ELECTRONIC LABOR CONTRACT AND RELATED LEGAL ISSUES

Nowadays, when technology is developing rapidly, transactions are established through electronic methods are not too strange. Accordingly, Labour Code 2019 has initially recognized the legal validity of an electronic labour contract, however, in reality, there are not many labour contracts concluded in this form. While there are some benefits of the electronic labour contract, it also has several problems.

Overview of electronic contracts

Pursuant to Articles 33 and Clause 10, 12, Article 4 of the Law on Electronic Transactions 2005, the electronic contract is a type of contract established in the form of a data message, which is created, sent, and received and stored electronically. Electronic method operating based on electrical, electronic, digital, magnetic, wireless transmission, optical, electromagnetic, or similar technology. Because the contract is established completely based on technology, it is superior to the contract signed by the traditional method by its ability to save time and costs but still ensure legal validity. Article 34 of Law on Electronic Transactions 2005 provides that the value of the electronic contract is "indisputable", which is equivalent to an ordinary contract, even though the establishment and conclusion are entirely through electronic means.

The Labour Code 2019 recognizes the conclusion of electronic labour contracts in the form of data messages

The parties in the labour relationship are entitled to enter into contracts through electronic method in the form of data messages from 1 January 2021. Article 14 of the Labor Code 2019 recognize the legal value of an electronic labour contract, accordingly, the establishment and conclusion of this contract are recognized by law and legal validity as the normally signed contract.

Electronic labour contracts create flexible conditions for the parties to enter into, solve the problems of time and geographical distance, and actively integrate with the modern digital technology platform. However, the labour contract is an agreement between an employee and an employer on paid jobs, wages, working conditions, rights, and obligations of each party in the labour relationship; therefore, the direct discussion between the parties will be more convenient in agreeing on the contents of the labour contract and many other related issues that cannot be met by the electronic labour contract.

Law governing electronic labour contracts

In principle, electronic labour contracts still remain the characteristics of a regular labour contract, so it is still governed by Labour Code 2019. However, because it is expressed in the form of data messages, in addition to the Labour Code 2019, the electronic labor contracts are also governed by the Law on E-transactions and other legal documents related to E-contracts and E-signatures.

How to enter into an electronic labour contract?

Instead of meeting face-to-face to agree and sign a labour contract manually, an electronic labour contract will be created in the form of data messages, entered into by electronic means, and signed by electronic signatures.

Conditions for legal electronic labour contract

Electronic labour contracts will not automatically be recognized in all cases. To electronic labour contract to be legally valid, it must meet the conditions specified in Article 13 of Law on Electronic Transactions 2005 (i) the employer and employee must ensure that the contents of the contract are constant from the time it is created until the two parties signed into and (ii) the electronic contract must be completely accessible and usable by the parties in its complete form. This regulation means to protect the parties from risks in the process of electronic transactions but also poses problems for the parties about the tools to ensure the legal validity of the contract.

Currently, having some methods are used to ensure the integrity of the content of the labour contract, among which the most common and convenient is digital signatures. A digital signature is a form of electronic signature created by transforming a data message using an asymmetric cryptographic system. For a digital signature to be legally valid, it is necessary to meet the conditions specified in Article 9 of Decree 130/2018/ND-CP dated 27 September 2018, specifically:

(i) The digital signatures are created during the valid period of digital certificates and inspected by the public key recorded on such valid digital certificates;

(ii) The digital signatures are created by using the private key corresponding to the public key recorded on digital certificates granted by one of the following authorities:

• Root Certification Authority;

• Specialized certification authorities of the Government;

• Public certification authorities; and

• Specialized certification authorities of agencies and organizations issued with certificates of eligibility for special-use digital signature security as prescribed in Article 40 of Decree 130/2018/ND-CP dated 27 September 2018.

(iii) The private Key is only under the control of the signer at the time of signing.

Practical assessment of the use of electronic labor contracts

Since the regulation on electronic labour contracts in Labour Code 2019 has only taken effect from 1, January 2021, there have not been many electronic labour contracts implemented. In fact, employees still prefer to sign a written labour contract, although the electronic labour contract has the same legal validity as the written labour contract. Some reasons given to explain this situation are: (i) The digital signature registration procedure takes a lot of time and cost; (ii) The number of employees using digital signatures and e-contracts is not widely; (iii) The majority of workers are still not enable to access to electronic contracts; (iv) The practical applicability of digital signatures is low because many individuals still have difficulties in using personal computers and performing digital signature manipulation; and (v) E-contracts still have more legal, technological and security risks than traditional labour contracts.

Using electronic labour contracts is a new progress in the Labour Code 2019. Due to the complicated situation of the epidemic, individuals must practice social distancing. The trend of signing the electronic labour contracts may increase. This will be an opportunity for electronic labor contracts to initially reach more people, especially employees. However, in order to the electronic labour contract to be more popular and applicable, the parties of the labour contract need to change their transaction habits and familiarize themselves with register and use digital signatures as well as need to understand the relevant regulations of the electronic labour contract.

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