Collection of personal data

• Pages: 15-19

Commentary

15

Box 2

ILO Convention No. 111

Measures for the protection of workers’ privacy play a part in the application of the

principle of equality of opportunity and treatment in employment under the

Discrimination (Employment and Occupation) Convention, 1958 (No. 111). The

Committee of Experts on the Application of Conventions and Recommendations

discussed the issue in its General Survey on Convention No. 111 (and Recommendation

No. 111), in relation to protection against discrimination in access to occupation and

employment and in terms and conditions of employment. Examples cited in the survey

involve the abusive use of data in personnel files, various tests and inquiries into a

worker’s beliefs or opinions.

(5.11, 5.12) Also as a general principle, employers, workers and workers’

representatives, if any, should cooperate in ensuring that personal data are protected and

in developing privacy policies consistent with the code. In addition, all parties should

respect the confidentiality of personal data.

(5.13) In view of the dependence of workers on their employment and the

fundamental nature of privacy rights, the code states that workers may not waive their

privacy rights. It is, nevertheless, recognized that privacy rights are not absolute and are

balanced with competing public interests according to national law.

6. Collection of personal data

(6.1) A large part of the code is devoted to the collection of workers’ personal data.

The leading principle reflects an approach common to most data protection laws:

workers must be the primary source of all information concerning their person. Only if

they are the primary source can they know which data are to be processed, consider the

implications, and decide whether the information should be provided.

(6.2, 6.3, 6.4) The duty to obtain personal data directly from workers does not, of

course, preclude indirect ways of getting information, for example by consulting former

employers. However, employers must inform workers of the purposes of the processing,

the sources used and the information sought and ask for their explicit consent. To further

allow workers to make an informed decision about whether to consent, the

consequences, if any, of refusing to consent must be given. For example, the lack of

personal data requested could lead to the denial of a claim for benefits. If third parties or

organizations are entrusted with collecting information, the employer must make sure

that all inquiries are conducted strictly in accordance with the conditions agreed upon

with the workers. Both the personal data required and the purposes for which they are

needed must, therefore, be clearly indicated to the third parties.

(6.5-6.9) Important though the participation of workers is, its impact on the

information process should not be overestimated. The dependence of workers on the

workplace will as a rule induce them to comply with the employer’s wishes and reduce