AIDS LAW PROJECT SUBMISSION ON

HIV/AIDS WORKPLACE DISCRIMINATION

PORTFOLIO COMMITTEE ON LABOUR

PUBLIC HEARINGS ON WORKPLACE DISCRIMINATION

12 SEPTEMBER 2007

Drafted by Dan Pretorius

Contributor Fatima Hassan

INTRODUCTION

1 We would like to thank the Portfolio Committee on Labour for the opportunity to make this submission. Due to the time constraints in our preparation of this submission, we are available at the request of the committee at any time to supplement any part/s of this submission.

2 The AIDS Law Project (ALP) is formally associated with the School of Law of the University of the Witwatersrand, Johannesburg. The ALP was established in 1993 as a project of Wits University’s Centre for Applied Legal Studies, and is now a section 21 not-for-profit company and a registered law clinic. The focus of the ALP’s work is on the development, implementation and use of laws and policies to protect and advance the rights of people living with HIV/AIDS.

SUMMARY OF RECOMMENDATIONS

3 The following is a summary of our key recommendations, which are set out in greater detail below:

3.1 The penalties in cases where unfair discrimination is found to have occurred including in cases where an employer violates the injunction against conducting direct and indirect HIV testing at its request, should be strengthened.

3.2 HIV/AIDS workplace policies should become a legal requirement for all employers, and appropriate mechanisms should be introduced to monitor the adoption and implementation of such policies

3.3 Government departments represented at the National Economic Development and Labour Advisory Council (Nedlac) should commit themselves in the proposed joint 2007 Nedlac task team on HIV/AIDS, to funding and promoting programmes to eliminate HIV-related stigma and discrimination, in line with the National Strategic Plan (NSP) on HIV/AIDS 2007-2011

BACKGROUND

4 South Africa has a strong legislative framework aimed at preventing HIV-related discrimination in the workplace.

5 Guidelines developed by the International Labour Organisation (ILO) and the Code of Good Practice on HIV/AIDS, which is linked to the Employment Equity Act (EEA), provides useful information on the content of HIV workplace policies.

6 Many large employers have adopted workplace policies to mitigate the impact of the HIV epidemic on their business. Some of them have been at the forefront in providing HIV prevention, care and treatment services since 2002 at no cost to low income earning employees.

7 However, despite these positive developments, the AIDS Law Project continues to receive many complaints regarding unfair dismissals, unfair discrimination, and the mismanagement of HIV-related cases in the workplace, in small, medium and large enterprises.

7.1 In our experience, it appears that the implementation of HIV workplace policies is often patchy, with large companies adopting a policy at a national office level, and failing to ensure that information on the content of the policy (or even its existence) is disseminated at branch or department level.

7.2 While some companies offer free workplace prevention, care and treatment programmes, the historical fear of breaches of confidentiality and dismissal amongst employees has been a significant barrier to the up-take of these services within the workplace.

7.3 There is also a tendency among some companies and government departments to limit education and awareness activities to an annual World AIDS Day event and/or the distribution of pamphlets. This means that a significant opportunity for real education on HIV prevention, testing, treatment, and the reduction of stigma is being missed.

EXAMPLE

A government employee disclosed her status at her department’s World AIDS Day Event. Her supervisor and the rest of senior management were supportive towards her, but her colleagues refused to sit next her in the canteen anymore and would not touch anything (including pens) which she had handled. She also started receiving threatening phone calls in her office, telling her to “go and die at home because we don’t want you here.”

7.4 A survey of workplace policies conducted by the South African Business Council on HIV/AIDS (SABCOHA) in 2004 shows that while many large employers in the private sector have active HIV workplace policies, very few small and medium enterprises have adopted or implemented workplace policies at all. This is problematic as the majority of the unfair dismissal and discrimination cases, which the AIDS Law Project has dealt with in the past two years, involve small companies and individual employers (generally employers of domestic workers).

7.5 Many small employers do not appear to recognize the need for managing HIV in the workplace. Discrimination against employees living with HIV is often motivated by ignorance of HIV transmission and the perception that the employee is a threat.

7.6 In situations where employees are poorly paid, non-unionised, have low job security and minimal formal education, employers do flout the law leaving the employee without recourse and/or even access to the justice system.

7.7 For many employees in small workplaces, where about half earn less than R 2 500 per month, HIV-related stigma and discrimination is a reality. This prevents many employees from disclosing their status and/or accessing legal protections and prevention, care and treatment services that may be available.

EXAMPLES

A mechanic employed by a small company was dismissed for incapacity, despite the fact that he provided management with a doctor’s certificate stating that he had started ARV treatment and was fit to return to work.

A metalworker disclosed his HIV status to his supervisor and a co-worker, and he expected them to maintain his confidentiality. However, he soon discovered that everyone in the workplace knew his status. Information on his status then reached his neighbours and community, and community members and relatives started pressurising his girlfriend to leave him.

7.8 The proper implementation of HIV workplace policies can do a lot to decrease stigma, create an environment, which encourages disclosure, encourage testing, and assist employees to access proper medical treatment.

7.9 However, many companies and organisations have not voluntarily adopted and implemented HIV policies for a number of reasons relating to perceived costs lack of expertise or disinterest.

8 The legal framework

8.1 The legal framework, consisting of the EEA, the Labour Relations Act (LRA), the Basic Conditions of Employment Act, the Occupational Health and Safety Act (OHSA) and the Compensation for Occupational Injuries and Diseases Act (COIDA), provides employees with some protection.

8.2 However, the problem lies with implementation -- although there are some gaps in the legislation (enforceability of the Code of Good Practice and the legal position of casualised employees).

Access to legal services to enforce labour rights

8.3 Employees who are unfairly dismissed or subjected to discrimination and unfair labour practices face several barriers to accessing the legal system.

8.4 Firstly, the employees who are most vulnerable to discrimination are also those who are least likely to have ready access to information on their rights. For example, many domestic workers are unaware of the existence of the CCMA.

8.5 Secondly, trade union representatives are often ill equipped to deal with matters involving HIV-related discrimination, and the AIDS Law Project has dealt with a number of cases involving union members who were unable to obtain satisfactory assistance from their unions.

8.6 In addition to this, there are increasing numbers of non-unionised employees who are unable to access appropriate legal assistance if their cases are not resolved at the CCMA or Bargaining Council.

8.7 Some employers exploit this by refusing to cooperate with the CCMA conciliation process, and thus ensuring that the matter is referred to the Labour Court. Often the employee is unable to proceed without legal representation.

The impact of the casualisation of labour

8.8 Perhaps the biggest gap in the current legal framework involves the position of workers in workplaces, which are casualised, or workers employed through labour brokers.

8.9 Despite amendments to the labour law, many casual workers still fall outside the provisions of the law, and these categories of workers often do not have access to the health care and other benefits available in their places of work.

EXAMPLE

Wits University has an excellent HIV policy, which offers testing, counselling and treatment services to both staff and students. However, these benefits are not available to the cleaning staff, which has been outsourced.

Other more vulnerable sectors of workers include domestic workers, farm workers, and migrant workers from outside South Africa, who have low

levels of job security. They are traditionally difficult to organize and are least likely to challenge any aspect of their employment for fear of losing their job. For example, the Department of Health relies on “volunteer” lay counsellors for crucial aspects of the state’s HIV testing and treatment programme. Although they meet all the criteria developed by the Labour Court to determine when a person should be considered an employee, they continue to be treated as volunteers, receive a small monthly stipend instead of a salary, do not have access to any employee benefits, and are often hired and fired without any regard to due process.

Proposals to amend labour legislation

8.10 At present, it appears that there is some pressure to make amendments to our labour law framework to ‘encourage smaller employers to hire more workers’ by relaxing our disciplinary procedures.

8.11 These proposals include introducing a 6 to 12 month qualifying period during which the LRA will not apply; relaxing fair procedure protections for workers who are disciplined or dismissed; and deleting the provisions related to unfair labour practices.

8.12 If these proposed amendments become law, they are likely to have a disproportionately harsh effect on workers living with HIV. Such workers already suffer high levels of discrimination and have little effective access to legal protections due to ignorance of legal remedies or fear. Such amendments would make their position significantly worse.

EXAMPLE

A worker in a Cape Town beauty salon was subjected to insults about her HIV status from her employer. When the attempted to challenge this victimisation, she was threatened with dismissal for previous misconduct. After the AIDS Law Project intervened, it emerged that this “misconduct” included “having diarrhoea and stinking up the toilet”. This employee has recourse in terms of the current labour law provisions relating to unfair labour practices and unfair dismissals. If the amendments proposed by employers are effected, workers in this position would invariably lose their jobs, and would not be able to claim compensation.

8.13 On the other hand, proposals by workers’ organizations like COSATU to challenge the vulnerability of casualised or vulnerable workers by, for example, increased regulation of labour brokers, and increasing funding for bargaining councils to resolve disputes, will strengthen the position of vulnerable workers.

9 Indirect HIV testing

9.1 This section may be supplemented with a verbal input.

9.2 In the early 1990s, widespread mandatory and routine employment related HIV testing led to increased fear, ignorance and non-disclosure in the workplace.

9.3 In 1998 government sought to put an end to this practice by passing section 7 (2) of the EEA. The section makes it clear that HIV testing in the workplace for the purposes of appointment, promotion, transfer, etc and which is done at the request of the employer, is only permissible under certain circumstances. The section specifically makes it a legal requirement to approach the labour court for authorisation to conduct such testing.

9.4 Given this provision, and a literal interpretation of it by many employers, it has come to our attention that many job applicants are now required to provide several laboratory blood test results including a CD4 count and/or a viral load test.

9.5 Both CD4 counts and viral load tests are specifically used to indicate the clinical progression of HIV in patients living with HIV. There is simply no other medical reason why these tests would be required and are being performed knowingly by certain employers to establish a persons HIV status. Requesting and performing such tests is against the spirit of the EEA.

9.6 For this reason, we request that the committee specifically address in its recommendations to the legislative drafters, that the penalties for violating section 7(2) are strengthened.

10 Recommendations

Given the submissions above, the ALP proposes the following:

1. Government, which committed itself to a joint Nedlac task team on implementing the National Strategic Plan on HIV/AIDS 2007-2011 in workplaces, should specifically commit to combining resources and taking collective action to address the HIV epidemic through:

a. Education programmes on HIV prevention and testing

b. A universal roll-out of ARV treatment services, including PEP, PMTCT and chronic ARV treatment

c. Programmes to eliminate HIV-related stigma and discrimination

d. Programmes to mitigate the socio-economic impact of the HIV epidemic.

2. As outlined above, the adoption and proper implementation of HIV workplace policies is important for ensuring access to education, testing, medical treatment, and prevention of discrimination in the workplace. However, the current system of voluntary implementation and evaluation is having only limited success, particularly with regard to small and medium businesses. We therefore propose that HIV workplace policies should become a legal requirement, and appropriate mechanisms introduced to monitor the adoption and implementation of such policies.

a. This would require an amendment to the EEA, but the provisions for monitoring should be structured in such a way that they are not onerous or cumbersome for smaller businesses.

b. The amendment to the Act could simply provide that all employers should have a policy in place, based on the Code of Good Practice, but with flexibility to amend the guidelines, in consultation with employees, to be appropriate to the particular workplace in question.

c. There are several possible mechanisms for the monitoring of the provisions, and discussions between all stakeholders on the most appropriate mechanism are necessary.

The possibilities include:

· Requiring workplaces to report on the implementation of HIV/AIDS policies.

· Large corporations, para-statals and government department could make an HIV workplace programme a procurement requirement

· Monitoring through Bargaining Councils

· Monitoring by SANAC in terms of the proposed NEDLAC 2007 framework agreement

· Government could co-ordinate a database covering who has programmes, lessons learnt, data and numbers, but this would require some central co-ordinating authority.

· A combination of the above mechanisms.

3. Strengthening penalties in cases where employers are found to have violated the provisions of the EEA relating to unfair discrimination (s7) as well as violating the provisions related to HIV testing. In other words, where an employer is found to have conducted indirect HIV testing, it must be heavily penalised particularly because such practices go against the grain of the EEA.

4. The Legal Aid Board (LAB) has recognised the importance of extending its capacity to provide assistance for civil litigation matters including labour matters, but its efforts are being hampered by its funding situation. We call on the committee to ensure that increased funding is made available to the Legal Aid Board for labour matters that involve unfair discrimination, including acting in cases of farm and domestic workers.

5. We support COSATU’s proposals with regard to amendments to the labour law to provide increased protection of vulnerable categories of employees including employees living with HIV/AIDS.

Ends