In the current context, before the parties officially enter into an employment relationship through a final employment contract, there is usually a probationary period. Although the probation has not been specifically defined in the current Labor Law, legal issues regarding it have been regulated. During this period, employees as well as employers need to pay attention to some legal issues in order to ensure their rights and benefits and to avoid risks.
1. General provisions
As mentioned, although there is no clear definition, in an easy-to-understand way, probation is a voluntary agreement between two parties and is not mandatory. It is a short-term process in which both parties work together to evaluate the employee’s capacity, qualifications, awareness, working conditions, and labor utilization plan before making decisions to sign an official labor contract or continue to implement the contract that has been agreed upon.
Considering the probationary period, current laws still prioritize the agreement of each party, but that agreement must be within the allowed framework. Specifically, according to the regulations in Article 25 of the Labor Law 2019:
“ … Only one probationary period is allowed for a job and the probation shall not exceed:
1. 180 days for the position of enterprise executive prescribed by the Law on Enterprises, the Law on management and use of state investment in enterprises;
2. 60 days for positions that require a junior college degree or above;
3. 30 days for positions that require a secondary vocational certificate, professional secondary school; positions of or for technicians, and skilled employees;
4. 06 working days for other jobs”.
Considering salary, labor laws still prioritize the will of the parties. However, employees should note that during the probation, the salary must be at least 85% of the salary for that job.
II. Content and form of the probationary contract (agreement)
Considering the form, current regulations require the parties to agree on the probationary period, but there is no clear regulation on the form. The parties can agree on the content of the probation in the labor contract or agree on the probation by signing a separate probationary contract. In the case where the parties agree on the content of the probationary period in the labor contract, a written form is mandatory. However, to limit the risk of disputes, the parties should clearly agree in writing from the beginning in all cases.
Considering the content, the prevailing law respects all agreements and only stipulates mandatory terms. Compared to a regular labor contract, the mandatory content of the probationary relationship is reduced. Specifically, according to the regulations in Article 21 and Clause 2, Article 24 of the Labor Law 2019, the content of the probationary contract (agreement) includes:
“a) The employer’s name, address; full name and position of the person who concludes the contract on the employer’s side;
b) Full name, date of birth, gender, residence, identity card number or passport number of the person who concludes the contract on the employee’s side;
c) Tasks and workplace(s);
đ) Job – or position – based salary, form of salary payment, due date for payment of salary, allowances and other additional payments;
g) Working hours, rest periods;
h) Personal protective equipment for the employee”.
III. Other notes
Considering the period during and after probation:
During the probationary period, each party has the right to revoke the probationary contract or the labor contract without prior notice and have no obligation of compensation.
On the other hand, after the probationary period ends, the employer must inform the employee of the probationary results. If the probation is satisfactory, the employer will continue to implement the labor contract that has been agreed upon, in the case where the probationary period is agreed upon in the labor contract. Otherwise, the employer must sign a labor contract in the case of a separate probationary contract.
Considering insurance policies:
Article 2 of the Social Insurance Law 2014 mentions the subjects of compulsory social insurance and only requires employees with a labor contract of indefinite duration or a fixed-term contract of at least three months to participate in compulsory social insurance. Therefore, this subject is not subject to mandatory social insurance participation policies.
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