Probation is one of the mandatory regulations before an employee signs an official labor contract to work for the employer. Below are 06 points to note about the probation policies for employees in Vietnam from January 01, 2021.
Article table of contents
6 important points regarding probation policies for employees in Vietnam from January 01, 2021 (Illustration)
1. Employees may not have to undergo probation in Vietnam
According to Article 24 of the Labor Code 2019, probation is not applicable to employees entering into employment contracts with a term of less than 01 month.
Note: According to Article 20 of the Labor Code 2019, which regulates the types of employment contracts, from January 1, 2021, only 2 types of employment contracts are recognized:
- An indefinite-term employment contract is a contract in which the two parties do not determine the term and the time of termination of the contract;- A definite-term employment contract is a contract in which the two parties determine the term and the time of termination of the contract within a period not exceeding 36 months from the effective date of the contract.
The Labor Code 2019 allows employees entering into definite-term employment contracts of less than 01 month to be exempt from probation. For all other cases, probationary policies must be implemented.
2. Content of the probationary contract in Vietnam
According to Clause 2, Article 24 of the Labor Code 2019, the main content of the probationary contract includes:
- Probationary period;- Name and address of the employer and the full name and title of the person entering into the employment contract on the employer's side;- Full name, date of birth, gender, residence, ID card, citizen identification card, or passport number of the person entering into the employment contract on the employee's side;- Job and workplace;- Wages according to the job or title, method of wage payment, payment period, wage allowances, and other additional amounts;- Working hours and rest periods;- Labor safety equipment provided for the employee.
3. Duration of the probationary period in Vietnam
According to Article 25 of the Labor Code 2019, the probationary period agreed upon by both parties should be based on the nature and complexity of the job, but each job can only have one probationary period, ensuring the following conditions:
- No more than 180 days for the job of a business manager in accordance with the Law on Enterprises and the Law on Management and Use of State Capital Invested in Production and Business at Enterprises;- No more than 60 days for jobs requiring professional or technical qualifications from college or higher;- No more than 30 days for jobs requiring intermediate professional or technical qualifications, technical workers, and office staff;- No more than 06 working days for other jobs.
Compared with the provisions of Article 27 of the Labor Code 2012, from January 1, 2021, the duration particularly for the job of a business manager has been noted to be no more than 180 days. Other cases remain as per the current regulations.
4. No social insurance contributions during the probationary period in Vietnam
According to Article 25 of the Labor Code 2019, the probationary contract has a maximum term of no more than 180 days. If the probation is satisfactory, the employer must sign a employment contract with the employee. Therefore, the probationary contract is inherently not a employment contract.
Moreover, Article 2 of the Law on Social Insurance stipulates that mandatory social insurance participants include: persons working under indefinite-term employment contracts, definite-term employment contracts, persons working under a employment contract with a term from 01 month to under 03 months, etc., but does not include persons working under a probationary contract as subjects who must participate in mandatory social insurance.
In addition, according to Point i, Clause 2, Article 24 of the Labor Code 2019 regarding the content of the probationary contract, the content about social insurance, health insurance, and unemployment insurance is not a mandatory part of the probationary contract.
Therefore, in the case where a separate probationary contract (not a employment contract) is signed between the employee and the employer, the probationary period is not accounted for social insurance participation.
5. Probationary wages
According to Article 26 of the Labor Code 2019, an employee's wage during the probationary period is as agreed upon by both parties but must be at least 85% of the wage for that job.
6. End of the probationary period in Vietnam
According to Article 27 of the Labor Code 2019, at the end of the probationary period, the employer must inform the employee of the probation results.
If the probation is satisfactory, the employer shall continue to implement the signed employment contract if probation was agreed upon within the employment contract or must enter into a employment contract if a separate probationary contract was signed. If the probation is unsatisfactory, the signed employment contract or the probationary contract will be terminated.
Note: During the probationary period, either party has the right to cancel the probationary contract or the signed employment contract without prior notice and without compensation.
Above are 06 highlights about the probationary policies from January 1, 2021, that employees must know to protect their rights and interests.
Le Vy
