This is a notable right of employees specified at the Labor Code 2019 of Vietnam, effective from January 01, 2021.
Article table of contents
According to Clause 1 Article 3 of the Labor Code 2019 of Vietnam: “Employee means a person who works for an employer under an agreement, is paid, managed and supervised by the employer.”
According to Clause 1 Article 3 of the Labor Code 2012 of Vietnam: “Employee means a person who is full 15 years or older, has the ability to work, works under a labor contract, is paid with wage and is managed and controlled by an employer.”
It can be seen in the Labor Code 2019 that there has been a change in the definition of employees compared to the provisions in the Labor Code 2012. Consider the case that the probationer enters into a probationary contract but does not combine it with the employment contract:
- A probationer according to the Labor Code 2019 is also an employee, because he/she works for the employer under the agreement, is paid a salary and is under the management, administration and supervision of the employer regardless of the type of contract.
- However, according to the Labor Code 2012, a probationer is not considered an employee, although he/she is capable of working, is paid a salary and is under the management and administration of the employer, but does not work under an employment contract, so he/she is not considered an employee.
Besides, according to Clause 3 Article 168 of the Labor Code 2019 of Vietnam:
Where an employee is not covered by compulsory social insurance, compulsory health insurance or unemployment insurance, the employer shall, in addition to and at the same time with salary payment, pay the employee an amount equal to the compulsory social insurance, compulsory health insurance, unemployment insurance premiums payable by the employer in accordance with regulations of law on social insurance, health insurance and unemployment insurance.
Thus, from January 01, 2021, the probationer will be recognized as an employee and is not subject to compulsory social insurance, health insurance, unemployment insurance if working under the form of a probationary contract but not included in the employment contract.
Therefore, in addition to the agreed probationary salary, the employer is responsible for paying additionally at the same time as the salary period an amount equivalent to the employer's payment of compulsory social insurance, health insurance, unemployment insurance for employees.
These are new provisions compared to the Labor Code 2012 of Vietnam, because the definition of "employee" in the Labor Code 2012 does not include probationers, therefore, those who have been working before January 01, 2021 will not be paid any additional payment as prescribed.
Le Hai
- Key word:
- Labor Code 2019
