At present, many workers do not understand regulations on probation contracts; thus, they have to suffer from undue disadvantages.
LEGAL PROVISIONS ON PROBATION AND PROBATION CONTRACTS
According to Clause 1, Article 26 of the Labor Code 2012, “An employer and an employee may reach agreement on the probation and the rights and obligations of the two parties during the probation period. If reaching agreement on the probation, the two parties may enter into a probation contract.” When the employee enters into a probation period, a probation contract must be signed by the employer and the employee. A probation contract must have the following contents:
- Name and address of the employer or the lawful representative of the employer;
- Full name, date of birth, gender, residence address, identity card number or other lawful documents of the employee;
- Job and workplace;
- Term of the labor contract;
- Wage, form of wage payment, deadline for wage payment, wage-based allowances and other additional payments;
- Working time, rest time;
- Labor protection equipment for the employee;
Probation contracts are similar to formal labor contracts. However, probation contracts do not include:
- Regimes for promotion and wage raise,
- Social insurance and health insurance,
- Training, retraining and occupational skill improvement.
LEGAL PROVISIONS ON WAGES AND PROBATION PERIOD
The wage for an employee during the probation period must be agreed upon by the two parties but must be at least equal to 85% of the wage for the job. According to the current Labor Code, workers are only allowed to enter into probation once for a particular job and employees working under seasonal labor contracts are not subject to probation. In addition, the probation period must be based on the nature and complexity of the job but probation is applied only once for each job and assure the following conditions:
- It does not exceed 60 days for posts which require professional and technical qualification of collegial or higher level.
- It does not exceed 30 days for posts which require professional and technical qualifications of intermediate vocational level, professional secondary level, or for technical workers and skilled employees.
- It does not exceed 6 working days for other types of jobs.
CAN EMPLOYEES CANCEL THE PROBATION AGREEMENT?
At present, there are cases in which workers are afraid to terminate a probation contract despite the fact that the job is not appropriate or are not paid fully when unilaterally terminating the contract. According to Clause 2, Article 29 of the Labor Code 2012: “During the probation period, each party may cancel the probation agreement without prior notice and compensation if the probational job fails to meet the requirements that have been agreed by the two parties.” Thus, employees have the right to unilaterally terminate the probation contract without notice and compensation.
Besides, according to Clause 3 Article 426 of the current Civil Code: “When the performance of a contract is unilaterally terminated, the contract shall terminate as from the time the other party receives the termination notice. The parties shall not have to continue to perform their obligations. The party that has already performed its obligations shall have the right to demand payment from the other party.” Therefore, in this case, employees are paid for the working days. Employers are responsible for paying wages to employees though they are bound by a probation contract. The probation contract is a familiar one, so we need to understand law regulations so that we can protect our rights and interests. Especially, employees must carefully read the probation contract before signing in order to avoid undue risks.
PHAN LAW VIETNAM
Hotline: 1900.599.995 – 0794.80.88888
Email: info@phan.vn
