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ANNEXURE B

RESPONDENTS TO DISCUSSION PAPER 73 IN ORDER OF RECEIPT OF SUBMISSIONS

REPUBLIC OF SOUTH AFRICA

PROHIBITION OF TESTING OF EMPLOYEES

FOR ANY MEDICAL CONDITION BILL, 1997

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(As introduced)

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(MINISTER FOR LABOUR)

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B I L L

To prohibit testing an employee for any medical condition, including HIV unless authorised by the Labour Court.

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:-

Definitions

1. In this Act, unless the context indicates otherwise -

"employee" means an employee as defined in the Labour Relations Act, 1995 (Act No. 66 of 1995), and includes an applicant for employment whether or not he or she is an existing employee.

"employment" includes the promotion, training, transfer, redeployment or re-assignment of an existing employee.

"employment benefits" include any advantage or benefit an employee derives or may derive from employment.

"HIV" means the Human Immunodeficiency Virus.

"test" includes any test, question, inquiry or other means designed to ascertain, or which has the effect of enabling the employer to ascertain, any medical condition, including the HIV status of an applicant for employment, and specifically includes an inquiry whether for the purpose of obtaining employment he or she is prepared to undergo HIV testing in any form.

"Labour Court" means the Labour Court, including the Labour Appeal Court, having jurisdiction under the Labour Relations Act, 1995 (Act No. 66 of 1995).

Prohibition of testing for any medical condition including HIV

2. Subject to section 3, no person shall -

(a) subject an employee to a test for any medical condition including HIV;

(b) take any medical condition including the HIV status or perceived HIV status of an employee into account in refusing him or her employment or to determine the fair distribution of employment benefits.

Authorisation for testing for any medical condition including HIV

3. (1) An employer or other person or entity offering or providing employment benefits may apply to the Labour Court for authorisation to subject an employee or a category of employees to testing for any medical condition including HIV and/or to take any medical condition including the HIV status of such an employee into account in deciding whether to refuse him or her employment or to determine the fair distribution of employment benefits.

(2) Before hearing the matter, or at any stage hereafter, the Labour Court may give directions as it considers fit regarding service of the application on specified bodies or individuals, including any who in its opinion may assist it by the provision of information or submissions regarding medical facts, employment conditions, social policy, the fair distribution of employment benefits and the inherent requirements of the particular job.

(3) The Labour Court shall grant authorisation if it is satisfied that consideration of any medical condition including the HIV status of an employee is, in the light of medical facts, employment conditions, social policy, the fair distribution of employment benefits and the inherent requirements of the particular job, fair and justifiable.

(4) The onus to satisfy the Labour Court lies on the employer seeking authorisation.

(5) The Labour Court may grant authorisation on such terms as it considers suitable, including conditions relating to -

(a) the provision of counselling;

(b) the maintenance of confidentiality;

(c) the period during which the authorisation applies;

(d) the category or categories of jobs or employees in respect of which the authorisation applies.

Interdicts

4. The Labour Court has jurisdiction, at the instance of any person who has standing under section 38 of the Constitution of the Republic of South Africa, 1996 (Act No.108 of 1996), to interdict any contravention or threatened contravention of this Act.

Appeal against authorisation by Labour Court

5. (1) Any party to any proceedings before the Labour Court in terms of this Act, may apply to the Labour Court for leave to appeal to the Labour Appeal Court against any authorisation by the Labour Court.

(2) In respect of an appeal in terms of this section, the relevant provisions of part E of Chapter VII of the Labour Relations Act, 1995 (Act No. 66 of 1995) apply, read with the changes required by the context.

Short title

6. This Act shall be called the Prohibition of Testing of Employees for any Medical Condition Act, 19...