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8.1 In evaluating the comments, concerns and suggestions of respondents in the context of non-discrimination and equality, the Commission's aim was to find a solution which would serve to protect the rights of persons with HIV while at the same time accommodating and balancing the major concerns of opponents of its preliminary recommendations.
8.2 It is clear from the comments on the Commission's preliminary recommendations in Discussion Paper 72 that the overwhelming majority of stakeholders support the principle of no pre-employment HIV testing unless such testing is reasonably, justifiably and rationally warranted.
8.3 The minority of respondents who did not support this principle[379] mainly relied on the argument of AIDS exceptionalism. They submitted either that there is little or no reason for singling out persons with HIV for special protection, or that such emphasis on HIV/AIDS will maintain the present stigma surrounding HIV/AIDS. The concern related to AIDS exceptionalism was also raised with regard to the need for a statutory intervention and is addressed in par 8.14 to 8.16 below.
8.4 Although these comments were of a small minority, the Commission has endeavoured to accommodate them in its interim recommendations.
8.5 The need for statutory intervention was supported by the majority. However, strong arguments were also advanced against statutory intervention - although almost exclusively by the business sector. Opponents to legislative intervention generally regarded the 1996 Constitution and the LRA as providing adequate protection for persons with HIV. AIDS exceptionalism and the cost implications of prohibiting HIV testing are the two major issues underlying this opposition. In this regard opponents argued that in the light of existing legal protection, to develop HIV-specific legislation would be to further increase stigma and discrimination against persons with HIV and create undue hardship for businesses by directly increasing their operational costs.
8.6 Specific concerns raised against the proposed legislative intervention may be evaluated as follows:
* The availability of current legislation
8.7 Several commentators argued that the 1996 Constitution and the LRA provided sufficient legal protection and that there was therefore no need for further statutory intervention.[380] The Commission however does not agree with this argument.
8.8 With regard to constitutional protection, the Commission is of the opinion that although the 1996 Constitution protects inter alia the rights to equality, human dignity, freedom and security of the person, privacy, and fair labour practices, these are broad constitutional principles which the drafters intended and required to be further developed by the courts and through legislation.[381] Thus the rights to human dignity,[382] freedom and security of the person,[383] privacy,[384] and fair labour practices[385] simply set out the broad framework of the extent of the individual rights in the relation to protection from state interference. Without further development by the courts or the legislature they remain as principles rather than specific prohibitions. As the Constitutional Court explained in Prinsloo v Van der Linde:
Given the history of this country we are of the view that 'discrimination' has acquired a particular pejorative meaning relating to the unequal treatment of people based on attributes and characteristics attaching to them. We are emerging from a period of our history during which the humanity of the majority of the inhabitants of this country was denied. They were treated as not having inherent worth; as objects whose identities could be arbitrarily defined by those in power rather than as persons of infinite worth. In short, they were denied recognition of their inherent dignity. Although one thinks in the first instance of discrimination on the grounds of race and ethnic origin one should never lose sight in any historical evaluation of other forms of discrimination such as that which has taken place on the grounds of sex and gender. In our view, unfair discrimination ... principally means treating persons differently in a way which impairs their fundamental dignity as human beings, who are inherently equal in dignity.[386]
8.8.1 It is to be noted that the 1996 Constitution primarily applies vertically (between state and subject).[387] Section 8 within the Bill of Rights states :
(1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or juristic person, and so to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.
It seems clear from this section that the drafters intended only a limited horizontal application of the Bill of Rights. This position is however subject to an exception in the equality clause where the drafters specifically set out that this clause will apply to "anyone".[388] Hence the constitutional rights will not necessarily on their own protect individuals working outside of the state service.[389]
8.8.2 Section 7(2) of the Constitution further provides that "(T)he state must respect, protect, promote and fulfil the rights in the Bill of Rights". It is clear therefore that the state has a duty to develop these rights in such a manner that they protect a myriad of different situations. The Commission considers that the protection of the dignity of persons with HIV requires that their access to continued employment be protected legislatively. Such legislation will constitute an embodiment of the constitutional principles referred to above.
8.8.3 The Constitution does not prohibit pre-employment HIV testing per se. Instead it prohibits unfair discrimination on several grounds, including "disability".[390] The relevant provisions with regard to unfair discrimination on ground of "disability" have as yet not been interpreted by our courts to include HIV/AIDS and thus presently offer no express assurance of protection for persons with HIV. In order to claim protection under the equality clause, a job applicant or employee would have to show that the state or any other person used the results of an HIV test to discriminate unfairly against them.
8.8.4 Finally the Commission is of the view that leaving it up to job applicants or employees themselves to procure enforcement of their constitutional rights would not meet the principle of a prohibition on pre-employment HIV testing which would be accessible and cost-effective to use. Should a person wish to claim protection from a constitutional right, they could become involved in very expensive and protracted legal action requiring the assistance of specialist constitutional lawyers.
8.9 The LRA protects both job applicants and employees from being prevented from exercising any right conferred by the Act.[391] This would mean that any employer who uses an employee's HIV status to discriminate unfairly against him or her, would have committed an unfair labour practice.[392] These provisions however only protect an employee from unfair discrimination and do not prohibit an employer from requesting an employee or job applicant to submit to an HIV test.
8.9.1 The unfair labour practice definition found in section 2(1) of Schedule 7 of the LRA is part of a schedule of transitional arrangements, pending express further legislation, and would thus not remain on the statute books indefinitely - hence the departmental initiative in enacting the Employment Equity Bill.[393] Although this definition may currently provide protection against "unfair discrimination" on several grounds including any "arbitrary ground" or "disability"[394] and against "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",[395] it is not envisaged that this protection will exist indefinitely within the LRA. The Commission is therefore of the view that a statutory vehicle should be found which would provide long term protection against pre-employment HIV testing.
8.9.2 Although the LRA provides protection against unfair discrimination to both employees and job applicants, the question remains as to whether the courts would actually confer this protection on persons being subjected to HIV testing. Uncertainty exists in that the terms of "any arbitrary ground" and "disability" have not been defined. It is therefore still a matter of debate as to whether they could be used to protect persons with HIV.
8.9.3 The Commission further notes that the LRA does not cover those employed within the South African National Defence Force, the National Intelligence Agency and the South African Secret Service.[396]
8.9.4 Finally the Commission was concerned that despite the LRA having been operational for more than 12 months the practice of pre-employment HIV testing has palpably continued.[397]
8.10 In the light of the above the Commission is of the view that with the current uncertainty regarding the legality of pre-employment HIV testing and the potential for unfair discrimination regarding HIV/AIDS, a specific statutory intervention is warranted.[398]
* Economic implications of the proposed intervention
8.11 The suggestion of the Actuarial Society of South Africa[399] that the macro-economic impact of the proposed legislative intervention be ascertained before its enactment, was not pursued beyond an enquiry for further particulars of such proposed study. The Commission was of the opinion that although further research may assist with the development of our understanding of the nature of the costs to individual employers and the economy as a whole, such research was not necessary at this point as the Commission had taken cost issues into account in its proposals.
8.11.1 First, embodying a proposal for a statutory prohibition on HIV (and other forms of) testing in a prohibition does not in itself impose direct costs on employers - instead it simply prohibits them from certain exclusionary action. Second, the Commission's proposals allow for a flexible standard which enables cost factors to be taken into account in determining what is fair and justifiable in the circumstances. Third, the recommendations made, deal expressly with the issue of pre-benefit testing. In doing so the proposals aim to provide leeway for employers and unions concerned with the cost implications of the HIV/AIDS epidemic on their benefit schemes.
8.12 It was accepted within the project committee that economic realities may induce the business sector to evade the proposed prohibition by exploring and finding alternatives to replace any perceived forced employment of persons with HIV, for instance by avoiding employing people at all or employing only people in certain categories (for example older people). In doing so it would not be necessary for employers to test for HIV. The Commission accepts that such evasive action is not readily susceptible to legislative control.
8.13 As stated in paragraph 4.10 above, the costs of the epidemic will not be contained by simply excluding persons with HIV from the workforce. Thus an approach based on exclusionary principles would not reduce or remove the costs - it would simply displace them.
* AIDS exceptionalism
8.14 The strongest opposition to the Commission's proposal for a specific prohibition of HIV testing lies in the argument of AIDS exceptionalism. The Commission took note of the concerns of several commentators who expressed the view that by creating HIV- specific legislation discrimination and stigma against persons with HIV is perpetuated. Others could not find motivation for singling out HIV as a disease for specific legislative treatment. The latter concern was also emphasised by the Department of Labour in the context of integrating the HIV provisions with the Department's Employment Equity Bill.
8.15 Accordingly the Commission amended its proposals in order to cover testing for any medical condition and not just testing for HIV.[400]
8.16 It is submitted that this adapted approach of placing HIV/AIDS issues firmly into the same category as testing for "any other medical condition" is an approach which is also more consistent with international precedents.[401]
* Employing people with "advanced disease"
8.17 Some commentators felt that employers should not be obliged to employ persons with "advanced disease" and that they should therefore be entitled to test for HIV to determine an employee's ability to perform in the future.[402]
8.17.1 The Commission is of the view that its proposals do not require employers to employ incapacitated workers.[403] This is so because pre-employment medicals may still be undertaken under the proposed legislation provided they are used to objectively determine an employee's ability to meet the inherent requirements of the particular job and that arbitrary tests or criteria are not used.
8.17.2 Furthermore, in an environment of non-discrimination and the protection of the rights of persons with HIV, more people will be encouraged to voluntarily disclose their HIV status to their employer. This would lead to destigmatation of HIV/AIDS. The involvement of people with HIV in workplace prevention programmes would enhance the opportunity for employers to supply information and education aimed at the behaviour change necessary for containment of the spread of HIV.[404]
* Unfair selection
8.18 A few commentators noted that the proposed prohibition would place an unfair burden on employers as they would be unable to select "the best person" for the job.
8.18.1 However the Commission is of the opinion that the criteria for employment remain objective criteria which are related to the inherent requirements of the job. The proposals therefore do not infringe on an employer's right to select the most suitable candidate for a job - they simply require the employer to use objective and rational criteria in the employment process.[405]
* Proposals for alternative legislative options
8.19 Several commentators proposed that alternative legislative vehicles be used to protect the rights of persons with HIV. Each of these proposals will be dealt with separately.
+ Define HIV as a "disability"
8.19.1 Some commentators felt that if HIV was defined as a "disability" this would enable existing legislation to be used to protect the rights of persons with HIV.
8.19.2 The Commission submits that this is not an appropriate route at this point. Firstly, the White Paper on Disability (which will set out the Government's policy on disability and protective legislation for people with disabilities) is yet to be published. Secondly, the issue of whether HIV would be classified as a "disability" in terms of either the constitutional definition or the provisions within the LRA have not yet come before our courts - we are therefore uncertain of the approach they will take and do not want to rely solely on this natural progression of the law.[406]
+ Include option for applicants or employees to consent to disclosure or testing
8.19.3 The Commission has given careful consideration to arguments that the right of individual autonomy in the context of contractual freedom should encompass the right of a job applicant or employee to consent to disclosure of his or her HIV status or to undergo HIV testing. In addition to the considerations underlying these arguments, the Commission recognises that job applicants may themselves in an effort to enhance their chances of being employed, volunteer their negative HIV status. It is neither feasible nor desirable to seek to legislate against this possibility. What is more, the Commission recognises that employers supplied with this information may, in selecting whom to employ, covertly discriminate unfairly against those applicants who do not volunteer this information.[407] This possibility will in practice also prove difficult to curtail.
8.19.4 The Commission has nevertheless come to the conclusion that a general exception for consent to disclosure or testing, except where such disclosure or testing is otherwise justifiable, would subvert the main intended effect of the prohibition.
8.19.5 Whether in the context of a job application a disclosure or submission to testing can ever be truly voluntary is debatable. In any event, even if the "consent" can indeed be regarded as authentic, public policy in the view of the Commission requires that discrimination against those applicants who refrain from volunteering, or refuse to proffer, similar consent should be impermissible.
8.19.6 Furthermore, as observed earlier, the overall economic advantages of permitting otherwise healthy employees with HIV to remain in employment are substantial.
+ Use existing legislation
8.19.7 The Commission's views on the inadequacy of existing legislation to adequately cover the prohibition of pre-employment HIV testing are set out in paragraphs 8.7 to 8.10 above.
+ Develop broader HIV/AIDS anti-discrimination legislation
8.19.8 The Commission believes that although there are many strong arguments for the use of broad HIV/AIDS anti-discrimination legislation, any such proposals could be opposed on the basis of AIDS exceptionalism. It has in any event not ruled out the possibility of developing such a statute in future. Pre-employment HIV testing was seen as an on-going and urgent problem which the project committee considered should be dealt with as soon as possible.
+ Enact legislation on public health issues[408]
8.19.9 Attempts to return to the traditional public health approach with regard to HIV/AIDS, as set out in paragraph 2.47 above, have met with fierce opposition in the United States.[409] Opponents denounced these initiatives as an attempt to federalize policies that do nothing but stigmatise and punish people living with HIV/AIDS. They moreover submit that these measures replace education and personal responsibility with "Big Brother" intrusion and control, and view them as failed policies that do nothing to prevent any other persons from becoming infected with HIV. Although traditional procedures may identify more infected people, no plan is offered in the new legislative proposals for helping those with HIV (many of whom have no access to health care, and little education, and many of whom are homeless) after they have been identified. A return to the traditionalist approach will cost money and its critics submit that those who advocate such an approach should concede that more money is needed. Ultimately, it seems that there is no guarantee that traditional epidemiology applied to HIV/AIDS would markedly bolster the success of public health efforts.[410] Moreover, in South Africa, there is the additional consideration that the institutions and mechanisms to enforce the appropriate controls and follow-ups that the traditional public health approach entail, does not exist or that money for that is not available.
8.19.10 Although, as indicated in paragraph 2.48 above, containment and prevention efforts could play an important role as part of an overall strategy for combatting HIV/AIDS, they have not been shown to be overly effective by themselves because of possible lack of understanding and education on the public's side.[411] This may permit HIV-related prejudices to flourish and may drive persons with HIV underground in an effort to avoid the discrimination associated with the disease. As a result, persons with HIV who do not receive adequate treatment and care may be more likely to infect others. Discrimination also perpetuates misinformation and stereotypes about how the disease is spread and the types of people who are affected. The resulting negative attitudes cause HIV/AIDS to remain a forbidden subject, and as a result, people are likely to remain uninformed about risky behaviour which they should avoid in order to remain uninfected.[412]
+ Integrate the HIV proposals in employment equity legislation currently being prepared by the Department of Labour
8.19.11 As indicated in the previous Chapter, it has been suggested by the Department of Labour that the Commission's legislative proposals be incorporated in the Employment Equity Bill.[413]
8.19.12 The purpose of the HIV Bill (proposed in Discussion Paper 72) is to expressly prohibit HIV testing and taking into account the HIV status or perceived HIV status of an applicant for employment in refusing him or her employment except where such testing or consideration is reasonably, justifiably and rationally warranted. The need for the proposed prohibition stems mainly from the present uncertainty as to the interpretation of the term "disability" in both the 1996 Constitution and the LRA. The Commission also wished to introduce some form of statutory intervention which would expressly prohibit what it sees as an ongoing and unfair labour practice.
8.19.13 The notion of employment equity within the workplace flows from an acceptance of the importance of the principle of substantive equality in creating a workplace which promotes equal opportunities and fair treatment, takes positive steps to redress the previous disadvantages of black people, women and people with disabilities and ensures that people of all groups are equitably represented at all levels of the workforce.[414] Employment equity therefore goes beyond simply ensuring that unfair discrimination does not occur in the workplace and examines the underlying causes of inequality by trying to identify and remove barriers which prevent certain groups from achieving their full potential. It further requires employers to take positive steps to redress past imbalances in order to achieve a workplace which reflects the diversity and nature of the community at large.
8.19.14 Generally speaking, the underlying purpose of the Employment Equity Bill seems to be wide enough for it to include provisions on HIV. The foreword to the Green Paper[415] preceding the Bill indicates that the Bill would intervene to do away with "all forms of discrimination". The preamble to the Bill states that "black people, women and people with disabilities are the most disadvantaged groups in our country" and that the Bill is therefore enacted "to eliminate unfair discrimination in employment". In a broad sense, moreover, the Employment Equity Bill seems to be compatible with the aim of the HIV Bill. The Employment Equity Bill contains general provisions against unfair discrimination in any employment policy or practice on the ground of disability and echoes the HIV Bill's qualification of such a right on the basis of the inherent requirements of a job.[416] However, the Employment Equity Bill focuses for the largest part mainly on the establishment of affirmative action plans aimed at equitable employee representation[417] in respect of women, black people, and people with disabilities in general. The term "people with disabilities" is defined in the Bill as "people who have a long term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment".[418] It is significant to note that no (other) single or specific "disability" is expressly referred to or provided for in the Employment Equity Bill.[419]
8.19.15 From the express formulation of the Employment Equity Bill it is evident that the purpose of the Bill is two-fold: firstly to promote equality through the elimination of unfair discrimination;[420] and secondly to promote positive measures to be taken to advance people from the "designated groups" [including people with disabilities].[421] The Employment Equity Bill deals expressly with elimination of unfair discrimination: the relevant provisions in general prohibit direct or indirect unfair discrimination in respect of any employment policy or practice, including recruitment procedures and selection criteria.[422] "Unfair discrimination" includes any distinction, exclusion or preference inter alia on the ground of "disability".[423] Distinctions, exclusions or preferences based on the inherent requirements of a job are not "unfair discrimination".[424] The Employment Equity Bill further deals with affirmative action, mainly in the context of the establishment, implementation, administrative monitoring and enforcement of affirmative action plans based on a statistical profile of an employer's workforce.[425] It also makes provision for procedures for dispute resolution with regard to exercising of rights by employees, and in regard to unfair discrimination in general.[426] Finally the Bill provides for the establishment of a Commission for Employment Equity, and the promulgation of codes of good practice and regulations.[427]
8.19.16 The Commission concedes that it is of paramount importance, as the Department of Labour has pointed out, that a legislative prohibition on HIV testing, being labour-related, be compatible with current and prospective labour legislation - whether it proves to be possible to include it in the Employment Equity Bill or not.
* Non-statutory proposals
+ Development of national guidelines for HIV testing
8.20 Some commentators felt that there was no need for a statutory intervention as national guidelines could be produced setting out appropriate standards and protocols on medical examinations or testing within the employment relationship. The Commission is of the opinion that such national guidelines would only be effective if they could be supported by a legislative enforcement mechanism. On their own national guidelines would be difficult to enforce and thus provide little protection for employees and job applicants. The Commission however would not be opposed to the development and proclamation of national guidelines to supplement the proposed legislative interventions and to provide clarity on issues such as, for instance, counselling and confidentiality.
+ More research and debate
8.21 Two commentators noted that further research ought to be undertaken on the implications of a statutory prohibition on pre-employment HIV testing. Following careful consideration of their comments the Commission has decided that further research was not necessary at this point as it would not significantly alter the principles accepted by the Commission. Furthermore, the flexible standard proposed by the Commission for authorisation of HIV testing would allow for the law to adapt to changes in our approach to dealing with the epidemic as our knowledge of it unfolded.[428] Finally, both the CCMA[429] (with respect to the HIV provisions as integrated in the Employment Equity Bill) and the Labour Court (with respect to the HIV Bill) will be able to call upon experts within the field to undertake further research for them as and when needed during the dispute resolution and adjudication process.[430]
8.22 Having evaluated the concerns and suggestions for alternative action to legislative intervention, the Commission remains of the opinion that statutory intervention is necessary to promote the public interest aim of maintaining otherwise healthy persons with HIV in productive employment, and to protect the rights of persons with HIV in the workplace. Such intervention, whatever form it may take, will however have to take into account the primary concerns of respondents regarding AIDS exceptionalism and costs and will have to fit the framework of existing and proposed labour legislation.
8.23 In the development of final recommendations regarding the formulation of statutory provisions for a prohibition on pre-employment HIV testing, the Commission was faced with two options:
Both these alternatives are set out and evaluated below.
8.24 In view of the fact that the final formulation of the Employment Equity Bill is subject to the parliamentary process, the Commission has at this stage accepted certain principles for legislative intervention regarding pre-employment HIV testing. These are also set out below. The Commission however does not at this stage make a final recommendation on any specific legislative option for realising these principles. The Commission endorses the principles accepted in a proposed Bill (attached as ANNEXURE B) and also offers comment on the latest available draft of the Employment Equity Bill (the 14th Draft) presented to Cabinet. The 14th Draft includes provisions regarding a prohibition on pre-employment HIV testing, the formulation of which has been developed by the Department of Labour in conjunction with the Commission's project committee. A final report on pre-employment HIV testing will be submitted by the Commission, should it prove to be necessary.
8.25 The Commission is convinced that its main aim in setting principles for a legislative prohibition on pre-employment HIV testing should be to balance the seemingly conflicting interests of the need for statutory intervention and the negative repercussions this may have in terms of AIDS exceptionalism and possible costs. This has led it to accept certain principles for statutory intervention. Whether they will be realised in the form of a separate statute or as part of existing or prospective labour legislation remains open for decision.
8.26 Principles the Commission recommends for legislative intervention are as follows:[431]
8.27 As indicated above, the main options for realising the principles recommended would be to enact a prohibition on HIV testing either as a separate entity or as part of existing or prospective labour legislation.
* A legislative prohibition on pre-employment HIV testing enacted as a separate statute
8.28 A prohibition on pre-employment HIV testing, enacted as a separate statute, would in essence consist of the HIV Bill as proposed in Discussion Paper 72, amended to accommodate specific concerns and suggestions of commentators (including that of the Department of Labour regarding the compatibility with existing or prospective labour legislation). These would in principle mainly relate to arguments of AIDS exceptionalism and costs. However, suggestions relating to technical matters and clarity of the law have also been accommodated in the draft Bill.
8.29 The HIV Bill as revised since publication of Discussion Paper 72, and in the light of comments received, is attached as ANNEXURE B.
8.30 The explanatory notes on the first draft for an HIV Bill as set out in paragraphs 6.9 to 6.17 above illuminate the terms also of the present Bill which has however been altered in the manner indicated in the text.
8.31 The reformulated draft Bill (attached as ANNEXURE B) reflects two significant modifications in the light of comments received. First, in consonance with the Department of Labour's approach in the Employment Equity Bill, and in response to pronounced resistence to "AIDS exceptionalism", the present Bill applies not only to HIV testing but to testing for "any medical condition". It is to be noted however that the mandate of the project committee that prepared the Commission's interim report is limited to research on an investigation concerning HIV/AIDS. The extension of the terms of the Bill to medical conditions generally is therefore not sourced on any specific research undertaken by the project committee. Second, to meet concerns raised by primarily the business community regarding a reflected desire for clarity on whether HIV testing was permissible in relation to the provision of employment benefits, the reformulated Bill includes this consideration as an acceptable basis for testing.
* A legislative prohibition on pre-employment HIV testing integrated in draft Employment Equity legislation
8.32 Several possibilities for integration of the two Bills have been discussed with the Department of Labour. These varied from inserting the Commission's Bill as a separate chapter in the Employment Equity Bill; expressly defining HIV as a disability; expressly defining pre-employment HIV testing as unfair discrimination unless the testing is fair and justifiable; promulgating a code of good conduct dealing either with HIV as an entity, or with medical examinations in the workplace in general, or with pre-employment HIV testing in particular. However, echoing the major concern of opponents to the Commission's preliminary recommendations, it has not been acceptable to the Department to include HIV provision alone in the employment equity legislation if this would result in an exclusive focus on HIV, as opposed to dealing with other medical conditions.
8.33 Accepting the Department of Labour's suggestion that the most viable way of integrating the HIV Bill into their legislative framework would be to include express reference to HIV under Chapter II of the Employment Equity Bill (which deals with unfair discrimination in relation to the workplace) specific proposals for such integration has been tentatively endorsed and have been included in the 14th Draft of the Bill. This Draft encompasses many of the principles for legislative intervention regarding HIV testing in the workplace accepted by the Commission. Of necessity a range of other provisions contained in the Employment Equity Bill also becomes relevant to the integration of the Bills. These include, for example, the possibility of developing codes of good practice with relation to HIV/AIDS in the workplace, and the availability of accessible enforcement mechanisms.
8.34 A copy of the 14th Draft of the Employment Equity Bill, embodying the integration of the Commission's proposals regarding pre-employment HIV testing, is attached as ANNEXURE C.
8.35 The Commission is satisfied that the 14th Draft of the Employment Equity Bill broadly embodies its principial recommendations regarding a prohibition on HIV testing in the workplace. The relative advantages and disadvantages of this proposal have been evaluated in discussion with the Department of Labour.
8.36 The Commission offers the following comments on matters bearing on the integration of its proposals into the Employment Equity Bill. Although these deal mostly with technical matters, some principles are also at stake.
* The Employment Equity proposals have the support of the Department of Labour
8.37 Any legislative proposals regarding the regulation of the employment contract have to have the firm support of the Department of Labour since this Department prepares and guides the legislative process through parliament, and will, once the proposals become law, be responsible for monitoring and enforcement.
* By including a prohibition on pre-employment HIV testing the Employment Equity Bill places HIV/AIDS issues firmly within the broad spectrum of employment equity
8.38 The Department of Labour expressed its firm support for the principle that employment equity be viewed broadly as including all forms of unfair discrimination in the workplace. This further deals with the views of many commentators who were opposed to AIDS exceptionalism.
* Pre-employment HIV testing is prohibited per se
8.39 A statutory prohibition on pre-employment HIV testing was the project committee's original intention with the HIV Bill. The Department of Labour's proposal thus appears to be the closest compromise that could be achieved which reflected the project committee's consensus that "the extent of the problem relating to pre-employment HIV testing is such that it warrants urgent investigation and should be addressed".[432] Many of the other proposals put forward for integration of the Bills would have outlawed unfair discrimination on the basis of HIV status but not HIV testing per se.
* Taking into account a job applicant or employee's perceived HIV status
8.40 The current formulation of the Employment Equity Bill does not cover the HIV Bill's protection against an employer using the job applicant or employee's perceived HIV status to discriminate. The project committee clearly felt that not only HIV testing but using a person's perceived HIV status ought to be covered by the HIV Bill. The current formulation will mean that the courts may have to further develop protections regarding discrimination on the basis of perceived HIV status.
* Flexibility is maintained in that an employer may still require an employee to undergo an HIV test provided this is justifiable in the circumstances
8.41 The proposed formulation is consistent with the HIV Bill's provision in clause 3 that an employer would be entitled to approach the Labour Court for authorisation to subject a job applicant or a category of applicants to pre-employment HIV testing. It is furthermore consistent with the formulation in option 2 in the HIV Bill which was favoured by most of the respondents on Discussion Paper 72 in that it provided the fairest means of accessing when the testing was in fact fair and justifiable.
* The prohibition in the Employment Equity Bill deals with both employees and job applicants
8.42 By integrating the HIV Bill into the Employment Equity Bill both job applicants and employees are provided with protection from unjustifiable testing.[433] This is a holistic approach which is in line with current legislation such as the LRA. Furthermore it ensures that the rights within the HIV Bill are extended to all employees including those already in employment. This deals with the concerns of many commentators that employees would not be protected by the HIV Bill.
* Not all employees are covered by the Employment Equity Bill
8.43 The South African National Defence Force, the South African Secret Service and the National Intelligence Agency are all expressly excluded from the ambit of the Employment Equity Bill. The HIV Bill had a much broader application in that it did not specifically exclude any employers. This formulation was based upon the project committee's original concern that the ambit of the prohibition should be broad, with employers approaching the Labour Court for authorisation to test in certain circumstances.
8.43.1 Although the Commission initially endeavoured to cover all employees in a prohibition on HIV testing, it is accepted that this would not be compatable with the broader framework of existing labour legislation. The LRA from its inception excluded the named agencies from its ambit. The whole scheme of legislation regulating fair employment practice thus from the outset excluded the named agencies.
* AIDS exceptionalism arguments are accommodated
8.44 Many of the respondents commentating on Discussion Paper 72 felt that the HIV Bill promoted AIDS exceptionalism in that it singled out HIV testing for special treatment. They argued that this approach of singling out HIV/AIDS for special treatment promoted discrimination and stigma against persons with HIV as it emphasised the difference between HIV and other diseases. By moving away from an HIV-specific Bill and integrating the proposals in the draft employment equity legislation these concerns are taken care of. The broader formulation of the prohibition on pre-employment HIV testing within the Employment Equity Bill focuses on testing for "any medical condition" thus placing HIV testing firmly within the broad category of a range of tests which may be required during an employment medical.[434]
* Testing for the purposes of entry into an employee benefit scheme is clearly dealt with
8.45 Many commentators, particularly those from the business sector, were concerned that the HIV Bill did not deal with the issue of employee benefits. Although they objected to any form of interference in the rules regarding access to employee benefit schemes they nevertheless submitted that the HIV Bill, in not dealing with the issue at all, would create uncertainty in the law.
8.45.1 The current proposal integrates the issue of testing for the purposes of access to employment and access to employment benefit schemes. It provides in clause 5(4) that testing may be "justifiable in the light of medical facts, employment conditions, social policy, and the fair distribution of employee benefits or the inherent requirements of a job". Therefore, testing as part of the application process for joining an employee benefit scheme may be lawful provided the employer can show that such testing is justifiable in the light of the fair distribution of employee benefits. This formulation provides the clarity that the business sector sought in that it sets out both the basic principle and the criteria which will be used by the courts to evaluate it. Furthermore it allows for flexibility and for development of the law regarding employee benefits. The current proposal also takes into account the concerns of many commentators regarding the cost implications of extending employee benefits equitably to all employees. This is achieved by including "the fair distribution of employee benefits" as a criterion that will be used in determining what is justifiable in the circumstances.[435]
* Fairness and justifiability
8.46 The formulation of the escape clause in clause 5(4)(b) of the Employment Equity Bill omits reference to fairness as a criterion for justifying testing for HIV.[436]
8.46.1 Although determining whether testing is justified will involve the fairness of the action, "fairness" in this formulation simply becomes one of several factors examined to ascertain whether the action is justifiable - whereas in the formulation in clause 3(3) of the HIV Bill both the criteria of justification and fairness must be met equally. The Commission would submit that the latter constitute a broader and stronger test. Including fairness as a criterion would furthermore be in accordance with other anti-discrimination provisions in the LRA and in the 1996 Constitution. Using this criterion would thus place (HIV)testing in the same context as other discriminatory acts. Including "fairness" would also reflect the original consensus reached in the project committee on the formulation of an escape clause. The consensus was specifically aimed at accommodating employer anxieties with regard to a prohibition of HIV testing.
* Authorisation for HIV testing not required in terms of the Employment Equity Bill
8.47 Whilst in terms of the HIV Bill employers are required to approach the Labour Court for authorisation for HIV testing, they may according to the Employment Equity Bill continue with HIV testing provided it is justifiable. An employee will thus have to take the initiative to register perceived unjustifiable testing for HIV with the CCMA.
* The Employment Equity Bill contains the HIV Bill's provisions regarding the broad powers of the Labour Court to place conditions on the nature and manner of HIV testing - however it is not applicable to HIV testing
8.48 The HIV Bill in its clause 3(5) provides the Labour Court with broad powers to grant authorisation on any terms it considered suitable including conditions relating to counselling, confidentiality, the period of the authorisation for testing and the category or categories of applicants to which the authorisation would apply. In terms of the current formulation this proposal is included as clause 46(5) of the Employment Equity Bill. This provision will however not in the present formulation be applicable to proceedings regarding HIV testing in view of the narrow definition of "employee" (excluding job applicants) in clause 59 the Employment Equity Bill (which is applicable to all provisions bar those in Chapter II). This is doubtless a technical oversight which can be remedied by an appropriate reformulation.
* The burden of proof regarding the establishment of HIV testing as justifiable is unclear
8.49 Chapter II of the Employment Equity Bill does not contain a clear provision on the burden of proof.
8.49.1 The HIV Bill, in clause 3(4) places the onus on the employer seeking authorisation to subject an applicant or a category of applicants to HIV testing. This is in accordance with the project committee's notion that the employer is best equipped to advance and establish why HIV status is relevant in that it remains the employer's responsibility to establish the reasons why undertaking tests to establish the HIV status of an applicant or an employee is justifiable in the circumstances.
8.50 Although, in terms of the formulation in the Employment Equity Bill, the employer will not have to apply for prior authorisation before testing, employees will - through the CCMA - be able to initiate unfair discrimination proceedings as soon as they are requested to undergo an HIV test. They will not have to wait until an employer discriminates against them on the basis of the test results since the Employment Equity Bill in clause 5(4) provides that testing an employee for "any medical condition" must be justifiable. An employee would thus be able to argue that the test requested is discriminatory in the circumstances. This will require trade unions, human rights organisations and the Department of Labour to place great emphasis on education programmes for employees so that they are empowered to initiate CCMA proceedings should they be faced with being discriminated against on the basis of their HIV status.
8.51 However, the drafter of the Employment Equity Bill suggested that the project committee's original proposal (presently contained in clause 3(4) of the HIV Bill as reflected in ANNEXURE B) can be incorporated at the end of Part B of Chapter V ("Legal Proceedings") of Draft 14 of the Employment Equity Bill.
* Enforcement mechanisms are available within the Employment Equity Bill
8.52 The Employment Equity Bill provides administrative dispute resolution mechanisms for any party claiming an infringement of Chapter II of the Bill.[437] In the first instance a grievant would be entitled to approach the CCMA for conciliation of the dispute and if this does not resolve the issue the parties may then either proceed to the Labour Court or to arbitration under the CCMA.[438] The CCMA is an independent dispute resolution body established in terms of section 112 of the LRA. Its primary functions are to resolve any dispute referred to it for conciliation; to arbitrate any unresolved dispute if the LRA requires it to do so; to assist in the establishment of workplace forums; and to compile and publish information on its activities.[439]
8.52.1 The process of applying for conciliation through the CCMA is both accessible and simple. The CCMA has offices in every province of the Republic who are able to assist employees and employers with the conciliation process. (For purposes of prohibiting testing for any medical condition in terms of clause 5(4) of the Employment Equity Bill "employee" includes and applicant for employment.[440]) In order to apply for conciliation an employee must apply to the CCMA in writing within 30 days if the dispute relates to a dismissal and within 12 months if the dispute relates to any other act or omission that allegedly constitutes unfair discrimination.[441] If the dispute remains unresolved after the conciliation process then either party may refer the matter to the Labour Court for adjudication or all the parties to the dispute may consent to arbitration by the CCMA.[442] If the parties to a dispute elect to go to arbitration under the auspices of the CCMA in terms of clause 6(6) of the Employment Equity Bill, such arbitration is final and binding[443] and can be made an order of the Labour Court.[444]
8.52.2 The LRA provides commissioners of the CCMA with a wide discretion to determine an appropriate process which will assist the parties in resolving the dispute. In the conciliation process they may use mediation techniques, embark on a fact finding mission or make a recommendation to the parties in the form of an advisory arbitration.[445] Commissioners may also call or subpoena any expert witness.[446] This could prove to be extremely useful as it would enable a commissioner to call upon experts in the HIV/AIDS field to assist the parties in resolving a dispute. This wide discretion provides commissioners both with the flexibility to find the most appropriate manner of resolving the dispute and can assist employees who are possibly not in a position to settle the dispute on their own. The CCMA provides further assistance by providing a wide range of advice services to the parties including advice on the process that will be followed in resolving a dispute,[447] and in arranging legal representation from the Legal Aid Board.[448]
8.52.3 The accessibility of the CCMA conciliation proceedings is further enhanced by section 135(4) of the LRA which states that a party to the dispute may appear in person or be represented by a co-employee, a fellow trade union member or office bearer of the party's trade union or employers' organisation, or if the party is a juristic person, by a director or employee. The exclusion of legal representation at this level appears to be designed to assist with equalising power imbalances between the parties and creating a climate conducive to settling the dispute through mediation.
8.52.4 Parties to a dispute which is being resolved by the CCMA have in certain circumstances a choice over the type of commissioner appointed to resolve their dispute. They may also in certain circumstances request the services of a senior commissioner to deal with the matter. This would enable the parties to request a commissioner experienced in HIV/AIDS matters so as to ensure that a fair and equitable settlement to the dispute is found.[449]
8.52.5 Finally the CCMA process is speedy: attempts must be made to ensure that every dispute referred to it for conciliation is resolved within 30 days of the referral unless the parties agree to extend this period.[450] If all parties to the dispute agree to refer it to arbitration under the auspices of the CCMA then the arbitration award must be made within 14 days of the date of the conclusion of the arbitration proceedings.[451] Thus the focus is on ensuring that disputes are speedily dealt with.
8.52.6 Any party alleging a defect in any arbitration proceedings may apply to the Labour Court for setting aside the arbitration award made.[452]
* Attempt to resolve a dispute before access to CCMA
8.53 The Commission is concerned that the requirement in clause 6(4)(b) of the Employment Equity Bill (which requires that the referring party has made a reasonable attempt to resolve the dispute)would place an unreasonable duty on employees to attempt to resolve a dispute regarding HIV testing on their own first before being able to approach the CCMA. In a situation where an employer requests an employee to undergo an HIV test and the employee refuses, the question arises as to what steps the CCMA would require the employee to have taken before he or she is entitled to apply for conciliation proceedings. It appears that the Employment Equity Bill is silent on this issue.
* Settlement of a dispute in terms of clause 47
8.54 Clause 47(4) of the Employment Equity Bill states that "(N)othing in this section precludes the parties to a dispute arising out of an alleged breach of a right conferred by this Part, from concluding an agreement to settle the dispute". The Commission is concerned that settling a dispute in terms of this clause may be detrimental to the job applicant in the instance where an applicant refuses to be tested for HIV and the matter is "settled" through the employer agreeing not to proceed with the test - but nevertheless also not taking such applicant into employment.
8.55 The drafter of the Employment Equity Bill however responded that the proposed provision is aimed purely at protection of employees from victimisation by employers for exercising their rights (and thus presumably not at unfair discrimination in general as dealt with in Chapter II of the Employment Equity Bill). In this context, according to the drafter, "discriminate" in the clause "(N)o person may discriminate against an employee[453] who exercises any right conferred by this Act"[454] would have a narrow meaning consistent with the LRA. Following this reasoning, clause 47(4) would thus not apply in relation to a dispute arising from the provisions of Chapter II. The Commission is however not convinced that this response adequately addresses the concern raised, and suggests that the formulation of clause 47(4) be revisited in order to reflect clearly the intended purpose of the provision.
* Definition of "employee"
8.56 Only in clauses 5(5) and 47(5) of the Employment Equity Bill is the definition of "employee" broadened so as to include job applicants. Other clauses of the Employment Equity Bill do not expressly extend to job applicants. Some of the disadvantages of this are that the powers of the Labour Court as set out in Part B of Chapter V of the Bill do not extend to job applicants.[455]
* Definition of "testing"
8.57 The definition of "testing" in clause 59 of the Employment Equity Bill refers explicitly only to testing for HIV. It is submitted that referring to "any medical condition" in clause 5(4) would not have the effect of prohibiting testing for any medical condition under the present narrow formulation of "testing". If the prohibition is to apply in respect of any medical condition, testing would have to be defined broadly. The purpose of the narrow definition of "testing", and the distinction made in this regard in clause 5(4) and the definition of "testing" are not clear.
* Broad employment equity legislation provides for the development of codes of good practice
8.58 The Employment Equity Bill confers authority on the Minister of Labour to issue codes of good practice after consultation with the Commission for Employment Equity.[456]
8.58.1 Such codes are intended to provide employers with information that may assist them in implementing the Employment Equity Bill.[457]
8.58.2 The possibility of the development of a code of good practice on HIV/AIDS in the workplace has several advantages, including the following:
8.58.3 Finally, the current formulation creates a distinction between testing for employment purposes and testing as part of an assessment for entry to employee benefit schemes. This approach is in line with the consensus reached within the project committee regarding legislative proposals on pre-employment testing.
8.59 The Commission recommends that any legislative intervention regarding pre-employment HIV testing be in accordance with the principles accepted in paragraph 8.26 above.
8.60 In the light of the possibility that the Commission's proposals may be integrated into the Employment Equity Bill, a final position is not adopted at this stage on any specific form in which such principles should be realised. The Commission is satisfied that the current formulation of the Employment Equity Bill, as embodied in the 14th Draft, broadly satisfies the needs of both proponents and opponents of a statutory prohibition on pre-employment HIV testing. In particular, the proposal accommodates the following:
8.61 After completion of this report and before the Commission finally adopted the report on 17 April 1998, the Department of Labour published the Employment Equity Bill under General Notice 1840 of 1997 in Government Gazette No 18481 of 1 December 1997. The Bill published in the Government Gazette corresponds with the 14th Draft of the Bill (attached as ANNEXURE C) and accommodates the recommendations in principle as set out in Chapter 8 of this report. However the published Bill contains the following relevant editorial changes: additional clauses were inserted between clause 37 and clause 38, and clause 52 and 53 respectively, with a resultant change in numbering of certain clauses referred to in Chapter 8. In addition, the definition of medical "testing" in clause 59 of the 14th Draft has been adapted (refer to clause 61 of the re-numbered and published Bill).
[379] See par 7.15-7.16 and 7.22-7.26 above for more detail.
[380] Cf par 7.61.
[381] The 1996 Constitution sec 9(4) and sec 39. See also par 5.5, 5.5.6, and 5.12 above.
[382] The 1996 Constitution sec 10.
[383] Ibid sec 12(2).
[384] Ibid sec 14.
[385] Ibid sec 23.
[386] Prinsloo v Van der Linde 1997 3 SA 1012 (CC) at 1026 [31].
[387] Cheadle and Davis 1997 SAJHR 55; Smidt 1996 JBL 153-154.
[388] The 1996 Constitution sec 9(4).
[389] See also par 5.5 above.
[390] The 1996 Constitution sec 9(3)and (4).
[391] Sec 5(2)(b) and 5(2)(c)(iv) of the LRA. Cf also clause 47 of the Employment Equity Bill.
[392] Sec 2(1)(a) of Part B of Schedule 7 of the LRA. See also par 5.6-5.10 above.
[393] "Explanatory Memorandum, Transitional Arrangement" Labour Relations Bill (Notice 97 of 1995 in GG 16259 of 10 February 1995). Cf also Mischke 1997 JBL 22-23.
[394] Sec 2(1)(a) of Part B of Schedule 7 of the LRA.
[395] Ibid sec 2(1)(b).
[396] Cf par 2.33 above. Cf also par 8.26 and 8.43.1 below.
[397] See par 2.32 above.
[398] Cf also Mischke 1997 JBL 22.
[399] See par 7.69 above.
[400] See principles for legislative intervention in par 8.26 below; clause 2 of the Prohibition of Testing of Employees for Any Medical Condition Bill (ANNEXURE B); and clause 5(4) of the 14th Draft of the Employment Equity Bill (ANNEXURE C).
[401] Eg the Americans with Disabilities Act, the Australian Disability Discrimination Act, the Dutch Wet op de Medische Keuringen, the Ontario Human Rights Code and the Canadian Human Rights Act - for more detail see par 5.18, 5.22, 7.40. 7.64 and fn 367 above.
[402] Cf par 7.28 above.
[403] Cf par 3.6 above.
[404] See par 2.35-2.50 above for the role of a prohibition on pre-employment HIV testing in the public health context.
[405] Cf also the comments referred to in par 4.6.1 above.
[406] Cf par 5.5-5.5.6 and 5.6-5.10 above.
[407] Cf however clause 47(3) of the Employment Equity Bill which provides that "(N)o person may advantage, or promise to advantage, an employee in exchange for that employee not exercising any right conferred by this Act or not participating in any proceedings in terms of this Act". Clause 47(5) states that for purposes of clause 47 "employee" includes an applicant for employment.
[408] See also par 2.35-2.50 above.
[409] Burr The Atlantic Monthly June 1997 65-67.
[410] Ibid 67.
[411] Grimm 1997 Human Rights Brief (Internet accessed on 31 October 1997).
[412] Ibid.
[413] See also par 7.58-.7.59 above. (Reference throughout is to the 14th Draft of the Employment Equity Bill.)
[414] Clause 1 of the 14th Draft of the Employment Equity Bill.
[415] Notice 804 of 1996 in GG No 17303 of 1 July 1996.
[416] Cf clause 5(2)(b). The HIV Bill may however be argued to go further in that it expressly requires that the qualification or exception only applies in cases where it is "fair and justifiable" and it further refers more clearly to inherent requirements of the particular job.
[417] Cf clause sec 16 and 17.
[418] Clause 59. Cf other definitions of disability: "A condition of being unable to perform a task or function because of a physical or mental impairment" (Collins Dictionary of the English Language Second Edition 1986). "A physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment" (Americans with Disabilities Act, 1990 (42 USC 12102 sec 3(2)).
[419] This has been the case before the integration of the HIV provisions in the latest drafts of the Employment Equity Bill.
[420] See Chapter II of the Bill.
[421] Chapter III. See also par 1.1.5-1.1.7 and 3.4.1 of the Green Paper referred to in par 8.19.14 and fn 415 above.
[422] Clause 5(1) and the definition of "employment policy and practice" in clause 59.
[423] Clause 5(1) and 5(2)(b).
[424] Clause 5(2)(b).
[425] Clauses 16, 10 and 12.
[426] Clauses 24 and 6.
[427] Clauses 25 and 49.
[428] See clause 3 of the HIV Bill (ANNEXURE B).
[429] Established in terms of sec 112 of the LRA.
[430] See sec 142(1)(c) of the LRA and clause 3 of the HIV Bill (ANNEXURE B).
[431] Cf for more detail also the explanatory notes on the Commission's proposed Bill in Discussion Paper 72 as set out in par 6.9-6.17 above; the suggestions and concerns expressed by commentators as set out in par 7.17-7.69 above; and the evaluation of comments in par 8.2-8.21 above.
[432] Minutes of project committee meeting of 6 and 11 March 1997.
[433] Clause 5(4) and (5) of the Employment Equity Bill.
Cf clause 5(4) of the Employment Equity Bill.
[435] Cf also par 8.46 below.
[436] Cf clause 3(3) of the HIV Bill and the explanatory notes with regard to the original Bill in par 6.16, as well as the principles referred to in par 8.26 above.
[437] Clause 6 of the Employment Equity Bill.
[438] Ibid clause 6(6).
[439] Section 115 and 135 (1) and (3) of the LRA.
[440] Clause 5(5) of the Employment Equity Bill.
[441] Ibid clause 6(2).
[442] Ibid clause 6(6).
[443] LRA, sec 143(1).
[444] Ibid sec 158(1)(c).
[445] Ibid sec 135(3).
[446] Ibid sec 142(1)(c).
[447] Ibid sec 148(1).
[448] Ibid sec 149(1)(a) and (b).
[449] Ibid sec 137.
[450] Ibid sec 135(2).
[451] Ibid sec 138(7).
[452] Ibid sec 145(1).
[453] For purposes of this clause "employee" includes an applicant for employment (clause 47(5)).
[454] Clause 47(1) of the Employment Equity Bill.
[455] See also par 8.48 above.
[456] Clause 49 of the Employment Equity Bill.
[457] Ibid clause 49(1)(a) fn 12.
[458] See also par 5.13 above.
[459] Clause 45 of the Employment Equity Bill.
[460] "Now the words 'and' and 'or' are sometimes inaccurately used; and there are many cases in which one of them has been held to be the equivalent of the other. Much depends on the context and the subject-matter" (Barlin v Licensing Court for the Cape 1924 AD 472). See also Binda v Binda 1993 2 SA 123 (W) where, referring to Barlin, it was held that the context and subject-matter of the provision should be examined against the background of the particular statute as a whole (at 126 C); and Zulu v van Rensburg 1996 4 1236 (LCC) at 1254.
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