Employees should be aware of the following requirements when signing a probationary contract beginning in 2021:

Agreement on the contents of probation in the labor contract

Clause 1, Article 24 of the Labor Code 2019 (effective from January 1, 2021), An employer and an employee may include the contents of the probation in the employment contract or enter into a separate probation contract.

Thus, instead of signing a probation contract, the parties can also sign labor contracts, including the terms of probation.

With signing labor contracts for probation, employees will be guaranteed more full benefits and rights than probation contracts.

Employees are not required to be on probation

Labor Code 2019, there is no regulation requiring employees take on probationary period before signing labor contracts. Whether or not to apply for probation is due to an agreement between the employee and the employer.

In fact, in almost cases, employers require employees to take on probationary period before signing a formal contract.

On the other hand, Clause 3, Article 24 of the Labor Code in 2019 also stipulates: “Probation is not allowed if the employee works under an employment contract with a duration of less than 01 month.”

Accordingly, employees will not have to take on probationary period with a term of less than 01 month but to sign labor contracts directly.

Probation period

According to Article 25 of the Labor Code in 2019, the probationary period shall be negotiated by the parties on the basis of the nature and complexity of the job. Only one probationary period is allowed for a job and the probation shall not exceed:

• 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;
• 60 days for positions that require a junior college degree or above;
• 30 days for positions that require a secondary vocational certificate, professional secondary school; positions of or for technicians, and skilled employees;
• 06 working days for other jobs.

Regimes for probation workers

Although not officially established labor relationship, workers in probationary period also have many benefits and rights:

• Working conditions:

• • Working time: Guaranteed normal working time of no more than 08 hours/day and no more than 48 hours/week and overtime time does not exceed the prescribed level.
  • Guaranteed half-shift time: at least 30 minutes continuously if working during the day, at least 45 minutes continuously if working at night (working in continuous shifts from 06 hours or more, the half-time break is counted at working hours).
  • Annual leave: Pursuant to Clause 2, Article 65 of Decree No. 145/2020/ND-CP, the probation period is also calculated for the year if the employee continues to work for the employer after the probation period expires.
  • Holidays, Tet: According to Article 112 of the Labor Code in 2019, employees are entitled to paid during the holidays and Tet holidays. Therefore, employees who try their hand at these occasions are also entitled to leave and enjoy the agreed probation salary.
• On insurance:

Compulsory social insurance (social insurance) applies only to employees who sign labor contracts with a term of 01 month or more. Therefore, if the labor contract is signed for probation, the employee will be paid social insurance by the employer.

If you need more detailed advice, please contact: Deputy Director in charge of business Lawyer: Nhat Nam via hotline: 0912.35.65.75, call the free legal consultancy call center: 1900 6575 or send a service request via email: lienheluathongbang@gmail.com .

Wish you and your family healthy, peaceful and successful!

Best regards!