Many graduates still do not understand the regulations on the probationary period. This leads to the exploitation of businesses for their own benefit. So about the matter “Regulations on probation period in Vietnam” Let’s find out with LSX in the article below.
Legal grounds
- Labor Code 2019
- Decree 28/2020/ND-CP
Regulations on probation period in Vietnam
1. Employers and employees may agree on the content of probation stated in the labor contract or agree on probation by entering into a probationary contract.
2. The main contents of a probationary contract include the probationary period and the contents specified at Points a, b, c, dd, g and h, Clause 1, Article 21 of this Code.
3. The probationary period is not applied to employees entering into labor contracts with a term of less than 1 month.
What is the current maximum probationary period?
The probationary period shall be agreed upon by the two parties based on the nature and complexity of the job, but only once for a job and ensuring the following conditions:
1. 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;
2. No more than 60 days for jobs with professional titles requiring professional or technical qualifications from college or higher;
3. No more than 30 days for jobs with professional titles requiring intermediate professional qualifications, technical workers, and professional staff;
4. No more than 06 working days for other work
At the end of the probationary period, will I be notified of the probation results?
1. At the end of the probationary period, the employer must notify the probation result to the employee.
In case the probationary period is satisfactory, the employer shall continue to perform the signed labor contract in the case of probationary agreement in the labor contract or must enter into a labor contract in the case of employment contract.
In case of unsatisfactory probation, the signed labor contract or probationary contract shall be terminated.
2. During the probationary period, each party has the right to cancel the signed probationary contract or labor contract without prior notice and without compensation.
Is it possible to transfer the employee to a job other than the labor contract?
1. When facing unexpected difficulties due to natural disasters, fires, dangerous epidemics, applying measures to prevent and remedy occupational accidents, occupational diseases, electricity and water problems or due to production needs, business, the employer is entitled to temporarily transfer the employee to do other jobs compared to the labor contract but not exceeding 60 cumulative working days in 01 year; In case the employee is transferred to a job other than the labor contract for more than 60 cumulative working days in 01 year, it shall only be done when the employee agrees in writing.
The employer shall specify in the internal labor regulations the cases in which, due to production and business needs, the employer may temporarily transfer the employee to a job other than the labor contract.
2. When temporarily transferring the employee to a job other than the labor contract specified in Clause 1 of this Article, the employer must notify the employee at least 03 working days in advance, clearly informing temporary working term and assigning jobs suitable to the health and gender of employees.
3. Employees who move to a job other than the labor contract are paid according to the new job. If the salary of the new job is lower than the salary of the old job, the salary of the old job is kept unchanged for 30 working days. The salary according to the new job must be at least 85% of the salary of the old job but not less than the minimum wage.
4. If the employee does not agree to temporarily do a job other than the labor contract for more than 60 cumulative working days in a year and has to stop working, the employer must pay the stoppage salary as prescribed in Article 2 of this Law. 99 of this Code.
When to suspend the performance of a labor contract?
1. Cases of temporary suspension of the performance of a labor contract include:
a) The employee performs the military service or the obligation to join the Militia and Self-Defense Force;
b) The employee is held in custody or temporary detention in accordance with the law on criminal procedures;
c) The employee must abide by the decision to apply the measure of sending to reformatory, compulsory detoxification establishment or compulsory education institution;
d) Pregnant female employees as prescribed in Article 138 of this Code;
dd) The employee is appointed as an enterprise manager of a one-member limited liability company in which 100% of charter capital is held by the State;
e) The employee is authorized to exercise the rights and responsibilities of the state owner’s representative for the state capital portion of the enterprise;
g) The employee is authorized to exercise the rights and responsibilities of the enterprise with respect to the capital portion of the enterprise invested in another enterprise;
h) Other cases as agreed by both parties.
2. During the period of suspension of the performance of the labor contract, the employee is not entitled to the salary and the rights and benefits entered into the labor contract, unless otherwise agreed by the two parties or provided for by law.
Current cases of termination of labor contracts
1. The employment contract expires, except for the case specified in Clause 4, Article 177 of this Code.
2. The work has been completed according to the labor contract.
3. The two parties agree to terminate the labor contract.
4. The employee is sentenced to imprisonment but is not entitled to a suspended sentence or is not released under the provisions of Clause 5, Article 328 of the Criminal Procedure Code, is sentenced to death, or is prohibited from doing the job listed. in the labor contract under the court’s judgment or decision that has taken legal effect.
5. Foreign employees working in Vietnam are expelled under legally effective court judgments or decisions, or decisions of competent state agencies.
6. The worker dies; has been declared by the Court to have lost his civil act capacity, is missing or has died.
7. The employer being an individual dies; has been declared by the Court to have lost his civil act capacity, is missing or has died. The employer who is not an individual terminates its operation or is notified by the specialized business registration agency of the People’s Committee of the province that there is no legal representative or authorized person to do so. rights and obligations of the legal representative.
8. The employee is disciplined and fired.
9. The employee unilaterally terminates the labor contract according to the provisions of Article 35 of this Code.
10. The employer unilaterally terminates the labor contract according to the provisions of Article 36 of this Code.
11. Employers terminate employees according to the provisions of Articles 42 and 43 of this Code.
12. The work permit expires for foreign employees working in Vietnam according to the provisions of Article 156 of this Code.
13. In case the probationary agreement is agreed upon in the labor contract, the probationer fails to meet the requirements or one party cancels the probation agreement.
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Frequently asked questions
According to Article 26 of the 2019 Labor Code, wages during the probationary period are as follows:
“The employee’s salary during the probationary period shall be agreed upon by the two parties but must be at least 85% of the salary of that job.”
If the company wants to pay 7 million and you agree, this is legal without mentioning the figure of 9 million (official salary). But if it is clear that the official salary is 9 million and the probationary salary is 7 million, it is not consistent with the provisions of the law on the probationary salary.
Article 25 of the Labor Code 2019 records:
The probation period shall be agreed upon by the two parties based on the nature and complexity of the job, but only once for a job and ensuring the following conditions:
[…]
Accordingly, an enterprise is only required to try a job once for a job agreed by the parties.
In case the probationary period has expired but still requires the employee to try the job again with the work already done, the employer will be subject to an administrative fine of between VND 2 million and VND 5 million (based on Point a, Clause 2 of this Article, Decree 28/2020/ND-CP).
However, the law does not prohibit trying multiple jobs with different jobs at the same enterprise. That is, the employer and the employee can completely agree to try many times, but each probationary period can only perform 1 job.
Therefore, if the employee ends the probationary period and still does not meet the requirements of the job position, the employer can request a trial with other jobs that he or she has not tried.
Although the labor relationship has not been officially established, the employee during the probationary period is still entitled to the following benefits:
Working conditions:
About salary: The employee is paid at least 85% of the salary of the work that he or she tries.
Pursuant to: Article 26 of the Labor Code of 2019
Regarding working time: The normal working time is guaranteed not exceeding 08 hours/day and not exceeding 48 hours/week and the overtime working time does not exceed the prescribed level.
Pursuant to: Article 105 and Article 107 of the Labor Code 2019
Relax time:
Guaranteed rest time between shifts: at least 30 minutes continuously if working during the day, at least 45 minutes continuously if working at night (working in shifts continuously from 06 hours or more, the rest time will be between hours is counted in working hours).
Conclusion: So the above is Regulations on probation period in Vietnam. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
