Legal Status of Digital Employment Contract in Serbia

IS THE ELECTRONIC FORM OF THE EMPLOYMENT CONTRACT VALID?

In many European countries, especially during the COVID-19 pandemic, electronic documents, especially in labor law, are becoming common practice. However, the Republic of Serbia continues to insist on the paper form of employment contracts.

The first relevant regulation in this area is the Law on Electronic Document, Electronic Identification and Trust Services in Electronic Business (“Official Gazette of RS”, No. 94/2017 and 52/2021) which stipulates that the validity of an electronic document cannot be challenged, probative force, as well as written form, only because it is in electronic form, and thus the said law equates electronic and “paper” document signed in his own hand.

On the other hand, the Labour Law (“Official Gazette of RS”, No. 24/2005, 61/2005, 54/2009, 32/2013, 75/2014, 13/2017 – US decision, 113/2017 and 95 / 2018, the “Law”) prescribes that it must be concluded in writing.

The Law stipulates the following conditions for concluding an employment contract:

• The employment contract is concluded by the employee and the employer.
• An employment contract is considered concluded when it is signed by the employee and the employer.
• The employment contract is concluded in at least three copies, one of which must be handed over to the employee, and two retained by the employer.
• The employment contract in the name and on behalf of the employer is concluded by the competent body of the employer, ie the person determined by law or the general act of the employer or the person authorized by them.

Having in mind the provisions of the Law and the opinion of the Ministry of Labour, Employment, Veterans and Social Affairs, which prescribes the mandatory written form of concluding an employment contract, we believe that an employment contract concluded in electronic form, i.e. if it is signed electronically, cannot be valid, i.e. it will not produce legal effects.

Therefore, if the employer and the employee conclude an employment contract in electronic form, they become exposed to numerous risks arising from the fact that it is not valid, and that an employment relationship cannot be established on the basis of such a contract.