Is Overtime Pay Permitted During the Probationary Period?

Article 28 of the Labor Code 2012 stipulates the probationary wage as follows:

The wage of an employee during the probationary period is mutually agreed upon by both parties but must be at least 85% of the wage for that job.

According to the above regulation, the wage during the probationary period will be mutually agreed upon by the employer and the employee, but it must be at least 85% of the wage for that job. During the probationary period, if the employee works overtime, the overtime wage will be calculated according to Clause 1, Article 97 of the Labor Code 2012, specifically:

“1. Employees who work overtime are paid wages calculated by the unit price or wages according to their current job as follows:

a) On regular days, at least 150%;

b) On weekly days off, at least 200%;

c) On public holidays, paid leave days, at least 300% not including the wage for the holiday, paid leave day for employees receiving daily wages.”

Clause 1, Article 25 of Decree 05/2015/ND-CP dated January 12, 2015, detailing the implementation of some provisions of the Labor Code, provides detailed regulations on overtime pay in Article 97 of the 2012 Labor Code, as follows:

1. Employees are paid overtime wages according to Clause 1, Article 97 of the Labor Code as such:

a) Employees who receive time-based wages are paid overtime when working beyond the regular working hours stipulated by the employer according to Article 104 of the Labor Code;

b) Employees who receive product-based wages are paid overtime when working beyond the regular working hours to produce additional quantities, volumes of products, or work beyond the standard quantities, volumes of products, or work as agreed upon with the employer.”

Thus, during the probationary period, employees who work overtime will have their overtime wages calculated based on the probationary wage that both parties have agreed upon in the labor contract. The company's action of calculating only 80% of the probationary wage and not paying overtime wages is against current legal regulations. Therefore, you have the right to submit a request to the company to fully pay your wages or file a lawsuit with the court to request protection of your legal rights and interests.

Master, Lawyer Pham Thanh BinhBao Ngoc Law Firm, Hanoi

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