HIV/AIDS and corporations: Meeting human rights and social responsibility APRM - Submission to Parliament Fatima Hassan 1 December 2005

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HIV/AIDS and corporations Meeting human rights
and social responsibilityAPRM - Submission to
Parliament Fatima Hassan 1 December 2005
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HIV/AIDS in South Africa

• About 5.2 million people living with HIV/AIDS in
  2005 (ASSA2003 Model) (5.8 by 2010)
  www.assa.org.za
• 530 000 new HIV infections mid 2004 to mid 2005
• 340 000 AIDS related deaths in same period
• Estimated 520 000 untreated
• Only about 80 000 in public sector and 70 000 in
  private sector (includes not for profit) with
  very few children (end October 2005)
• Massive challenge ahead, need to scale up fast
• Business has duty to respond effectively

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The early years

• Characterised by exclusion, unfair
  discrimination, mandatory testing
• SADC Code of Good Practice mid-1990s coupled with
  lobbying started to force change
• Challenges to corporate conduct included on
  disclosure, dismissal, testing, access to
  benefits (SAA, Old Mutual)
• Seeking protection through EEA (1998) and NEDLAC

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About turn bottom line or social responsibility
or both ?

• Legal, context, governments delay forced social
  responsibility into action
• Workplace policies premised on non-discrimination
  
• Testing phased out
• Better access to benefits (because of MSA)
• No public sector treatment programme until Nov.
  2003
• Medical Scheme coverage unaffordable
• SO Private unfunded sector forced to rely on
  business
• Announcement of treatment programmes before
  Operational Plan
• Few companies
• Costs
• Choice of drugs, generics, licences

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SABCOHA / BER 2005

• Mining, transport, financial services and
  manufacturing sectors have heaviest impact
• But compared to other sectors dealing with AIDS
  in integrated manner
• Anglo Platinum and De Beers now embarking upon
  external initiatives to support local communities
  (this is the exception)
• Seeing strong public/private partnerships in the
  provision of treatment to employees, spouses and
  their children
• BUT Building and construction, retail and
  wholesale sectors response has been poor
• Most companies unaware of the internal and
  external impact of HIV on their companies

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SABCOHA contd.

• Small and medium size enterprises slow in
  responding to the epidemic
• ESKOM, VW, and DaimlerChrysler - supply chain
  development programmes to unlock capacity for
  SMEs
• Large companies moving towards making an HIV
  workplace programme a procurement requirement
• Emphasis shifting from an internal focus, to a
  focus upon the community.
• Broader policy unclear
• Efficacy of SANAC
• Barriers to foreign funding for private sectors
  projects

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How does the private sector fare?

• 44 indicated that the private sectors response
  has been either lacking or completely inadequate
• 28 feel that the private sectors response has
  been satisfactory or more than adequate
• Large companies (with more than 500 employees)
  appear to be relatively more frustrated with the
  response to the epidemic
• 60 rated the private sectors response as
  lacking or completely inadequate

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The legal framework

• Constitution
• Equality, security of person, privacy
• Employment Equity Act (EEA)
• Prohibits non-voluntary HIV testing, outlaws
  unfair discrimination
• Labour Relations Act (LRA)
• Governs automatic unfair dismissals, access to
  benefits, reas. accom.
• Equality Act
• Prohibits unfair discrimination based on HIV/AIDS
  in Insurance
• services as prohibited practice
• Medical Schemes Act
• Prohibits unfair discrimination on basis of HIV
  status and risk rating,
• Now guarantees prevention and treatment benefits
  as a PMB

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Legal framework

• Occupational Health and Safety Act (OHSA)
• Duty on employers to minimise risk of HIV
  (equipment and other) and ensure safe working
  environment
• Compensation for Occupational Injuries and
  Diseases Act (COIDA)
• Governs compensation for infections during
  course/ scope of employment
• Basic Conditions of Employment Act (BCEA)
• Governs sick leave and other leave

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Employment Equity Act

• First piece of employment legislation that refers
  explicitly to HIV/AIDS
• Specifically prohibits unfair discrimination on
  the basis of HIV status- section 6(1)
• Prohibits testing of an employee or job applicant
  for HIV status - section 7(2) UNLESS Labour
  Court determines such testing justifiable -
  section 50(4)
• Anonymous and voluntary testing is allowed
• Compulsory testing must be approved by the Labour
  Court

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Code of Good Practice on HIV/AIDS and Employment

• Provides guidelines for employers, employees and
• trade unions on how to manage HIV/AIDS in the
  workplace
• Promotes the development of workplace HIV
  policies and programmes
• Emphasizes the need to base any programmes and
  policies
• on the principle on non-discrimination

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Meeting legal obligations and social
responsibility a scorecard

• Testing
• Still occurs though infrequently
• Confusion unnecessarily created around voluntary
  and compulsory
• Discrimination
• Still high levels of stigma and non-disclosure
  evident in low take up of medical treatment
• Still occurs through greater awareness
• Disclosure
• Still low in the workplace climate of trust for
  historical reason does not exist

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Meeting legal obligations and social
responsibility a scorecard

• Access to information
• About who has programmes, lessons learnt, data,
  numbers
• Central coordinating authority needed
• Requires coordination with government to address
  long term sustainability and compliance with
  norms and standards
• Working conditions that create vulnerability and
  susceptibility
• Hostels, migrant work, long distance travelling,
  sexual harassment
• Multinationals
• Pharmaceutical companies in particular
• Competing claims patent protection v patient
  protection
• PMA, patent defiance, forced voluntary licences
• Civil society forced lower prices and less patent
  protection
• Though still camouflaged as donations

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Scorecard

• Access to benefits
• Still complaints about access to housing ,
  pension and death benefits particularly mining
  companies
• Many employers still do not treat partners/
  dependants
• Migrant workers (cross border) often have no
  access
• High TB co-infection (due to poor working
  conditions)
• Private care unaffordable, inefficient, highly
  subsidised
• Abuses my medical schemes (many are corporate
  businesses)
• Waiting periods imposed
• Exclusions imposed
• Indirect cherry picking (cheap movie tickets but
  no hospital cover syndrome)
• Using MSAs to fund PMBs and limiting PMBs
  illegally

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Contact details

• AIDS LAW PROJECT
• hassanf_at_law.wits.ac.za
• 021 422 1490
• 083 27 999 62
• www.alp.org.za
• www.tac.org.za