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23 Indus. L.J. (Juta) 670 (2002)
Judgement on Section 7(2) of the Employment Equity Act Creates Uncertainty regarding HIV Testing in the Workplace

handle is hein.journals/iljuta23 and id is 712 raw text is: Judgment on Section 7(2) of the Employment Equity Act Creates Uncertainty regarding HIV Testing in the Workplace MARK HEYwooJ* JENNIFFR JONI** On 22 January 2002, the Labour Court handed down its first com- prehensive judgment on HIV testing in the workplace.' The order was made following an application by Joy Mining Machinery for permis- sion to conduct voluntary HIV testing of 800 employees to determine the prevalence of HIV infection in the workplace, 'so as to be better able to deal with the pandemic'.2 While the judgment is welcome in that it gives substantive reasons for granting permission for HIV test- ing in the workplace, it raises serious concerns relating to the extent to which s 7(2) of the Employment Equity Act (EEA)3 prohibits such testing. In particular, it raises the question whether the prohibition extends to all forms of HIV testing, including voluntary testing and anonymous testing for the purposes of unlinked prevalence surveys.4 THE PROHIBITION ON HIV TESTING IN THE WORKPLACE The EEA is the First South African law expressly protecting the rights of people living with HIV/AIDS. In the context of labour * BA (Hous) (Oxtord): lead, AIDS Law Project, Ceutre Cbr Applied Legal Studies, University of the Witwatersrand. ** B Proc (Fort Hare) LLB (Wits): Attorney, AIDS Law Project, Centre for Applied Legal Studies, University of the Witwatersrand. We wish to thank Jonathan Berger a researcher of the AIDS Law Project for his valuable contributions and assistance with the final draft of this article. 1IJo' Xlinitig Machiiiri, A Diiisiou of Hariisctt fer (SA) (Pty) Ltd v Natiomal t 1tion of Metalwiorkers of SA & others (Joy Mieifg Machitery) (2002) 23 JLJ 391 (LC). The judgient saw Landman J authorizing mIV testing as well as attaching a number of conditions to its authorization. i t para 4. 3 Act 55 of 1998, 4 A standard HIV test (known as the ELISA test) usually in volves drawing blood or saliva and detects the presence of antibodies to HIV. The presence of antibodies indicates the presence of HIV infection. An HIV prevalcnc sircy involves the testing of a group of individuals to determine the percentage of those infected anxongst the group. Section 9 of the Constitution of the Republic of South Africa 1996, which prohibits untair discrimination, does not expressly mention HIV status. Nevertheless. when the Constitutional Court was called upon to adjudicate a challenge against unfair discrimination on the basis ofttIV status, a unanimous court held that untirly discriminaring against an enployee on the basis of his or her HIV status amounts to a violation of tleir right to dignity, being tantamxount to 'econoomic death' (mffiman- u, SA Airuays (Pty) Ltd 2001 (1) SA I (CC); (2000) 21 ILJ 2357 (CC)).

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