The publication of the Draft Code of Good Practice on key aspects of HIV/AIDS and employment (hereafter the ‘Code’) is an important step in combating the scourge of HIV/AIDS and the attendant discrimination suffered by people living with HIV/AIDS. COSATU concurs with the observation that HIV/AIDS "are serious public health problems which have socio-economic and human rights implications" (p.5). COSATU also shares the view that a holistic response is required which incorporates awareness, care support and prevention. Although HIV/AIDS knows no social, gender or racial boundaries, as recognised in the code, social status does aggravate the situation. Poverty, unemployment, lack of access to basic amenities such as water and health care compromise the health status of many South Africans and create conditions for HIV to thrive. The litmus test of strategies aimed at combating HIV/AIDS is the extent to which the rate of infection is reduced through public awareness, treatment is provided, and discrimination against people living with the diseases is eliminated.

The Code comes against the backdrop of the attempt by employers to amend the Employment Equity Act, Act No. 55 of 1998 (the ‘Act’) ostensibly to clarify grounds on which HIV testing can be conducted. COSATU is still unconvinced of the need to amend the Act. The purpose of the Act is to avoid abuse and testing based on arbitrary criteria. It is for this reason that a competent institution such as the Labour Court should provide guidance and develop proper jurisprudence regarding permissible and justifiable grounds for testing. Before the court has the opportunity to provide guidance in this respect, employers want to amend the section 7(2) of the Act. Section 7(2) read with section 6(1) bans HIV testing to prevent discrimination in the employment context.

The thrust of the Code is sound and will provide general guidance on interpretation of the Act as well as contribute towards combating HIV/AIDS in the work place. The objective of ensuring reduction and management of the impact of HIV/AIDS in the workplace is supported by COSATU. In terms of the Code this objective will be achieved through the implementation of an HIV/AIDS policy and programme. These programmes and policies should be developed in consultation with workers and unions, a fact recognised in the Code. COSATU further supports the goals of the Code which inter alia include elimination of unfair discrimination in the workplace based on HIV status, promoting a non-discriminatory working environment, and so forth (p.6). Having said this, we have fundamental concerns regarding the enforceability of the code, HIV testing and technical concerns regarding the definition of medical fitness and confidentiality. The bulk of this submission will focus on our concerns.

To be meaningful the Codes needs to be seen to be enforceable. In this context, we are concerned with the absence of reporting and inspection requirements in the Code to ensure compliance. There is no measure to evaluate the extent of compliance with the Code’s requirement to develop workplace HIV/AIDS policies and programmes including the number of obligations imposed on employers. The principal Act contain provisions to ensure compliance including reporting requirements and inspections. In our view, there is a need for explicit linkage in the Code to the Act’s enforcement mechanisms. For instance, the extent to which an employer has developed policies and programmes to deal with HIV/AIDS should form part of the report contemplated in section 21 of the Act. The second annual report from employers should state the steps they have taken to comply with the Act and the Code with respect to HIV/AIDS. Against this background, the Code should have a section on enforcement linked to the principal Act.

The section on HIV testing - section 6 of the Code - is generally sound, except section 6.1.3. Section 6.1.3 provide that "HIV testing, where permissible and where a court order has not specifically prescribed the conditions under which such testing may take place, should be carried out after obtaining voluntary, informed consent. It should further be accompanied by pre- and post-test counseling." The underlying logic is straightforward, to permit testing in the event that a court order has not prescribed the conditions under which it may take place subject to the proviso that it will be voluntary and pre and post counseling is provided.

In our view, this section goes beyond the provisions of the Act, and unintentionally introduces an amendment to the Act. In addition, it is likely to undermine section 7(2) of the Act, which prohibits testing unless the labour court has determined the grounds for testing. It pre-empts the outcome of labour court rulings and the purpose of requiring permission from the court prior to testing. The grounds under which testing is ‘permissible’ are not defined in the Code or in the Act. Unless clarity is provided on these questions, section 6.1.3 should be deleted from the Code.

Section 9.3 should be changed to ensure that information from benefit schemes is kept with the scheme and is not shared with the employer. At the moment, section 9.3 reads as follows "information from benefit schemes on the medical status of an employee should be kept confidential and should not be used by the employer or any other party. The words in italics suggest that an employer would have access to information from benefit schemes. In our view, there must be an obligation on schemes to respect the privacy of their members and they should be prohibited from disclosing information to third parties without the authorisation of the affected member in line with the Promotion of Access to Information Act.

The term medical fitness should be defined in the Code. Section 12.2.1 provides "that HIV infected employees should continue to work under normal conditions in their current employment for as long as they are medically fit to do so". To avoid arbitrary decision-making a clear definition of medical fitness is required. The evaluation of medical fitness should be done by a medical professional.

The Code of Good Practice on Key Aspects of HIV/AIDS and Employment is a welcome intervention to deal with discrimination and management of the impact of HIV/AIDS. COSATU supports the objective and goals of the Code, but has raised reservations with aspects of the Code. Principally our concern revolves around the enforceability of the Code and unintended amendment of the Act by contemplating the possibility of testing where is permissible or where the courts have not prescribed the grounds for testing. If these fundamental issues are addressed COSATU will give its unqualified support to the Code.