Probationary period shall not been used as bases for considering for salary increase

December 2012, Mrs. Thao signed a contract with the Forest Projects Management Board, with a probation period of 3 months, receiving 85% of the salary coefficient of 2.34. The Forest Projects Management Board stated that by March 2016, Mrs. Thao would be promoted to level 2 specialist, with a coefficient of 2.67. So, is the calculation of Mrs. Thao's salary raise period as stated conformable?

Lawyer Tran Van Toan, Khanh Hung Law Office- Hanoi Bar Association replies:

Since the information does not clarify whether Mrs. Thao was recruited as a public employee, signed a working contract, or as a worker who signed a labor contract with the public service provider. Therefore, the probation and trial period apply to each specific case as follows:

Case of being recruited as a public employee, signing a working contract in Vietnam

In the case of being recruited as a public employee and signing a working contract, the probation policies apply according to Article 27 of the Law on Public Employees 2010 (which comes into force in Vietnam from January 1, 2012); Articles 20, 21, and 22 of Decree 29/2012/ND-CP (which comes into force in Vietnam from June 1, 2012). The probation period corresponds to the appointed positions ranging from 3 months to 12 months and must be clearly stated in the working contract.

During the probation period, the intern receives 85% of the salary of the corresponding professional title with the position being recruited.

If the intern has a master's degree or doctorate and the field of study matches the position's requirements, the intern with a master's degree receives 85% of the level 2 salary, and the intern with a doctorate receives 85% of the level 3 salary of the corresponding professional title for the position.

The allowances are enjoyed as prescribed by law. The probation period is not counted towards the time for considering a salary raise.

According to the guidance in Article 10 of Circular 15/2012/TT-BNV dated December 15, 2012, from the Ministry of Home Affairs (which comes into force in Vietnam from February 15, 2013), the person who passed the public employee recruitment is exempted from the probation policy if the following conditions are met:

Had a working period with mandatory social insurance contributions in the required sector for at least 12 months or more, during which time the person performed tasks consistent with the professional requirements of the recruited job position.

If the recruited person had a working period with mandatory social insurance contributions but does not meet the above conditions, the probation policy must still be implemented.

However, as of December 2012, the regulation on exempting the probation policy when recruiting public employees stated in Circular 15/2012/TT-BNV was not yet effective, so units usually applied the probation exemption regulation for officials as stated in Article 12 of Circular 13/2010/TT-BNV dated December 30, 2010, from the Ministry of Home Affairs (Hanoi, Vietnam).

In the case where the recruited person had performed tasks consistent with the professional requirements of the recruited job position but did not meet the mandatory social insurance contribution time requirements, the probation policy must still be implemented.

The time the recruited person worked and paid social insurance in a job consistent with the professional requirements of the recruited position (if any, but less than the probation policy time) is counted toward the probation period.

If by December 2012, Mrs. Thao was recruited as a public employee, signed a working contract with the Forest Projects Management Board; and before being recruited, Mrs. Thao had worked for 10 months and paid social insurance with a level 1 salary coefficient of 2.34 at Dau Tieng Rubber Company (Lao Cai province) in a job consistent with the professional requirements of the recruited position, then those 10 months are counted towards the probation period.

For job positions requiring a university degree, the probation period is 12 months; thus, Mrs. Thao only needs to complete a remaining 2-month probation period. By March 1, 2013, Mrs. Thao finished the probation policy and received 100% of the level 1 salary, coefficient 2.34, pay scale A1 for public employees, Salary Table 3 issued together with Decree 204/2004/ND-CP. The time in grade for the next regular salary raise is counted from March 1, 2013.

Case of workers signing labor contracts with public service providers in Vietnam

In the case of working under a labor contract in public service providers, the probation policy does not apply as it does for officials and public employees; instead, the trial policies under the Labor Code apply.

As of December 2012, the 2012 Labor Code had not yet come into force, and the trial period was governed by Article 32 of the 1994 Labor Code; during the trial period, the worker must receive at least 70% of the job's rank salary.

The trial period must not exceed 60 days for high-tech professionals (jobs requiring professional titles from college level or higher).

If by December 2012, Mrs. Cao Phuong Thao had signed a labor contract with the Forest Projects Management Board, then she would be paid according to the public service providers’ administrative pay scale, and during the 2-month trial period, she would receive 85% of the level 1 salary coefficient of 2.34, which complies with regulations.

By March 1, 2013, Mrs. Thao finished the trial policy period, receiving 100% of the level 1 salary coefficient 2.34, pay scale A1 for public employees, Salary Table 3 issued together with Decree 204/2004/ND-CP. The time in grade for the next regular salary raise calculation, is counted from March 1, 2013.

Time eligible for being considered for a salary increase

Based on the regulations regarding the time in grade and standards for considering a regular salary raise as stated in point a, clause 1, and point b, clause 2, Article 2 of Circular 08/2013/TT-BNV dated July 31, 2013, by the Ministry of Home Affairs (Hanoi, Vietnam) on implementing regular and ahead-of-schedule salary raise policies for officials, public employees, and workers.

Should Mrs. Thao be positioned in a standard university-level job, earning 100% of the level 1 salary, coefficient 2.34, from March 1, 2013, then after 3 years (a full 36 months) from when she held her position, and given she was evaluated to have fulfilled her duties throughout her tenure, with no disciplinary actions such as reprimands, warnings, or demotions, then by March 1, 2016, Mrs. Thao would qualify for a raise to level 2, coefficient 2.67.

The Forest Projects Management Board's response regarding Mrs. Cao Phuong Thao's salary raise timeline of March 2016 is substantiated.

According to the Government Electronic Information Portal

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