PFG Building Glass (Pty) Ltd v CEPPWAWU & others (2003) 24 ILJ 974 (LC)

Principle:

Section 7(2) of the Employment Equity Act 55 of 1998 states that 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 the Act. Anonymous and voluntary testing of employees for HIV does not fall within the ambit of s 7(2) of the EEA.

Facts:

The employer sought a declarator from the court that 'anonymous and voluntary testing of employees for HIV does not fall within the ambit of s 7(2) of the EEA.'

Extract from the judgment:

At 997A-C: ...if employees consent to HIV testing, it is not open to the Labour Court to interfere with such employee's exercise of control over their own bodies. It is inconceivable the circumstances under which the Labour Court may hold that HIV testing is unjustifiable once employees have given their informed consent. Therefore once employees consent to being tested for HIV there is no need for an application to the Labour Court to determine the justifiability thereof. Conversely, if employees refuse to consent to HIV testing or consent thereto without being fully informed, such testing would be automatically prohibited by s 7(2) read with s 12(2) of the Constitution. Then it is a matter for the Labour Court.