16 May 2000, Pretoria
Chairperson
Commissioners of the Commission for Employment Equity
Members of the media
Ladies and gentlemen
I welcome you all to this media launch of the draft Code of Good Practice on Key Aspects of HIV/AIDS and Employment, which has been published for public comment.
The Department of Labour has recognised that the HIV/AIDS epidemic is one of the most serious public health problems facing our country. It is an epidemic which threatens not just the lives of individual workers and employers. It poses a significant threat to each and every workplace, the effective functioning of the labour market and the national economy as a whole.
The potential impact of the epidemic will be felt through the loss of productivity, increased cost of employee benefits, higher production costs and lower workplace morale due to prolonged staff illness, increased absenteeism and death. This will in turn impact on the macro-economy as it slows down economic growth as less economically active persons are able to contribute to the economy.
As we know, HIV knows no social, gender or racial boundaries, but it is accepted that socio-economic circumstances do influence disease patterns. HIV thrives in an environment of poverty, rapid urbanisation, violence and destabilisation. Transmission is exacerbated by disparities in resources and patterns of migration from rural to urban areas. Women, particularly, are vulnerable to infection in cultures and economic circumstances where they have little control over their lives. HIV/AIDS is also sadly surrounded by ignorance, prejudice, discrimination and stigma. In the workplace, unfair discrimination against people living with HIV and AIDS has been perpetuated through widespread practices such as pre-employment HIV testing, dismissals for being HIV positive and the denial of employee benefits.
We have recognised that HIV/AIDS poses a unique challenge to the social partners within the economy. This is a challenge which will require commitment to addressing the impact of HIV/AIDS, reducing poverty and also to implementing effective HIV/AIDS policies and programmes.
In order to meet this challenge, the Department has adopted the following broad goals:
In line with attaining these goals, the Department introduced certain provisions in the Employment Equity Act which prohibit unfair discrimination on the grounds of a person's HIV-status and prohibits HIV testing by employers without prior authorisation by the Labour Court.
To assist parties to understand and fulfill their obligations in terms of the Employment Equity Act as well as other employment laws in respect of HIV/AIDS, the Department of Labour, in consultation with the Department of Health and the Commission for Employment Equity, has developed the draft Code of Good Practice on Key Aspects of HIV/AIDS and Employment.
The Code's primary objective is to set out guidelines for employers and employees to implement so as to ensure individuals with HIV are not unfairly discriminated against in the workplace. This includes provisions on:
The Code's secondary objective is to provide guidelines for employers and employees on how to manage HIV/AIDS within the workplace. Since the HIV/AIDS epidemic impacts upon the workplace and individuals at a number of different levels, it requires a holistic response which takes all of these factors into account. The Code therefore includes guidelines on:
The Department intends to further assist employers, trade unions and employees by later this year publishing Technical Assistance Guidelines on Implementing an HIV/AIDS Policy and Programme in the Workplace. These Technical Assistance Guidelines will provide more detailed practical advice, assistance and information on how to implement the Code of Good Practice in accordance with the needs of every workplace.
Partnership
The Department of Labour is committed to developing a meaningful relationship with business and labour which aims at working towards the common goal of reducing the personal, social and economic cost of the HIV/AIDS epidemic. It therefore calls on all stakeholders to participate in the development of this draft Code through submitting written comments.
As part of this process, the Commission for Employment Equity will also be conducting public hearings on the Code in Johannesburg, Durban, Cape Town and Pietersburg on the 31st of May.
It is my intention to issue this Code jointly in terms of the Employment Equity Act and the Labour Relations Act. Thus a joint committee of the NEDLAC Labour Market Chamber and the Commission for Employment Equity will be considering all the public comments and then advising me as to the final contents of the Code.
HIV testing
Finally, I wish to address the issue of HIV testing. A number of questions have been raised, particularly by the business community, about the provisions in the Employment Equity Act that prohibit testing without prior authorisation by the Labour Court.
They argue that voluntary testing and counselling at employer-linked health care services should be allowed, particularly when it could benefit the employee. They argue for example that employees who are at risk of contracting tuberculosis should be tested for HIV so that these employees can receive treatment for TB.
My response to these concerns is as follows. A central thrust of the Employment Equity Act is to address unfair discrimination, which has denied the majority of our people access to job opportunities and advancement. One of the worst evils in the workplace is the high levels of discrimination against people with HIV/AIDS and their subsequent denial of employment opportunities and promotion if their HIV-status is established.
Testing for HIV will not prevent the spread of HIV/AIDS in the workplace. An employee may test negative on employment and become infected once in employment.
It is for this reason and after lengthy deliberations by a committee of the South African Law Commission and in Parliament that testing was allowed only with Labour Court authorisation.
The question I wish to ask is, why are employers not applying to the Labour Court if they believe that they have good reasons why they should test and that such testing would be to the benefit of the employee?
The Labour Court was established, not only as a mechanism of redress in individual disputes, but to provide jurisprudence, guidelines and authorisation after hearing expert evidence in relation to certain areas as specified in law.
Section 50 (4) of the Employment Equity Act says that the Labour Court can authorise medical testing in appropriate circumstances and impose conditions, including in relation to the category or categories of jobs or employees in respect of which the authorisation applies.
I wish to call on those who believe the law is not appropriate to use this mechanism that we created in the law before calling for amendments that can undo that which we seek to achieve.
I thank you.