On 22 January 2002. I made the following order in this matter:
IT IS ORDERED THAT: 1. the non-compliance with rule 7 of the Rules for the Conduct of Proceedings in the Labour Court be condoned;
2. applicant be authorised and permitted, in terms of section 7(2) of the Employment Equity Act 55 of 1998 ("the Act"), to perform the ELISA HIV test on the members of first and second respondents, whose names appear on pages 37 to 42 of the paginated papers (attached hereto as Annexure "A") and third and further respondents, whose names appear on pages 43 to 48 of the paginated papers (attached hereto as Annexure "B"), on the following conditions:
2.1 that the testing shall be voluntary;
2.2 that the test to be used is the ELISA saliva test;
2.3 that the tests are to be done on an anonymous basis, i.e. the employees participating in the survey will be asked to supply a saliva sample, as well as their age and job category. At no time will the participating employee be asked their name, nor will such information be recorded on the sample.
2.4 that the tests are to be conducted on 23 and 24 January and 1 February 2002 only;
2.5 that the employees have been advised that they may request a private test which will enable them to know their own HIV status but this will not form part of the survey nor will such testing be done by the applicant or on its behalf;
2.6 that the sample will be received and processed by an employee of the Aids Management & Support company. The applicant and its management will not be involved apart from participating in the survey as employees themselves.
2.7 that the applicant at no time intends to discriminate against HIV positive employees should it become aware of such status;
2.8 that the testing would at all times only be done with the consent of the employee and would not be requested as a condition of employment, promotion and/or any other benefits;
2.9 that the intention of the testing shall be to find out what percentage of employees at the applicant is HIV infected in order to assist the applicant to plan an effective HIV/AIDS prevention strategy.
2.11 that no prejudicial inference will be drawn from a refusal to submit to testing nor will the applicant be aware of which employees have undergone testing. The applicant will only be informed of the percentage of employees who have participated and the percentage of employees within the various age groups and job bands who have tested positive.
3. This order, together with a notice that every employee may decline to take the test without being subjected to any prejudice on that account, is to be placed at all entrances to the testing area and on all company notice boards.
4. This order is to be served on the first and second respondents.
5. This order is to be served on the employees listed on Annexure "B" hereto by e-mail. These are my reasons for making the order.
HIV (and AIDS) is a pandemic. The International Labour Organisation estimates that by 2020 the labour force in South Africa will be 17% smaller than it was in 2000. See the report prepared for the 88th ILO Conference. The report also mentions that AIDS-related illnesses and deaths of workers will affect employers by increasing costs and reducing revenues. Employers will be required to spend more on health care, burial, training and recruitment of replacement employees. There will be a reduction in revenues due to absenteeism related to illness, attendance at funerals, time spent on caring for the ill and training of replacements. The advent of HIV/Aids has brought with it a new manifestation of discrimination namely unfair discrimination on the grounds of the HIV/Aids status of a person including employees.
Joy Mining Machinery carries on business nationally as a manufacturer, supplier and service provider in respect of machinery to the mining industry. Joy Mining employs about 800 employees. Joy Mining, with the support of the representative union and most non-union employees, wishes to test its employees for HIV in order to determine the incidence of the disease amongst its staff so as to be better able to deal with the pandemic. It has applied for an order in terms of s 7(2) of the Employment Equity Act 55 of 1998 (EEA).
Section 7(2) of the EEA reads:
“Testing of an employee to determine that employee’s HIV status is prohibited unless such testing is determined to be justifiable by the Labour Court in terms of s 50(4) of this Act”
The powers which a court may exercise should it be satisfied that testing for HIV be permitted are set out in s 50(4) of the EEA. This section reads as follows:
“If the Labour Court declares that the medical testing of an employee as contemplated in section 7 is justifiable, the court may make any order that it considers appropriate in the circumstances, including imposing conditions relating to‑
(a) the provision of counselling;
(b) the maintenance of confidentiality;
(c) the period during which the authorisation for any testing applies; and
(d) the category or categories of jobs or employees in respect of which the authorisation for testing applies.”
Section 7(2) of the EEA is unhappily worded. It refers to the determination of justifiability in terms of s 50(4) but that section in turn sets out the powers of the court on the premise that the testing has been determined to be justifiable.
Employees who may not be tested for their HIV status are those employees who fall within the scope and ambit of the EEA (members of the National Defence Force, the National Intelligence Agency and the South African Secret Service are exclude). Joy Mining’s employees fall within the first category.
`HIV' is defined in s 1 of the EEA and means the Human Immunodeficiency Virus. The Merck Manual16th edition 77 defines:
HIV as “Infection caused by one of several related retro viruses that became incorporated into the host cell DNA and results in a wide range of clinical presentations varying from asymptomatic carrier states to severely debilitating and fatal disorders.”
AIDS as “Acquired immunodeficiency syndrome as a secondary immunodeficiency syndrome resulting from HIV infection and characterised by opportunistic infections, neurological dysfunction, and a variety of other syndromes.”
See also the Code of Good practice: Key aspects of HIV/AIDS and employment (the Code) published on 1 December 2000.
The glossary to the code provides some guidance on the what testing for HIV entails. It provides :
“Taking a medical test to determine a person’s HIV status. This may include written or verbal questions inquiring about previous HIV tests; questions related to the assessment of “risk behaviour” (for example questions regarding sexual practices, the number of sexual partners or sexual orientation); and any other indirect methods designed to ascertain an employee’s or job applicant’s HIV status”
Section 1 of the EEA defines “medical testing” as including any test, question, inquiry or other means designed to ascertain, or which has the effect of enabling the employer to ascertain, whether an employee has any medical condition. Medical testing itself is the subjection of the employee to one or more medical tests. These tests may take the form of X-rays, ultrasonography, audiometry, eye tests, lung function, ECG , tests for sensitisation and cytology. See chapter on Medical and Biological Monitoring in John Mathews Health and Safety at Work 2nd ed. The test for HIV, more properly a procedure, may be administered in various way. The procedure may be non-invasionary eg the employee providing the opportunity for a smear of saliva to be taken. Or it may be invasionary eg involve the drawing of blood. Usually a test will require the co-operation of the employee.
An employer who wishes to test its employees to determine their HIV status must apply to the Labour Court for permission. Ordinarily this requires the employer to serve a notice of motion and supporting affidavits on the affected employees and their union or representative. The court has a discretion to grant an order or issue a rule nisi calling on the respondents to show cause why an order should not be granted.
The court must determine whether the proposed testing for HIV status is justifiable. When is it justifiable to test an employee or employees to determine their HIV status? It worthwhile pausing a moment to consider what is meant by justifiable.
Justifiable has the following meaning: “2. Able to be legally or morally justified; able to be shown to be just, reasonable or correct; defensible.” Shorter Oxford English Dictionary. It would seem that whether something is justifiable must be tested against certain norms and values eg the standard of reasonableness, legality ie the applicable legal rules or moral standards etc.
In the context of the EEA “justifiablity” will be informed by the statute including the objects of the Act and guidelines for interpreting the Act. The purpose of the EEA is to achieve equity in the workplace by‑
(a) promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and
(b) implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels in the workforce. See s 3. The EEA must be interpreted ‑
(a) in compliance with the Constitution; (b) so as to give effect to its purpose; (c) taking into account any relevant code of good practice issued in terms of this Act or any other employment law; and (d) in compliance with the international law obligations of the Republic, in particular those contained in the International Labour Organisation Convention (111) concerning Discrimination in Respect of Employment and Occupation. See s 4.
Section 7(2) of the EEA does not provide any guidance about when it would be justifiable. But s 7(1)(b) which deals with medical testing generally sets out the factors which must be present or at least considered in deciding whether a medical test is justifiable. The test must be justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job. I am of the opinion that in deciding whether a HIV test is justifiable it is appropriate to also take into account the more general test for medical testing set out in s 7(b) of the EEA.
Section 54(1)(a) of the EEA permits the Minister of Labour to issue any code of good practice. A Code of Good practice: Key aspects of HIV/AIDS and employment was published on 1 Decmeber 2000. Clause 7 deals with HIV testing, confidentiality and disclosure. It reads: