Laws controlling the operation of technology taxis in Vietnam

Transportation services and traffic safety contribute to the successful implementation of the 4.0 industrial revolution in Vietnam. This also creates competition to promote the development of business units, which is the driving force for units to restructure the management and operation apparatus, increase the application of science and technology in the organization, management and operation of business activities. Create a working environment for workers to choose and participate in labor, Contribute to promoting socio-economic development for related fields and industries such as: information technology, automobile technology, motorbikes, ... Create convenience and reduce social costs for people.

Legal policies in recent years have partly encouraged models of applying information technology and sharing economy in the operations of businesses providing support services to connect transportation business activities under electronic contracts. However, it is not enough to determine the legal status and manage technology taxis when in practice there are still countless limitations and shortcomings of companies providing ride-hailing applications or the type of passenger transport business under electronic contracts is unfairly competing with passenger transport by traditional taxis.

In Vietnam, during the pilot period, the business of technology taxis is still being identified as a technology business model, not a transportation business. In Decision 24/QD-BGTVT, businesses providing ride-hailing services on digital platforms are identified as service providers applying science. If traditional car companies currently have their own ride-hailing sites such as Vic, Mai Linh, Vinasun... operating, it is just a form of their switchboard. But for technology taxi companies, there are two parts through their applications:

- Firstly, it is the close combination between information technology software and taxi business, it is a business cooperation, it is a business model.

- Second, technology taxi companies directly organize business and connect

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connected to individuals, not through a contract passenger transport service enterprise. Therefore, this business model is not exactly a taxi business service, nor is it exactly a contract passenger transport service, according to the current classification in Decree No. 86/2014/ND-CP. Decision 24 has not resolved the legal issue of whether Uber and Grab are transport enterprises or not.

Clause 1, Article 7 of Decree 86/2014/ND-CP stipulates on Contractual passenger transport business as follows: “1. Contractual passenger transport business is a non-fixed route transport business and is carried out according to a written transport contract between the transport business unit and the transport hirer”. Accordingly, it stipulates in detail the operating conditions, rights and obligations of the transport business unit, the driver, and the vehicle in compliance with the provisions of Decree 86, Circular 63; regulations for the unit providing science and technology services and other new points in the science and technology application transport business model stipulated in Decision 24.

* First: About business conditions

The legal status for transport business units to participate in the pilot must be enterprises and transport cooperatives. Technology taxis must register for car transport business according to the provisions of law (order, procedures, business lines, etc.). After having a full license for car transport business and a car transport business plan, the obligations of transport enterprises and cooperatives are to manage transport business, manage drivers for transport business, develop and apply service quality standards according to the passenger transport service quality standards issued by the Minister of Transport and store relevant records and documents in the process of managing and operating the unit's transport activities.

But beyond the traditional broker's authority, software providers are the managers and drivers, standardizing and operating transportation operations on behalf of cooperatives and transportation companies according to the regulations and standards set by these companies themselves.

All regulations on drivers or vehicles operating in the transport business in Decision 24 determine that the transport business unit (enterprises and cooperatives participating in the pilot) is also the unit directly providing transport services to customers and must take responsibility. Most drivers choose to join transport cooperatives because of the ease of procedures. As of 2017, the country had 738 transport cooperatives with 35,000 participants. The 2012 Law on Cooperatives was born with a series of mechanisms and policies to promote and develop the superiority of this type, but the results achieved were not high, the law has not been put into practice. Many cooperatives were established only for the purpose of intermediary services and selling transport badges. Some cooperatives currently mainly take care of procedures for members, providing transport badges, contract vehicle badges, route registration, etc. According to the author's research, cooperatives will "take care" of paperwork for members, in return, in addition to the mandatory fees according to regulations, members will have to pay additional fees to legalize paperwork. While all business activities of drivers are through ride-hailing applications, the connection between members and transport cooperatives is almost non-existent. The cooperatives themselves also admit that they are struggling to manage their members - according to Mr. Nguyen Xuan Tuan, Chairman of the Cooperative Union, a new organization established in June 2019 [28]. Improving traffic safety quality and signing labor contracts with workers at cooperatives according to regulations are still lax. Is it possible that cooperatives are just a front?

* Second: For drivers

Decree 86/2014/ND-CP provides full and detailed regulations for car drivers.

Transport business activities, according to Clause 1, Article 11 of the Decree, drivers are guaranteed social insurance and health insurance by transport business units; receive periodic health check-ups and professional training. However, these rights are not guaranteed in practice.

According to Decree No. 86/2014/ND-CP, drivers must undergo regular health check-ups and be issued certificates according to the regulations of the Ministry of Health. Working hours and rest hours for drivers are currently very difficult to control. Because according to Decision 24, this is the management task of transport enterprises and cooperatives, but in reality, Grab and Uber are the units that directly receive, operate the work and manage drivers through reward, punishment and evaluation systems. However, application providers deny workers' rights to drivers, shifting all management responsibilities to service providers; their only obligation is to declare a list of partners.

In particular, Decree 86/2014/ND-CP raises the issue of signing labor contracts between drivers and transport businesses. However, drivers of ride-hailing app providers such as Uber and Grab are not allowed to sign labor contracts but instead have civil service contracts.

In essence: “A labor contract is an agreement between an employee and an employer on paid work, working conditions, rights and obligations of each party in the contractual relationship” (Article 15 of the 2012 Labor Code). For a service contract, it is “an agreement between the parties whereby the service provider performs work for the service user, and the service user must pay for the service to the provider” (Article 513 of the 2015 Civil Code).

With a labor contract, the employee is paid and is subject to the management and direction of the employer regarding time, work, and salary according to the labor contract; the labor contract must be performed continuously.

continuously for a certain period of time. But for civil service contracts, the service provider is not subject to the "management" of the service hirer, the provider only needs to organize the work to achieve the results according to the service contract. The money the service provider receives is received according to the results of the work in accordance with the terms and purposes of the contract. Participation in a service contract does not need to be continuous, just need to complete the work, the interruption depends on the service.

In the relationship between software providers such as Uber and Grab and drivers, they claim that they are providers of ride-hailing software, not transportation companies; they are only intermediaries for drivers to use their cars, with the right to decide on time and work. But Uber and Grab are the ones who manage the booking, set fares, assign drivers to pick up passengers, collect money and decide on the discount percentage, and have the right to expel drivers from their applications. By only participating in civil service contracts without labor contracts, drivers do not participate in social insurance and health insurance, do not enjoy social benefits, and are outside the protection of labor laws.

There needs to be a change in the way of identifying and defining employees, employers of labor contracts, and the content of labor contracts in the new era. Ensuring that employees are still guaranteed their rights when participating in new-style labor relations.

* Third: For vehicles

Cars participating in the technology taxi model must comply with all legal requirements to ensure all regulations on traffic safety as well as technical safety such as: quantity, quality, and arrangement of seats in the car must be in accordance with the car design, the car must be equipped with escape tools, fire extinguishers, journey monitoring devices, etc.

Especially for vehicles participating in the pilot contract vehicle model

Electronic taxis must have a "contract vehicle" badge and registration number (according to the provisions of Article 44: Regulations for passenger transport vehicles under contract Circular No. 63/2014/TT-BGTVT. Accordingly, the name and phone number of the transport business unit must be on the front of the outside of both sides of the vehicle body or both sides of the vehicle door; have a "contract vehicle" badge according to the form in the circular. However, in reality, most technology taxis do not comply with this regulation.

As a result, it is impossible to identify vehicles operating in this type of business, and it is impossible to distinguish between private vehicles and vehicles operating in the transport business. The situation of private vehicles disguised as participating in ride-hailing applications causes difficulties in the management and organization of urban traffic; it does not ensure healthy and fair competition in transport activities.

In fact, there are still many cases where transport units do not comply with current legal regulations such as vehicles not having affixed contract vehicle badges, drivers or units that do not meet the requirements of the law still participating in the transport business... Vehicles participating in the pilot are not inspected, checked for periodic safety conditions, are not managed for regular maintenance and technical maintenance; drivers intentionally do not have affixed contract vehicle badges to circulate on prohibited routes, and park freely... However, all of the above violations are very difficult to detect and handle because it is difficult to distinguish between transport business vehicles and private vehicles. Violations by vehicles and drivers, if any, are not sanctioned by software providers such as Uber, Grab, they are not responsible.

Drivers and vehicles are the two most important criteria in the current transportation business, but they are not properly managed and cared for in the new transportation business model through digital platforms. Compared to the professional standards and training level of professional drivers, Uber and Grab drivers create a huge gap. Therefore, taxi companies

technology is banned in many countries such as Japan, Korea, Thailand... Especially in Germany, through court trials, Uber received a ban from the jury because it did not meet the conditions for business licenses and necessary practice certificates.

* Fourth: Contents of the transportation contract

The content of the electronic contract is specifically regulated in Decision No. 24/QD-BGTVT. To participate in the car booking application software, cooperatives, transport enterprises and customers (passengers) must accept the terms of the electronic contract on mobile devices. All terms and conditions of connection services, rights and responsibilities are set by the companies and units providing science and technology application services.

Electronic contracts between passengers and transport enterprises and cooperatives are a controversial issue. Because technology taxis are passenger transport activities under contracts. According to current Vietnamese law, technology taxis are considered a type of passenger transport business under contracts, traditional contracts are replaced by electronic contracts. However, the content of the electronic contract must meet the provisions of Article 7: passenger transport business under contracts of Decree No. 86/2014/ND-CP and Article 44: regulations for passenger transport cars under contracts, Article 45: organization and management of passenger transport activities under contracts in Circular No. 63/2014/TT-BGTVT. Accordingly, the content of the electronic contract must include the following basic contents: time of contract implementation; departure and destination addresses; The vehicle's itinerary for the outbound and return trips (clearly stating the departure point, route, pick-up and drop-off points in both directions, and the end point of the trip); number of passengers; contract value; customer benefits and passenger services on the trip.

But in reality, it is unclear whether the reason is due to the brevity, encryption in the electronic contract or due to evasion by the companies providing ride-hailing applications.

Like Uber, Grab, in the current electronic passenger transport contracts, there are only pick-up points, drop-off points, vehicle itinerary, and amount of money. Other issues such as the rights and obligations of the two parties, dispute resolution methods, and important passenger rights such as complaints and compensation for damages are not mentioned. From here, the question arises: who is responsible to consumers when an accident occurs to passengers?

Decision No. 24/QD-BGTVT is only a temporary legal document, responding to the spontaneous operation of the technology taxi model. Due to the weakness and shortcomings in finding the legal nature, definition and clear and precise regulations for the subjects participating in the digital economy and the relationship between these subjects, companies providing science and technology applications in the transportation business such as Uber and Grab show signs of violating the law of a series of other branches of law in the Vietnamese legal system such as competition law, tax law, etc., creating a big conflict between traditional taxi businesses and technology taxis.

- About fares

Joint Circular No. 152/2014/TTLT-BTC-BGTVT has very specific regulations on the stability and transparency of passenger transport fares. In Decision 24/QD-BGTVT, in Part V: Work content and responsibilities of units participating in the Grabcar pilot project, it is also stipulated that the application software provider must clearly specify the method of calculating fares, areas, and times when fares can be adjusted.

However, outside the regulation of the law and due to the lack of sanctions, fares can change hourly, daily. Just because of objective factors: weather, rush hour, holidays... fares can increase three or four times. This is completely passive for both customers and drivers (partners) for Uber and Grab.

Laws controlling the operation of technology taxis in Vietnam - 7

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