According to the Labour Act, a number of employment-related decisions (e.g. decision on termination of employment, decision on overtime work, decision on suspension etc) must be personally served on the employee at the employer’s premises, or at the employee’s address by registered mail. In case personal service fails, the decision must be published on the employer’s notice board together with a note on failed service. It follows from the personal service requirement that such decisions must be issued in hard copy form. According to the Electronic Document Act*, a printed copy of an electronic document is deemed a copy and not the original and does not have the same evidentiary value as the original unless further conditions are met.
In contrast, the Labour Act explicitly provides that a decision on annual leave and a payslip can be served on the employee in electronic form. However, if the employee so requests, the employer must serve a decision on annual leave in written form. This juxtaposition of electronic and written form in the provision on the service of decision on annual leave is unfortunate because, according to the Electronic Document Act, electronic form satisfies the requirement of written form. We think that in this particular provision, which focuses on service of decision on annual leave, the reference to “written form” should be read as a reference to hardcopy, but that it was not the intention of the legislator to say that whenever the Labour Act refers to written form, that necessarily means hardcopy.
The Labour Act provides that the employment agreement is deemed executed when both the employer and the employee sign it. This does not necessarily have to be read as a requirement of hand-written signatures on a hard copy. According to the Electronic Document Act, a document in electronic form cannot be denied written form only because it is in electronic form, and a signature cannot be denied the validity or power of evidence only because it is in electronic form. That legislation also stipulates that qualified electronic signature has the same legal effect as wet signature, unless a statute prescribes that a particular legal act cannot be undertaken in electronic form. The Labour Act does not state that the employment agreement, or any other agreement between the employer and the employee, cannot be executed in electronic form. Arguably, therefore, any document that does not have to be served on the employee according to the rules on personal service, including the employment agreement, can be executed in electronic form and signed by qualified electronic signature(s). Admittedly, the provision of the Labour Act requiring that an employment agreement be concluded in at least three original copies, one of which must be handed over to the employee, does shed some doubt as to whether the employment agreement may indeed be entered into in electronic form. However, as long as the employee receives his/her electronic copy, there should be no issues.
The overall regulation of the form of employment-related documentation is unfortunately confusing and outdated, and it is to be hoped that the future amendments to the Labour Act will make a shift in favour of electronic form. Until then, the employers will have to continue to produce the bulk of employment-related documentation in the form that is business and environmentally unfriendly.
* Zakon o elektronskom dokumentu, elektronskoj identifikaciji i uslugama od poverenja u elektronskom poslovanju (“Sl. glasnik RS”, br. 94/2017 i 52/2021).