Tiếng Việt
中文 (中国)
In Vietnam, before officially working in a company, the employer usually has a probationary period to assess the employee’s abilities. However, for employees, this time is not meaningless as it is also the time to check if they fit in with the company’s culture and can work for a long time alongside the company’s employer and other current employees. Accordingly, it’s safe to say that the probationary regime benefits both parties. So, what are the regulations on the probationary regime for employees in Vietnam?
According to Clause 1, Article 24 of the Labor Code 2019, the employer and employee can agree on issues related to probation, and the rights and obligations of the parties during the probationary period through the 02 following form:
- Have a content of probation stated in the labor contract;
- Sign a probationary contract, separate from the labor contract.
It should be noted that the probationary period is not applied to employees entering into labor contracts with a term of less than 1 month, meaning that for those labor contracts, there can’t be a probationary period.
Normally, the businesses in Vietnam tend to use the probationary contract, separate from the official labor contract as this divides clearly the responsibilities of each party during each phase.
If the employee passes the probationary test, then they would sign the labor contract with the company.
Contents of the probation contract
Based on Article 21, Clause 2, Article 24 of the Labor Code 2019, the contents of the probationary contract include:
- Name and address of the employer and the full name and title of the person entering into the labor contract on the employer’s side;
- Full name, date of birth, gender, place of residence, CCCD/ID card number, or passport of the person entering into the labor contract on the employee’s side;
- Work and place of work;
- Working time, rest time;
- Labor protection equipment for employees.
Probation period
The probationary period shall be mutually agreed upon by the two parties based on the nature and complexity of the job, but only once for a job and according to the Labor Code, ensuring the following conditions:
- No more than 180 days for an enterprise manager’s work in accordance with the Law on Enterprises, the Law on Management and Use of State Capital invested in production and business in enterprises;
- No more than 60 days for jobs with professional titles requiring professional or technical qualifications from college or higher;
- No more than 30 days for jobs with professional titles requiring intermediate professional qualifications, technical workers, and professional staff;
- No more than 06 working days for other jobs.
However, the law does not prohibit trying multiple jobs with different jobs at the same enterprise. This means that the employer and employee can agree to try many probationary times, but each probationary period can only be for 1 job.
Therefore, if an employee ends the probationary period and still does not meet the requirements of the position, the employer can request a probationary period with other jobs that he or she has not tried.
In addition, if the result of the probationary period ends in failure, the employer can choose between 2 options which are to fire the probationary employee or give him/her another chance at that same position another time.
This is not against the law and most employees will gladly accept this second opportunity, as the other choice is to be fired. However, the contract needs to be remade with new dates and time periods.
It should be noted that employees, however, need to self-evaluate their ability to see if they really did fail the test or is it a trick of the company to delay or prolong the time to pay their benefits as official employees.
Cancellation of the probationary period
Clause 2, Article 27 of the Labor Code 2019 provides for the cancellation of the probationary period as follows: During the probationary period, each party has the right to cancel the signed probationary contract or labor contract without notice in advance and without compensation.
Benefits of the probationary employee
The probationary employee working in a company has many benefits, such as:
Salary
The employee’s salary during the probationary period shall be agreed upon by both parties but must be at least 85% of the official salary of that job.
The minimum salary of the official position is the regional minimum wage of the region where the employee works which has been updated at the beginning of July 2022.
Relax period
The probationary employee is guaranteed rest time between shifts at least 30 minutes if working during the day, and at least 45 minutes if working at night.
Annual leave
During the probationary period, employees won’t get the normal 12 annual days of leaves.
If the employee has to take a leave, the handling of each case will be by the company rules. The company may decide to not give leave, give leave but deduct salary, if the probation is successful, the day off will be deducted from the number of annual leave days of the official employee.
If the employee continues to work after the probationary period, the probationary period will be counted as 2 days (for the normal probationary period with 2 months) and they can use these days later in the year if needed.
Besides the annual leave, the probationary employees are also entitled to full pay leave during the holidays and Tet. However, the salary received is the agreed probationary salary.
The employer won’t have the right to force the probationary employees to work during the holidays in Vietnam.
Social insurance
From January 1, 2018, employees working under labor contracts from full 01 month to less than 03 months will be added to the subjects participating in compulsory social insurance.
This means that for labor contracts with 1 month or more, the employee will take part in the social insurance system in Vietnam, and the employer will have to pay social insurance contributions for them.
The separate probationary contract won’t allow the employee to have this benefit. This is one of the biggest reasons that employers select to sign separate contracts with the employees as mentioned above, to uncomplicate matters as well as gain the most benefits for them.
If the employee and the employer agree on the labor contracts that include content on probationary, it is an entire matter as the employer will have to pay social insurance contributions to employees even during the probationary period.
According to Official Letter 2447/LDTBXH-BHXH dated 26/7/2011, for employees who have a probationary period stated in the labor contract and that contract is subject to participation in compulsory social insurance, both the employer and the employee must pay compulsory social insurance for the whole probationary period.
The salary and wages used as the basis for payment of social insurance contributions during the probationary period are the salaries and wages stated in the labor contract.
It should be noted that although the Official Letter was issued on July 26th, 2011, most companies in Vietnam nowadays don’t pay social insurance contributions for their employees during this period, or even backtrack the payment after the employee got hired.
However, this regulation also has drawbacks as companies don’t know what to do if the employees don’t get hired. In those cases, do they still have to pay social insurance contributions, or if they have paid, can they retrace it and take back the payment as that man/woman has never been technically an ‘official employee’, only a probationary employee.
End of probation period
Article 27 of the Labor Code 2019 stipulates that at the end of the probationary period, the employer must notify the probation result to the employee.
In case of successful probation, the employer continues to perform the signed labor contract in case of probation content in the labor contract, or they will have to sign an official labor contract in case of entering into probationary contracts.
In case of unsatisfactory probation, the employer terminates the signed labor contract or probation contract, and/or creates a new contract for a different position, adds another probationary period, or another trial out for the probationary employee (must be agreed by both parties).
ASL LAW is the top-tier Vietnam law firm for Employment and Labor Law. If you need any advice, please contact us for further information or collaboration.
|
***Other service of ASL LAW – full service Vietnam law firm *** |
|
|
|
|
||
|
Oversea investment consultancy for Vietnamese enterprises |
|
|
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
