A rights-based approach to addressing HIV/AIDS in the workplace: the role and contribution of the ILO and its constituents.

AuthorLisk, Franklyn

Abstract

The human rights implications of the global HIV/AIDS epidemic stem mainly from stigma and discrimination directed at persons living with the virus. Violations of human rights on the basis of real or perceived HIV status represent a particular problem in the workplace and poses a major challenge for the International Labour Organisation (ILO) and its tripartite constituents (i.e. government, employers' and workers' organizations). HIV-related discrimination at work not only violates basic workers' rights as enshrined in the ILO's 'Declaration on Fundamental Principles and Rights at Work' (1998), but deprives workers and their families of income and household productivity. ILO's response to managing HIV/AIDS in the workplace is, therefore, grounded on a rights-based approach which recognizes the urgent need for specific policies and programmes to promote its fundamental principles and protect rights at work. These principles are examined from two perspectives in the specific context of HIV-related discrimination at work: (1) fundamental human rights of the individual and (2) key requirements for economic and social development. The normative and legal framework for managing HIV/AIDS in the world of work is presented and analysed, making use of a wide range of illustrative examples drawn from international conventions, national labour and anti-discrimination laws, workplace agreements and jurisprudence and case laws from both developing and developed countries. Conclusions from the analysis reinforces the importance of a rights-based approach for creating an enabling environment to prevent discrimination and managing HIV in a humane and in a dignified manner in the workplace.

Keywords:

ILO, HIV/AIDS, workplace, discrimination, fundamental principles, workers' rights, rights-based approach, conventions, legislation, jurisprudence.

  1. Introduction

    A significant feature of the global HIV/AIDS epidemic is its concentration in the working age population and people in the prime of their productive life. It has been observed by the ILO (ILO) that about two-thirds of the estimated 40 million persons currently infected with HIV are workers in formal and informal employment (ILO/AIDS, 2004). The fact that the epidemic disproportionately affects those with critical social and economic roles has serious implications for economic growth and social progress, especially in highly affected countries and regions. This negative impact of HIV/AIDS on human and socio-economic development is further compounded by the another disturbing feature of the epidemic, the stigma and discrimination directed at persons living with HIV and AIDS which affect human capacity and dignity. In the workplace where the problem is particularly serious, discrimination on the basis of HIV status can lead to violations of basic workers' rights as well as affect the realisation of other fundamental human rights. The human rights implications of HIV/AIDS include the impact of the epidemic on vulnerable groups such as women, children and migrants, which can contribute to increasing gender inequalities and worsening problems of child and 'slave' labour. Rapid globalization and its impact on labour markets and working conditions has also increased the need to protect workers against AIDS-related and other human rights violations in the workplace (ILO/AIDS, 2006).

    This paper presents a rights-based approach to addressing HIV/AIDS-related human rights violations in the workplace, and reviews the application of legislative and legal measures and procedures based on relevant ILO instruments and labour and employment laws. It specifically discusses issues relating to discrimination in the workplace on the basis of real or perceived HIV status, and the role of the ILO and its tripartite constituents (governments, employers and workers) in taking action to address this problem through the promotion of fundamental principles and rights at work. These principles and rights are examined from two perspectives: as a fundamental human right and as important elements of economic development and social progress. The paper highlights the normative and legislative framework for establishing and defending basic principles for managing HIV/AIDS in the workplace, and provides examples from a range of sources on the application of ILO and other instruments through national legislation and jurisprudence relating to HIV/AIDS and through provisions in workplace collective agreements. The conclusions are that a rights-based approach creates an enabling environment for preventing and addressing HIV/AIDS-related human rights violations; that the ILO doctrine and practice of tripartism and social dialogue facilitate the development and application of right-based HIV/AIDS laws; and that a rights-based approach provides a workable framework for mitigating the socio-economic impact of the epidemic and for efficient and fair governance of the labour market.

  2. HIV/AIDS and the World of Work

    HIV/AIDS has a particularly devastating impact in the world of work. It affects labour productivity and cost, managerial efficiency, output, profit and investment in enterprises and businesses in all sectors (public, private, formal and informal), through AIDS-related absenteeism, sickness, early retirement and death of key workers. This in turn deprives workers and their families of income and household productivity which constitute a major source of sustainable livelihood and well-being. Overall, the labour and employment impact of HIV/AIDS can result in significant decline in national economic performance and pressure on social protection systems and general health services. In addition to the economic and social consequences of HIV/AIDS, a major concern of the ILO and its tripartite constituents is stigma and discrimination in the world of work on the basis of HIV status. Not only is discrimination inimical to the ILO doctrine of decent work and its fundamental principles and rights at work, but there is also evidence that discrimination undermines efforts to prevent the spread of the epidemic and mitigate its impact in the world of work (1).

    As an organisation that was founded to promote social justice and equity and to protect the rights and dignity of workers, the ILO recognises HIV/AIDS as a workplace issue and is committed to fighting the epidemic in the workplace through the promotion of non-discrimination in employment, gender equality, healthy working environment and the elimination of child and forced labour. The ILO's 1998 Declaration of Fundamental Principles and Rights at Work and its Follow-up (hereafter referred to as the ILO Declaration) (ILO, 1998) incorporates a number of core ILO Conventions and instruments about basic workers rights, and includes the principle of non-discrimination in respect of employment and occupation as one of the four fundamental principles.

    In accordance with the ILO Declaration, all ILO member states undertook, by virtue of their membership of the ILO, to respect, promote and achieve, in good faith and in conformity with the Constitution, four categories of principles and rights at work, even if they have not ratified the relevant Conventions, among which is the elimination of discrimination in respect to employment and occupation. While there is as yet no international labour Convention or Recommendation that specifically addresses the issue of HIV/AIDS in the workplace, the fundamental principle of nondiscrimination and other relevant ILO instruments pertaining to rights at work and occupational health provide the foundation for an HIV/AIDS workplace policy based on that common value.

  3. The Human Rights Implications of HIV/AIDS in the Workplace

    HIV/AIDS-related discrimination is a violation of basic human rights. The fundamental principle of non-discrimination and the equality of all people is enshrined in the 1948 Universal Declaration of Human Rights, and other human rights instruments, such as the International Covenant on Civil and Political Rights of 1966, the International Covenant of Economic, Social and Cultural Rights of 1966, and the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) of 1979. Discrimination based on race, colour, sex, language, religion, opinion, or other status is prohibited by these international legal instruments. The UN Commission on Human Rights deemed that the term 'other status', as used in several human rights instruments, 'must be interpreted as including health status, including HIV/AIDS', and that discrimination on a basis of presumed or known HIV-positive status is prohibited by current human rights standards.

    The principle of non-discrimination in the workplace is enshrined in both the Constitution of the ILO and the ILO Declaration, as are other core ILO instruments about basic workers rights which are relevant for managing HIV/AIDS in the world of work. The ILO Code of Practice on HIV/AIDS and the World of Work (ILO, 2001), (hereafter referred to as the ILO Code), which was adopted unanimously by all member States of the ILO in May 2001, sets out key principles, including nondiscrimination in employment and gender equality, as guidelines for policy and action to combat HIV/AIDS in the workplace. Through its technical cooperation programmes, ILO has sought to raise awareness about the economic and social impact of HIV/AIDS; strengthen the capacity of governments and their social partners in the world of work to respond effectively to HIV/AIDS in the workplace, including assistance with the framing of labour laws and policies; and disseminate examples of good HIV/AIDS workplace policies and programmes.

    Yet in countries all over the world, there are well-known documented cases of job applicants not recruited, workers being dismissed, denied promotion, excluded from social benefits and other entitlements; as well as workers being refused entry into foreign...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT