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Human Rights at Work

and the World of Work

by Lee Swepston ©

From immediately after my retirement in 2007 until the completion of the International Labour Conference in June 2010, I was asked to work on the preparatory materials for a new international instrument on this subject. The HIV and AIDS Recommendation (No. 200) was adopted by the ILO on 17 June 2010, the first international standard of any kind dedicated to this pandemic, which has terrible human rights implications. The text can be found at http://www.ilo.org/aids.

One reason I wanted so much to work on this new instrument was that some years ago when I was Chief of the ILO's Equality programme, I was responsible for the ILO's fledgling efforts on HIV/AIDS. When I drafted a few paragraphs on it to go into the programme and budget for the following year, the very conservative chief of the Director-General's Cabinet came to tell me that this had no place in the ILO's work, that it was a product of filth and sin, and that the World Health Organization across the street was the proper place for it. I could have the money for the work, but it was not to be mentioned anywhere in the budget. As a good civil servant I swallowed my indignation, took the money, and we did a few modest things to promote non-discrimination against those suffering from what was not (yet) a pandemic. Shortly afterwards, Mr. Somavia was elected as Director-General, and he created the ILOAIDS programme and transferred responsibility to it. For once I applauded the fact of losing responsibility for a subject I cared about — and promised myself that if ever I had the chance to do something on this I would.

The Governing Body of the ILO had accepted in 2007 to put the subject on the agenda of the Conference for standard setting in 2009 and 2010, and decided to make it a Recommendation. (See my comprehensive article on ILO standard-setting at http://www.ichrp.org/en/projects/120.)

The reason for the discussion was that the importance of the workplace as a vector for prevention, care, treatment and support had never been properly recognized, in spite of the ILO's successful 2001 Code of Practice (also available at http://www.ilo.org/aids) on HIV/AIDS and the Workplace. The workplace offers unique opportunities to reach those who are at risk or are infected, but national HIV/AIDS polices and programmes rarely include the workplace, and employers and trade unions are rarely included in the national response in spite of the immense potential contribution they can make. There is also the purely practical and highly brutal fact that in some parts of the world — in particular southern Africa where infection rates can reach over 40% of the entire population — employers find that their workforces are depleted as workers sicken and die.

And there is another reason to renew efforts as well: when the ILO Code of Practice was adopted 6 short years before the Governing Body decided to place this item on the Conference agenda, AIDS was nearly inevitably fatal. It was a certain death sentence for almost everyone. But in those few years, treatment developed to the point that if medication is available, and treatment regimes followed, HIV infection and even the development of AIDS are no longer a sentence of decline into illness, poverty and death - this disease has become manageable if people can get the medication. But you must know you are infected, you must have access to health care, and you must continue to have an income to be able to afford the medication. And where do these things become available for everyone? Nowhere else but at work. I worked with the ILOAIDS programme map out the procedure and the timing, and we drafted the Law and Practice report and questionnaire (Report IV(1), ILC 2009). A record number of replies from governments and from employers' and workers' organizations arrived, and we drafted the second report (IV(2)), containing a set of proposed conclusions for the first discussion in the Conference in 2009. (The reports for the 2009 Session of the Conference are available at http://www.ilo.org/aidsglobal/What_we_do/Officialmeetings/ilc/ILCSessions/98thSession/ReportssubmittedtotheConference/lang--en/index.htm.) As expected, many governments and employers were cautious in their replies about the ILO's role in fighting this pandemic. Many of them saw this as a broader social question on which the ILO should not work, and many employers in particular did not want to be saddled with costs to make up for failing government efforts as health systems in some countries collapsed under the weight of HIV/AIDS. From the Office's side, we agonized over whether certain subjects were unmentionable in an ILO discussion. Could we talk about sex workers and men who have sex with men? If we did, could we do so without assigning the "blame" for HIV infection entirely to behaviours of particular groups, knowing that most people these days are infected without themselves engaging in risky behaviour?

Could we speak of condoms in the sacred halls of the ILO?

In the end, in the proposed conclusions we decided to suggest that coverage should be as wide as possible, to include everyone connected with work, including all categories of workers as well as their families. Our feeling was that if we began naming target groups — with the exceptions of women and children, who are particularly vulnerable — we would not only be omitting by implication important parts of the working population, but would be assigning blame by implication when this was not the intention. And in the face of those who felt that mentioning sex workers and providing for attention to their special problems was somehow to legitimize this profession, we believed that specific mention of these workers would distract attention from the real message: everyone needs to be covered if the pandemic is to be fought successfully. The exception to the rule of not naming specific categories of workers was migrant workers, who have special problems related to testing and confidentiality — not to mention other human rights questions in many countries.

The first discussion of the proposed new instrument was in June 2009. The workers' spokesperson was Jan Sithole, a remarkable, soft-spoken trade unionist from Swaziland, the country with the highest HIV prevalence in the world. The employers selected as their spokesperson Patrick Obath from Kenya, whose with and flexibility were to enliven many a session, and who has a deep personal commitment to this subject. And the Chair was a dedicated government official from South Africa, Ms T. Nene-Shezi, who had never attended the ILO Conference, and certainly never chaired an ILO committee, but who quickly grasped the arcane nature of this unusual beast and tamed it.

The delegates surprised us by being willing from the beginning to go further and faster than their secretariat had dared to hope, or than their written replies had led us to believe. Condoms? Absolutely — and let us speak of both male and female condoms, and of instructions for their proper use. Do those with HIV and AIDS suffer from discrimination? Of course they do — including those who are merely perceived to be at risk, and suspected of being HIV positive, such as homosexuals, migrant workers and people of minority ethnic groups. As so often happens in the ILO, Governments and employers' and workers' organizations had sent to the Conference as delegates people who actually worked on the issues, including workplace physicians, medically trained labour inspectors, employers who had dealt with HIV/AIDS in their own businesses, and of course trade unionists who had to protect their members. Some delegations included HIV-positive people, who with great courage and dignity spoke to the Committee about what they themselves had encountered, and what was needed. These delegates helped the Conference move towards a real response, and not a political one.

There were some severe disagreements in the first discussion that rolled over into the second one. Some retained reservations about whether this was really an ILO issue, in spite of the conclusion adopted by the Committee that HIV/AIDS is indeed a workplace issue that has to be dealt with in the context of a national discussion.

There were three more severe problems. The first was whether the new instrument should provide for protection against discrimination equivalent to that provided in the ILO's major equality Convention (the Discrimination (Employment and Occupation) Convention, 1958 (No.111)), or equal to that protection? This was an argument among lawyers as to the meaning of words, and for this session of the Conference those favouring equivalent protection carried the day, though the phrase was put into "brackets" to indicate that the Conference wanted to return to it. The secretariat objected that this left too wide a margin of appreciation as to what was equivalent protection, but at this stage "equivalent" was used. The other two major issues revolved around compulsory testing and disclosure of HIV status. There is something of a conflict between the insistence of the national and international AIDS programmes that everyone absolutely should be tested and know their status, and the equally fervent conviction that this must be entirely voluntary and the results kept confidential. Unless testing is available to everyone, the mere fact of being tested reveals that you are concerned about your HIV status — and in smaller communities in particular getting tested cannot be kept secret. When people are known to be HIV-positive they are subjected to discrimination and suspicion — they often lose the jobs that are their connection to treatment and provide the money to keep their medication coming and to feed their families. In many situations a positive diagnosis can mean a death sentence if others know of it — and it is likely to become known. After some struggles, the Committee came to accept that no one should be obliged to be tested, though universal testing is the goal, and it adopted the general principle that the results of testing should be confidential.

Where the problem came was the strong feeling among some European Government representatives that people in certain professions, in particular medical staff, had an obligation to know and disclose their status, and that this should be a recognized exception to confidentiality. At the conclusion of discussions the first year, these governments asked the Office to come up with a solution for the second discussion that would reconcile the right to confidentiality with their perceived need to know the status of members of the medical professions.

The second question was whether migrants for employment should be obliged to be tested and whether immigration could be denied on the basis of HIV status. There is a not entirely unreasonable fear among governments that allowing HIV-positive people into their countries will spread the infection; and that if foreign workers fall ill they will be a burden on the national health systems of their countries of destination. Here again there was severely divided opinion at the conclusion of the first discussion at the end of June 2009, even though the Conference did adopt the position that migrants should enjoy the same rights to voluntary testing and non-disclosure as other workers.

Following the Conference the Office had to convert the conclusions into the form of an international instrument, and submit this draft to the constituents once again. The ILO staff has an unusually strong participation in the process compared to the practice in other international organizations, and actually is required to make proposals at this stage that in other international organizations are reserved to delegates. In this case, the Office proposed that equivalent protection against discrimination to that provided in Convention No. 111 was weaker than equal protection, and reverted to an earlier proposal that countries consider extending the same coverage as in C111 to HIV status. And it stated that after extensive consultation and examination of international human rights law, there was no solution that would allow any group or profession to be compelled to be tested or to reveal their HIV status. This included consultations with the Office of the High Commissioner for Human Rights, UNAIDS and WHO.

During the second discussion in 2010, these points continued to be points of harsh contention. The delegates improved the wording of the provision on anti-discrimination, adopting what is now Paragraph 9 of the Recommendation, and accepting that equal protection was the goal.

The Governments that had contended that medical professions had to be subject to compulsory testing and disclosure were very critical of the Office for not finding a solution to the disagreement, and for reinserting in the draft language that would make protection against compulsory testing and disclosure universal. It emerged from the difficult discussions that followed that in fact if the so-called "universal precautions" are applied there is insignificant danger of medical staff transmitting HIV to patients - indeed in the last 25 years there have been only 3 certified cases in which this has happened. Medical professions are in much more danger of contracting HIV from their patients than of transmitting it to them. There is also the telling point that after all, a test is reliable for only a few minutes — a negative test indicates only that at that precise time the patient is either free of HIV infection, or that if s/he is infected the "viral load" may not yet have climbed to the point of detection. The Conference accepted the principle of prohibiting compulsory testing and disclosure for everyone — though aware that in a number of countries people are still subject to compulsion, in either law or practice. The purpose of an international labour standard is after all to express best practice, not to consecrate usual practice, to induce countries to improve the situation.

This decision also covered migrant workers and their families, though it was obvious that there is still suspicion that migrants are more likely to carry HIV than nationals are. This is of course in part a manifestation of xenophobia and even racism: They are more likely to be HIV-positive than We are. One delegate stated that foreign domestic workers in particular had to be tested, or they would bring AIDS into households — the obvious response of "stop screwing the domestics" was not stated aloud.

I have focused on a few areas of discussion that required negotiation and resolution. For most other parts of the new Recommendation the discussion was how to meet real problems with practical solutions — a great example of how the ILO sets standards. It was agreed early on that HIV and AIDS is a problem that affects the workplace, and that business has a role to play. The Conference agreed quickly that there are severe human rights problems connected with this pandemic, including a disproportionate impact on women and children. It accepted quickly that the focus could not be only on workers themselves, but that their families had to be included in the national policies and programmes to be set up under the Recommendation, and in the enjoyment of many of the rights expressed in the standard, for instance in relation to social security and other insurance coverage. The expression of coverage was technically difficult — how to ensure that everyone we should cover was covered, extending even to interns and volunteers. The coverage extends explicitly to "armed forces and uniformed services", a first in ILO standards, taking account of the fact that in most countries these people are not considered to be workers and are not covered by measures aimed at the workplace, even though they suffer from very high rates of HIV infection in many countries.

Effect and follow-up

A Recommendation in ILO practice cannot be ratified — that is, its effect is what the name implies. A Recommendation contains standards adopted in a tripartite setting in the highest decision-making body of the ILO, and expresses a considered consensus as to what the practice should be. It becomes a target for national and international efforts, and it sets the terms under the ILO will advise and assist its constituents to do. It is not a Convention, and its provisions may not be made binding under international law, though of course a country is free to adopt it into internal law.

There is one international legal obligation attached to a Recommendation under article 19 of the ILO Constitution: a newly-adopted Recommendation must be submitted to the "competent national authorities" (usually the parliament), within 12 months (18 months for federal States), together with proposals for what to do about the Recommendation. This gives governments, and of course advocates within every country, an opportunity and a deadline to consider action. The 12-month period runs to 17 June 2011, and the 18-month period until 17 December 2011.

The Recommendation does call for follow-up measures. First, procedures should be established at the national level to monitor how the national policies and programmes called for in the Recommendation are being implemented, and these procedures should involve representatives of employers and of workers, as well as organizations of organizations of persons living with HIV. (See Paragraphs 50 and 51 of R200.) In addition, detailed information and statistical data should be collected and research should be undertaken on developments at the national and sectoral levels in relation to HIV and AIDS in the world of work. It is a regrettable fact that many governments do not have ways of collecting information on the national situation that would allow them to combat the pandemic effectively. This provision was backed up in the resolution adopted by the Conference at the same time as the Recommendation, paragraph 5 of which 'Invites member States to use existing mechanisms or to establish mechanisms at the national level to review progress, and monitor developments and share examples of good practice in relation to the implementation of the national policies and programmes on HIV and AIDS relevant to the world of work.'

One of the reasons cited for adopting a new standard in the first place was that there was no way to require reports to the ILO on the implementation of the Code of practice. If the new instrument had been a Convention, ratifying States would have had to report on it at regular intervals, but it was decided to adopt a Recommendation instead. The ILO Constitution allows under article 19 for reports to be required of member States on the measures they take to implement Recommendations, which are then considered in a 'General Survey'. The Governing Body may request such reports whenever it likes, but the intervals between reports requested on most Recommendations are very long. Indeed, the Governing Body never requests reports on most Recommendations.

The workers' representatives in the Conference placed great emphasis on this point, saying that they were committed to obtaining a strong follow-up. The Resolution adopted by the Conference therefore provides that the Conference: 6. Invites the Governing Body to request regular reports from member States under article 19 of the ILO Constitution as part of the existing reporting mechanisms, in particular General Surveys. Governments' reports relating to HIV and AIDS should be prepared in consultation with the most representative employers' and workers' organizations, including details of progress made and, where possible, examples of good practice.

The Recommendation has broken new ground in providing for HIV and AIDS to be dealt with as a workplace issue, and for highlighting the human rights consequences of the pandemic. It is comprehensive, forward-looking and clear. It is now up to advocates for people living with HIV to promote its application in all the countries affected.

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