Scope of application

• Pages: 11-12

Commentary

11

Employment agencies

Because the code of practice covers workers and applicants for employment alike,

both direct employers and employment agencies are subject to the principles laid down

therein. The processing of personal data by employment agencies of their own

employees, of potential workers whom they assist in seeking employment and of

temporary workers who are referred to other employers is covered.

The code, however, does not provide a definition of employment agencies, since

certain standards already exist and since private employment agencies, including

temporary work agencies, were the subject of discussion at the 1994 Session of the

International Labour Conference. The conclusions adopted by the Conference stated that

private employment agencies may be defined as private firms directly or indirectly

providing a service in the labour market, but did not go any further. Rather, they referred

to the types of agencies which exist.1 The Conference considered it useful for the ILO to

continue to build on the classification of employment agencies it had provided in its

report to the Conference,2 but this was not to preclude a more generic description of

such agencies when considering a revised standard.3

Informed and explicit consent

The issue of consent is of fundamental importance. Informed and explicit consent is

referred to in several provisions. The basic reason is to ensure that, when a worker is

asked to consent to the gathering or release of certain data, he or she has sufficient

information on which to make a decision. Explicit consent would normally mean written

consent. If there is no written consent, this must be justified. For example, there are

circumstances where written notice or consent would not be sufficient or appropriate,

since a worker might be illiterate or not understand a given language. In such cases,

information and consent may have to be given verbally.

4. Scope of application

The code applies to the processing of personal data whether by public or private

employers, by workers’ representatives or by employment agencies. Processing by other

agencies, such as social security, unemployment and health agencies, would be

governed by general data protection rules and by this code in relation to the agencies’

own workers.

1 ILO: “Sixth item on the agenda: The role of private employment agencies in the functioning of

labour markets”, Report of the Committee of Private Employment Agencies, in Provisional Record No.

21, International Labour Conference, 81st Session, Geneva, 1994, paras. 21-24.

2 ILO: The role of private employment agencies in the functioning of labour markets, Report VI,

International Labour Conference, 81st Session, Geneva, 1994.

3 The Governing Body decided at its 262nd Session (March-April 1995) to include the revision of

the Fee-Charging Employment Agencies Convention (Revised), 1949 (No. 96), on the agenda of the 1997

International Labour Conference. In addition, the Governing Body decided to hold a Maritime Session of

the Conference in October 1996. One of the items on the agenda was the revision of the Placing of

Seamen Convention, 1920 (No. 9), which resulted in the Recruitment and Placement of Seafarers

Convention, 1996 (No. 179).