
* AIDS exceptionalism
7.19 This was the major argument emphasised by all opponents of a statutory prohibition on pre-employment HV testing.
7.20 Dr Clive Evian, while he agrees that HIV/AIDS lends itself to the potential for unfair discrimination and may need special consideration in a Bill as proposed, submits that singling out HIV for a special Bill may draw undue attention to the issue and in turn promote more subtle discriminatory practices. He requests the Commission to seriously consider whether existing legislation such as the LRA and the 1996 Constitution do not provide sufficient protection to the job applicant. He suggests that what may rather be needed is some guidance on interpreting the current law in terms of HIV. SACOB supports this view and suggests that as sufficient legislation already exists to protect persons with HIV, there may be a problem with lack of knowledge of this legislation on the part of those whom it is designed to protect. Instead of introducing further legislation attention should be focussed on educating people about the nature of their rights and the protection already afforded them under such existing legislation.
7.21 The preferred view of the LOA is not to have HIV specific legislation, but rather legislation which affords those who suffer from any life threatening condition protection from discrimination. The LOA believes that by enacting HIV-specific legislation, emphasis will be placed on the exclusivity of HIV with resultant stigmatisation. The LOA furthermore draws attention to the fact that no precedent exists which specifically prohibits pre-employment testing in international law. However, HIV has been interpreted by the courts as a disability in terms of the Americans with Disabilities Act, 1990.[365] The Australian Disability Discrimination Act, 1992 expressly outlaws discrimination on the basis of HIV/AIDS.[366]
7.22 According to Judges of the Northern Cape Division of the High Court of South Africa the considerations favouring pre-employment testing outweigh those against such testing. They ask why persons with HIV should be specially protected as opposed to those with other diseases, for instance, heart disease.
7.23 RS Green comments that the draft Bill infringes on the rights of others in that the Bill will result in additional expense and loss for employers. He finds the proposed legislation unnecessary and unwarranted.
7.24 The City of Durban Pension Fund draws the Commission's attention to the Fund's policy of discretionary HIV testing: The Fund holds the opinion that it must test for HIV (since not testing would also preclude testing for any other restricting ailment - which would be unacceptable to any benefit provider) but not discriminate against a person with HIV. This could be achieved by testing only in cases where the City Medical Officer of Health considers testing to be necessary; and by confidential reporting to the Fund, not of the test result, but only that restricted membership of the Fund is to be given (in the case of a positive test result).
7.25 Prof Alan Whiteside regards the Bill as unnecessary, premature and undesirable since, amongst others, the Bill singles out (and thus maintains the stigma surrounding) HIV/AIDS; the Bill is premature as it as unknown what the impact of the epidemic will be; new tests are available which will allow for identifying how far advanced HIV disease is - these need to be considered as well as the potential for genetic screening for other diseases and the Bill should not focus just on HIV.
7.26 The Chamber of Mines of South Africa supports the comments of Prof Whiteside. It states that the proposed legislation represents a radical intervention and that the justification for dedicated legislation, issues concerning occupational health, the appropriateness of certain public health measures and the epidemiology of the disease require further consideration. The Chamber is of the opinion that dedicated legislation is not justified: Special legislative treatment of HIV is likely to increase rather than decrease stigma. Future developments in testing for HIV (which may render testing more cost effective and reliable) have not been taken into account. The Chamber submits that the Bill concentrates exclusively on the rights of infected persons whilst ignoring all other sectoral and individual rights and the costs of the epidemic to society.
7.27 The Actuarial Society of South Africa is also concerned that legislation specifically aimed at addressing issues pertinent to HIV/AIDS may serve to strengthen negative perceptions about the disease which could have serious repercussions on, inter alia, occupational health issues.
* An employer should not be obliged to take on an applicant with "advanced disease"
7.28 SACOB records that although the individual with HIV should not be denied the opportunity to work and earn a living, any protection for such individuals should not be at the expense of other stakeholders. As stated in paragraph 3.6.2.1 above, the Chamber is of the view that the important issue for employers is not so much whether an employee has HIV infection, but rather his or her health status in light of the infection and particularly the short-term prognosis. Dr Clive Evian shares this view. Both SACOB and Dr Evian express concern about the prospect of employers being forced to employ, train, and promote employees who may already have "advanced HIV disease". Dr Evian states that an employer should not be obliged to employ an applicant with advanced disease. SACOB further believes that when at any pre-employment examination there is clinical evidence that a prospective employee may be suffering from AIDS, medical personnel have the right to test that individual to confirm the diagnosis as with any other medical condition. Should a prospective employee already have clinical AIDS, confirmed by such testing, he or she may not be able to fulfill their employment contract and therefore the employer should be able to refuse such applicant employment.
* The project committee's preliminary proposal creates an imbalance between the rights of all parties involved
7.29 SACOB believes that a provision requiring an employer to apply to the Labour Court for authorization to subject an applicant for employment to testing for HIV places an unfair onus on the employer to justify any exception and fails to strike a balance between the rights of all parties involved. Since the normal role of the Labour Court is to ensure that rights are enforced, they find it inappropriate to place on the Court the role proposed. The whole process would also be expensive and time-consuming for the employer. MASA added that the costs of Labour Court applications may prohibit the small employer from applying for justifiable exceptions.
* Costs
7.30 The AHI observes that our country cannot afford anything that will increase production costs or influence job creation and productivity negatively or will further regulate an already highly regulated labour market. The AHI is of the view that the proposed Bill will have all these negative effects on the labour market and the economy.
7.31 The Chamber of Mines of South Africa expressed the opinion that the economic consequences of the Bill for employers have not been addressed satisfactorily in the Bill or the Discussion Paper.
7.32 The City Council of Pretoria Medical Officer of Health is concerned about the cost implications of the proposed court procedure for smaller businesses and states that with more than 50% of businesses in our country being small, we cannot afford the proposed legislation. He argues that the cost of testing is small in relation to the cost of the envisaged court procedure. He submits that workers with HIV are already accommodated in the same way as applicants for employment suffering from a variety of medical conditions while more and more workers with chronic diseases are put on surveillance programmes. The same could be done with persons with HIV. He concludes that knowledge of the health of a worker benefits everyone - including the employee. If employers are willing to budget for the cost of testing, it takes a burden off the government and other benefit providers. Testing can prove to be most valuable as the results can be utilised to determine the real onslaught of HIV and anticipate effects on the economy and society. The AHI is of the view that pre-employment HIV testing may be warranted under certain circumstances, and even though the proposed Bill leaves this option open, it will be a costly and time-consuming exercise especially for small and medium size enterprises.
* A prohibition on pre-employment HIV testing will not address discrimination against persons with HIV/AIDS successfully
7.33 The Actuarial Society of South Africa accepts that it is in public interest that persons with HIV remain productive within the country for as long as they are capable of performing an occupation for financial gain. However, to ascertain whether the proposed legislation would achieve this objective, it is suggested that the macro-economic impact of the proposed Bill be examined. The AHI does not consider that the prohibition will succeed in effectively addressing the discrimination and stigmatisation that persons with HIV/AIDS will have to cope with and which it believes is the driving force behind the proposed Bill. The AHI believes that because of lack of a national strategy to cope with the disease, different initiatives attempt to deal with the problem in ignorance of one another - they find the Bill to be an example of such a well-meant effort.
* A prohibition on pre-employment HIV testing will not assist the public health aims of prevention of the spread of HIV
7.34 Dr T L Patycki (from the St Helena Hospital, but commenting in his private capacity), states that the project committee's approach is aimed at the protection of infected persons with no or little concern about the spread of the pandemic. Dr Patycki is in favour of HIV testing forming part of general pre-employment medical tests. He emphasises that HIV infection is problematic in the sense that the illness can represent a spectrum of conditions with unpredictable consequences in the work environment and predicts that the proposed Bill will make controlling the epidemic even more difficult.
7.35 According to the Chamber of Mines of South Africa the project committee has especially failed in not taking into account the particular link between HIV and tuberculosis which is of very real consequence to the mining industry (the single largest industry employer of labour in the country). Exposure to silica dust is one of the factors that increases the risks of contracting tuberculosis. The mining industry therefore constitutes an environment where a high risk of tuberculosis infection is present. The Chamber states that the proposed Bill overlooks the fact that employers may run the risk of incurring increased liability for their failure to protect employees and prospective employees with HIV from exposure to tuberculosis in the mining sector. In this regard the Bill is difficult to reconcile with the provisions of the Mine Health and Safety Act, 1996 which place a duty on employers to maintain a healthy and safe work environment. It is thus submitted that the testing of employees to determine their suitability for employment in occupations with a high risk of contracting tuberculosis should not be deemed to be unfair discrimination.
7.36 The Chamber further states that experience has shown that the strategies adopted for the containment of HIV thus far have been ineffective. In the longer term the programme of education to achieve behavioural changes which would prevent further transmission must be made to succeed. However, in the short and medium term active management of the disease is vital and in this regard the proposed Bill would seriously hamper public health responses to the spread of HIV through the identification of HIV positive individuals and appropriate counselling and management. The Chamber submits that prevention of new infections depends on knowledge of who is infected. It points to recently proposed legislation in Zimbabwe which emphasises the rights of women in this regard. The Chamber suggests that high risk groups who might legitimately qualify for screening with the intention of prevention would include new recruits for employment. It observes that the LRA does not preclude public health intervention possibilities.
* Unfair selection
7.37 The Actuarial Society of South Africa expresses concern that the prohibition of pre-employment HV testing could give rise to unfair selection against employees by employers: the introduction of the proposed Bill may have the desired effect of denying employers the opportunity of carrying out unauthorised pre-employment testing, but it may result in unfair discrimination against people who are refused employment on unjustifiable suspicions as to their HIV status.
7.38 Prof Alan Whiteside supports this and states that prohibition of pre-employment HIV testing may lead to other forms of selection, for instance, employment of older women and introducing questionnaires on life style.
7.39 Dr Aart Hendriks of the Department of Health Law, University of Amsterdam argues that prohibiting all pre-employment HIV testing may obstruct the employment opportunities of persons with HIV: some people with HIV would need an employer to accommodate their needs (for instance to enable them to take their drugs or to have regular breaks) and risk harming their own health by not revealing their health status.
The following comments were offered on the terms of the proposed Bill:
* Scope of the Bill
7.40 Dr Aart Hendriks questions the narrow scope of the Bill. He suggests extending it to include all medical conditions or impairments irrelevant to the performance of the essential job-related functions. As an alternative to this he proposes prohibition of all forms of pre-employment exams (tests), unless carrying out a medical examination is reasonably warranted, and refers the project committee to the Dutch "Wet op de Medische Keuringen".[367]
* Voluntary disclosure of HIV status
7.41 The National Progressive Primary Health Care Network expresses concern about protection of individuals (presumably both employees and applicants for employment) who voluntarily disclose their HIV status.
* Access to employment versus access to employment benefits
7.42 The City Council of Pretoria Personnel Services Department submits that the real problems regarding HIV/AIDS in the workplace are related to employment benefits. It suggests that the proposed Bill clearly distinguish between testing for employment purposes and testing for the sake of determining status of access to benefits.
7.43 The AHI strongly endorses the view that the right to underwrite be protected at all times. They emphasise that this distinction between access to employment and access to risk benefits should be maintained, in the event of legislation being enacted. If anything, the matter could be made even more clear by indicating that the prohibition on pre-employment testing in no way affects the right to conduct a proper benefit or risk assessment.
7.44 The LOA submits that a distinction should be drawn between pre-employment and pre-benefit testing on the basis that taking into account the rights of non-HIV infected individuals in determining access to benefits would not be discriminatory. An alternative would be to offer persons with HIV alternative benefits taking into account their unique circumstances. The Association suggests that such alternatives be investigated.
* Statutory exception or escape clause (clause 3 of the proposed Bill)
7.45 Dr Rajen Naidoo recommends the removal of the escape clause from the proposed Bill on the basis of the unfair advantage being created by it in favour of employers against individuals or groups of prospective job applicants. He is of the view that if, as the escape clause implies, there are particular job descriptions or job sectors for which pre-employment HIV testing is necessary, it is the task of the Commission to identify these jobs or sectors and to include them in the Bill. He suggests including such a list in a schedule to the Bill. He submits that the list or schedule be finalised either through NEDLAC structures or other appropriate tripartite statutory bodies.
7.46 Several commentators proposed that express categories of exception be incorporated within the proposed Bill rather than being left to the discretion of the Labour Court. These include Dr Clive Evian, the Breede River District Council AIDS Action Committee, the LOA, the South African Catholic Bishops' Conference, and Dr Leslie London and Ms Catherine Mathews. The LOA urges that recommendations in this regard be based on sound medical and scientific research.
7.47 The CWIU shares this view. Its major concern is that the envisaged court driven process would operate to the benefit of companies because of their advantaged position as regards resources (financial and legal.) Prospective job applicants will not have access to such resources. The CWIU therefore proposes that the escape clause provides also for the following :
7.48 Along the same lines SG Abrahams recommends that there should be compulsory pre-employment testing for HIV in "high risk" cases with the onus on the prospective employee to justify departure from this standard, while testing should be prohibited for "low risk" cases. The Greater Benoni City Council Health Department and the City Council of Pretoria Medical Officer of Health supported these views.
* Clarification of terms and definitions
7.49 Several commentators[368] requested that specific terms used in the Bill be clarified. These terms included "medical facts", "social policy", "inherent requirements of the particular job", and "employment conditions" as criteria in the exception clause. The LOA observed that the definition of "employment" makes no reference to the inclusion of employee benefits (which by implication would entitle an employer to test employees for access to benefits). The Association suggests that the definition be amended to include access to fund benefits.
* Concerns regarding jurisdiction of the Labour Court
7.50 Several commentators including MASA, Dr Leslie London and Ms Catherine Mathews, ESKOM and the City of Durban Medical Officer of Health expressed concern about the practical implications of granting the Labour Court the proposed jurisdiction.
7.51 Commentators' concerns related to the costs of Labour Court applications which may prohibit small employers from applying for justifiable exceptions; sufficient access to the process of the Labour Court for it to be effective - especially for individuals with neither knowledge nor means to approach the Court; and a need for applications to be processed expeditiously so as not unduly to delay the staff recruitment process. ESKOM recommend that the Commission for Conciliation, Mediation and Arbitration (CCMA)[369] be vested with jurisdiction to conciliate such matters on an urgent basis. They further suggest that the matter should proceed to the Labour Court only on failure of conciliation.
7.52 HIV Management Services (Pty) Ltd is concerned about a possible lack of HIV literacy in the Labour Court. While it accepts that the Court would probably call for expert opinion, it suggests that such expertise be identified early on as a panel for referral and that the ALN provide intermediate training and sensitivity to Court officials. In this regard the City of Durban Medical Officer of Health draws attention to provision in the Compensation for Occupational Injuries and Diseases Act, 1993 (Act 130 of 1993) for the establishment of Medical Advisory Panels on a regional basis. Dr Clive Evian supports this and recommends that a specific body of expertise representing recognised HIV-clinical specialists, public health or occupational health specialists, representatives of people with HIV/AIDS, and representatives from the organised business, labour and government sectors be appointed to advise the Labour Court. Dr Evian further suggests that the Court may need to have the power to commission independent research to establish if any specific occupation is indeed detrimental to an individual with HIV and to permit exclusion on this basis.
* Possible appeal against decision of the Labour Court
7.53 The LOA observes that no express reference is made in the Bill to an appeal against any decision by the Labour Court.
* Costs
7.54 The City Council of Pretoria Medical Officer of Health enquires as to who will bear the costs of the court application and the testing.
* Practical application of the proposed legislation
7.55 The National Progressive Primary Health Care Network observes that changing the legal framework would be hollow unless substantial efforts are made to inform and educate the public. It suggests that strategies be envisaged to inform individuals and the business fraternity about their rights, responsibilities and choices and that the Commission include recommendations in this regard in an interim report. The Network further suggests that government departments (including the Departments of Labour and of Health) as well as other stakeholders need to be involved in efforts to ensure implementation of law reform.
* Distinction between applicants and existing employees
7.56 The City Council of Pretoria Personnel Services Department submits that the proposed Bill should not be restricted to job applicants. They maintain that should the Labour Court agree with an employer that HIV testing is necessary for a specific job applicant or category of applicants, it follows that existing employees exposed to the same risk factors should also be tested.
7.57 The National Progressive Primary Health Care Network is concerned about protection of existing employees who are known to be HIV positive and who could be subjected to HIV testing. The LOA suggests that the proposed Bill must reflect that HIV testing of existing employees is prohibited in certain circumstances.
* Proposal by the Department of Labour to integrate legislation on pre-employment HIV testing into the Department's draft Employment Equity Bill
7.58 The Department of Labour (the Department), in its supportive comment[370] on Discussion Paper 72, expressed a preferred view that the project committee's legislative proposals for a prohibition on pre-employment HIV testing as embodied in the Prohibition of Pre-employment HIV Testing Bill (HIV Bill) be included in the Department's Employment Equity Bill[371]. The main reason for this was that such inclusion will be in accordance with the Department's policy of dealing with labour issues in a few comprehensive key statutes rather than a number of smaller statutes. The Department derives further motivation for its proposal from the following:
7.59 The Department's proposal carries the support of the Minister of Labour.
* Defining HIV as a disability in general labour legislation
7.60 SACOB believes it is preferable to define HIV/AIDS as a disability so that it will be covered under the LRA. They submit that this would be in line with international practice since few countries have HIV/AIDS legislation of the type contemplated.
* Regarding existing legislation (the 1996 Constitution and the LRA) as affording sufficient protection to applicants for employment
7.61 Commentators from the business sector (the LOA, Chamber of Mines of South Africa, AHI) as well as Prof Alan Whiteside and Dr Clive Evian appealed to the Commission to consider whether the existing legislation such as the LRA and the 1996 Constitution do not provide sufficient protection to the job applicant.[375] Dr Evian suggested that guidance on interpreting the current law is possibly necessary, while the AHI observed that there may be lack of knowledge of existing legislation on the part of those whom it is designed to protect. The AHI suggested that this could be rectified by education and information rather than further regulation.
* Developing a national guideline for testing for HIV in the workplace
7.62 The City Council of Pretoria Medical Officer of Health suggests that as an alternative to legislation, guidelines concerning pre-employment HIV testing be drawn (as is the case with for instance diabetes mellitus, hypertension etc) by MASA and the South African Society for Occupational Medicine (SASOM).
7.63 Dr Aart Hendriks is of the opinion that the seemingly conflictive interests that may be reflected in a prohibition on pre-employment HIV testing (on the one hand promoting, but in fact possibly also obstructing the employment opportunities of persons with HIV[376]) could probably best be reconciled by precisely defining the role, tasks and competencies of physicians performing pre-employment medical examinations. These professionals should, first of all, be bound to the principle of confidentiality and respect the right to privacy of a candidate worker. In this context he suggests inviting MASA to develop a code of conduct for physicians performing pre-employment medical examinations instead of commissioning the Labour Court with the task of authorising pre-employment testing. He observes that by focussing on the role of physicians performing pre-employment medical examinations, the negative results that a prohibition of HIV testing may have, could possibly be avoided.
* Enacting broader legislation which would include other comparable medical conditions and not only HIV
7.64 Instead of HIV specific legislation, the LOA would prefer legislation that affords those who suffer from any life threatening condition protection from discrimination. This is supported by Dr Aart Hendriks who suggested extending the narrow scope of the HIV Bill to include all medical conditions or impairments irrelevant to the performance of essential job-related functions.[377]
* Deal with the issue of pre-employment HIV testing by way of general anti-discrimination legislation
7.65 The National Progressive Primary Health Care Network expresses the opinion that additional discussion and proposals need to be put forward in relation to general protection from unfair discrimination of individuals living with HIV. The Network submits that such discussion needs to go beyond the current discussion of pre-employment HIV testing.
* Pursuing a traditional public health approach by focussing legislation instead on prevention of transmission of HIV - as for instance in the United States HIV Prevention Act, 1997
7.66 The Chamber of Mines of South Africa argues that the Commission should adopt legislative intervention similar to the HIV Prevention Act of 1997 which has recently been introduced in the House of Representatives in the United States. This Act (which is currently still at committee discussion stage) covers HIV testing of sexual offenders; improved HIV epidemic measurement; partner notification; protections for patients and health care providers; HIV notification for insurance applicants and adoptive parents; criminalisation of intentional HIV transmission; and strict confidentiality for implementation of the provisions of the Act.[378]
* Assessment of the severity of the health condition instead of just HIV status
7.67 Dr Clive Evian suggests that the Bill make provision for an employer to be able to assess the health status of an applicant, including HIV, and to assess the severity of the condition. He stresses that an employer should have the right to reject employees who show objective evidence of "very advanced disease". He observes that an individual with HIV can appear superficially fit for work even though he or she has a very advanced stage of HIV infection. In practice the assessment of the stage of HIV infection could be done after an initial employment contract has been entered into.
* More research and evaluation on the economic impact of the proposed legislation before introducing such principles
7.68 Prof Alan Whiteside as well as the Chamber of Mines of South Africa suggests that, at the very least, far more research and thought needs to go into a Bill as proposed and its possible implications.
7.69 The Actuarial Society of South Africa is of the view that the introduction of legislation to promote some form of societal change may be justified insofar as it actually succeeds in achieving its aims. The Society accepts that it is in public interest that persons with HIV remain productive within the economy for as long as they are capableof performing an occupation for financial gain. To ascertain whether the proposed Bill would achieve this objective it is suggested that the macro-economic impact the proposed Bill may have in the long term, be examined.
[350] See fn 277 above.
[351] NEDLAC Report on the South African Law Commission's Proposals on Aspects of the Law relating to HIV/AIDS as noted by the NEDLAC Executive Council on 29 August 1997.
[352] The National Economic, Development an Labour Council Act, 1994 sec 5(1)(c).
[353] Ibid sec 8.
[354] See par 6.7 above.
[355] Comments numbered 1, 3, 5, 6, 7A and B, 9, 11, 14, 15A and B, 17, 18, 19, 20, 22, 23, 24, 25, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 48, 49, 50, 52, 53, 54, 55, 56, 57, 58, 59, 50, 61, 62, 63 and 64 in Annexure A.
[356] ESKOM.
[357] The CWIU stated in its comments that it believed that the Congress of South African Trade Union (COSATU) holds similar views.
[358] See par 2.33 above.
[359] See eg comments numbered 6, 23, 24, and 50.
[360] Comments numbered 5, 7A and B, 14, 15A and B, 18, 19, 20, 30, 31, 33, 34, 35, 37, 38, 41, 42, 48, 50, 52, 54, 56, 57, 60 and 63.
[361] See eg the comments of NAPWA.
[362] Eg HIV Management Services (Pty) Ltd; the AIDS Consortium; ALN; and the National Progressive Primary Health Care Network.
[363] Cf sec 2(2)(c) of Part B of Schedule 7 of the LRA.
[364] Comments numbered 2, 4, 10, 13, 16 and 51.
[365] Cf par 5.17-5.17.6 above.
[366] Cf par 5.22-5.25.2 above.
[367] This Act proposes to strengthen the legal position of persons subjected to medical examinations in general by protecting them against "an investigation specifically aimed at obtaining knowledge of a possibility of a serious disease for which there is no remedy ... or knowledge of a present and untreatable disease which nay manifest only after a long period" (article 3). Furthermore, examinations in connection with the commencement of an employment relation are performed only if the fulfillment of the function to which the employment relation refers makes particular demands regarding medical fitness. Medical fitness for the function is defined as "the protection of the health and safety of the examinee and of third parties during the performance of the work in question" (article 4). However, a medical examination for "AIDS or seropositivity for AIDS" may be carried out when insurance exceeds a certain limit (article 5). (Our translation of the Dutch Wet op de Medische Keuringen - Eerste Kamer vergaderjaar 1996-1997, 23 259, nr 91.)
[368] Eg comments of Dr London and Ms Mathews, the Breede River District Council AIDS Action Committee, the ALN, HIV Management Services (Pty)Ltd, the Department of Welfare, the AHI and the LOA.
[369] Established by sec 112 of the LRA. For more detail see par 8.52 below.
[370] As set out in a departmental letter of 2 August 1997 and elaborated on at a meeting between project committee members and representatives of the Department (Mr Les Kettledas, Deputy Director-General: Labour Relations, Human Resources Development and Career Services; Mr Loyiso Mbabane, Director: Employment Equity; and Ms Lisa Seftel, Director: Minimum Standards) on 8 August 1997 and in a submission to the full project committee by Ms Seftel at a project committee meeting on 30 August 1997.
[371] Reference throughout is to Draft 14 of the Bill.
[372] The HIV Bill eg utilises the definition of "employee" (see sec 2(2)(a) of Part B of Schedule 7 of the LRA) and invokes the jurisdiction of the Labour Court (see sec 151 of the LRA).
[373] Employment Equity Bill, clauses 25 and 27.
[374] See par 5.13.3 above.
[375] See also the arguments submitted on AIDS exceptionalism in par 7.19-7.27 above.
[376] See the reference to his comments in par 7.39 above.
[377] See also par 7.40 above.
[378] Cf also the discussion of public health intervention in par 2.35-2.50 above.
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