SUMMARY OF RECOMMENDATIONS

1. The interim recommendations in this report are contained in Chapter 8.

2. The Commission accepted comments by the Department of Labour that any proposed legislation regarding a prohibition on pre-employment HIV testing will have to be compatible with the broader framework of existing and prospective labour legislation administered by the Department. The Commission also accepted a proposal by the Department to work towards integrating its proposals regarding pre-employment HIV testing into the Employment Equity Bill currently being prepared by the Department.

3. 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. 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.

3.1 In the light of comments received, the Commission reformulated the draft Bill published in Discussion Paper 72 to reflect two significant modifications. First, in accordance with the Department of Labour's approach in the Employment Equity Bill, and in response to pronounced resistence to "AIDS exceptionalism", the revised 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 a concern raised by primarily the business community regarding a reflected desire for clarity on whether HIV testing was permissible in relation to the provision of employee benefits, the revised Bill includes this consideration as an acceptable basis for HIV testing.

3.2 The Commission's comments on the 14th Draft of the Employment Equity Bill are contained in Chapter 8 of this interim report (paragraphs 8.35-8.58). 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.

4. The Commission recommends that any legislative intervention regarding pre-employment HIV testing be in accordance with certain principles. 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.

5. Principles the Commission recommends for legislative intervention are as follows:

To create certainty and clarity on the legality or otherwise of HIV testing as a specific form of discrimination in the employment relationship.
To prohibit testing where it constitutes unfair discrimination and an unfair labour practice.
To balance the rights of persons with HIV and those of employers.
To intervene statutorily so as to prohibit HIV testing per se, subject to permissible exceptions.
To deal legislatively with both job applicants and existing employees in order to enable the fair allocation of employee benefits.
Although the Commission initially aimed for a prohibition on pre-employment HIV testing to cover all employees, it was accepted that, given the framework of existing and prospective labour legislation, which excludes them, such legislative intervention could not apply easily to the South African National Defence Force, the South African Secret Service, and the National Intelligence Agency.
A prohibition on HIV testing in the workplace should not be absolute but should allow for exceptions to testing where testing is allowed under legislation and in certain circumstances where it is deemed to be fair and justifiable. Justification for testing should be based on medical facts, employment conditions, social policy, the fair distribution of employee benefits and the inherent requirements of the particular job. All of these factors should be considered jointly and severally in ascertaining whether testing is fair and justifiable.
An intervention should provide a flexible standard to allow for the law to develop in accordance with scientific knowledge, society's understanding of the epidemic, changing socio-economic circumstances, and the possible emergence of new rationales for HIV testing in the work place.
In determining whether or not HIV testing should be allowed, both justifiability and fairness need to be taken into account equally.
The burden to show that HIV testing under specific circumstances is fair, should rest upon the employer.
An impartial forum (such as is created by existing labour legislation) should be available to adjudicate whether HIV testing (or an application to authorise such testing) was fair and justifiable.
The Labour Court, in authorising testing for HIV, should be given wide powers which would include issuing instructions regarding the provision of counselling, the maintenance of confidentiality, and eliciting information or submissions regarding medical facts, employment conditions, social policy, the inherent requirements of the job and the fair allocation of employee benefits.
Judicial appeal procedures should be an integral part of a statutory prohibition.
Legislation prohibiting HIV testing in the workplace should be accessible and enforceable.
So as to integrate the main opposing argument regarding AIDS exceptionalism, statutory intervention need not be HIV/AIDS specific.

6. 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 14^th 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 14^th Draft has been adapted (refer to clause 61 of the re-numbered and published Bill).

7. A final report on pre-employment HIV testing will be submitted by the Commission, should it prove to be necessary.

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