Maximum term of probationary contract in Vietnam

Probation is a procedure during the labor contract conclusion process and is conducted before the official labor contract is signed. Many workers have inquired about the maximum term of a probationary contract in Vietnam. In the following article, Viet An Law will advise clients on these questions according to current legal regulations.

Legal basis

• Labor Code 2019;
• Decree 12/2022/ND-CP on sanctioning administrative violations in the fields of labor, social insurance, and Vietnamese workers working abroad under contracts.

What is a probationary contract?

The Labor Code 2019 does not clearly state the concept of probationary contracts, but only regulates probation in Clause 1, Article 24 of this Code. Accordingly, it can be understood that a probationary contract is an agreement between the employee and the employer on probation for a certain period before signing an official labor contract.

The employer and employee can agree on the probation content stated in the labor contract or agree on probation by signing a probation contract.

The main contents of the probationary contract include:

• Probationary period;
• Name and address of the employer and full name and title of the person concluding the labor contract on the employer’s side;
• Full name, date of birth, gender, place of residence, and citizen Identification card number, of the person entering into the labor contract on the employee’s side;
• Scope of work and work location;
• Salary according to job or title, form of payment, payment period, salary allowances, and other additional payments;
• Working time, rest time;
• Provide labor protection equipment for workers.

Maximum term of probationary contract in Vietnam

Probationary period

Probation is essentially a voluntary agreement between both parties. This is a process where the parties try it out for a certain period to evaluate their capacity, qualifications, awareness, working conditions, employment conditions, etc before deciding to sign an official labor contract

The probationary period is agreed upon by both parties based on the nature and complexity of the job, but the probationary period is only allowed once for a job. Pursuant to Article 25 of the Labor Code 2019, depending on each case, the probationary period is prescribed differently. Specifically:

• No more than 180 days: The work of the enterprise manager according to the provisions of the Enterprise Law, the Law on Management and Use of state capital invested in production and business at enterprises;
• No more than 60 days: Jobs with professional titles require professional and technical qualifications from college or higher;
• No more than 30 days: Jobs with professional titles require professional qualifications, intermediate technical skills, technical workers, professional staff
• No more than 06 working days: Other work
• The probationary period does not apply to employees who sign labor contracts with a term of less than 01 month.

How to calculate the probationary period

The probationary period is agreed upon by both parties based on the nature and complexity of the job.

Note that rest time and working time are the main contents of the leave contract. Accordingly, the probationary period is calculated based on the actual number of days the employee works, excluding time off.

The new regulation about the probation period applies from 2021

• Compared to the Labor Code 2012, the Labor Code 2019 (effective 2021) has added probationary cases for employees who are business managers. Currently, the maximum probationary period can be up to 180 days instead of 60 days as before.
• At the same time, the Labor Code 2019 has shortened the period of non-probation and only applies non-probation to cases where employees sign contracts with a term of less than 01 month. However, previously the Labor Code 2012 stipulated that employees working under seasonal labor contracts of less than 12 months were not subject to probation.

Obligations of the employer at the end of the probationary period

According to Article 27 of the Labor Code 2019, at the end of the probationary period, the employer has the following obligations:

• At the end of the probationary period, the employer must notify the employee of the probation results.
• In case the probationary period is satisfactory, the employer will continue to perform the concluded labor contract in the case of a probationary agreement in the labor contract or must enter into a labor contract in case of entering into a probationary contract.
• In case the probationary period does not meet the requirements, the signed labor contract or probationary contract will be terminated.

Penalties for violating regulations on probation period

According to Article 10 of Decree 12/2022/ND-CP, employers can be fined from 2,000,000 VND to 5,000,000 VND for the following acts:

• Probation period exceeds the prescribed time;
• Require employees to try more than once for one job.

For the act of requiring probation for employees working under labor contracts with a term of less than 1 month, the employer may be fined from 500,000 VND to 1,000,000 VND.

Note: According to Clause 1, Article 6 of Decree 12/2022/ND-CP, the fine level prescribed for these violations is the fine level for individuals. The fine for organizations is 2 times the fine for individuals.

Some related questions about the maximum term of probationary contract in Vietnam

Does the probation content need to be made into a separate probation contract?

Not required. The employer and employee can agree on the probation content stated in the labor contract or agree on probation by signing a probation contract.

Can we try multiple times for the same job?

The probationary period is agreed upon by both parties based on the nature and complexity of the job, but the probationary period is only allowed once for a job.

How much is the salary during the probationary period?

The employee’s salary during the probationary period is agreed upon by both parties but must be at least equal to 85% of the salary of that job.

Do I need to give advance notice when quitting my job during the probationary period?

No. During the probationary period, each party has the right to cancel the probationary contract or labor contract without prior notice and compensation.

In case of sick leave or temporary leave, the law does not stipulate advance notice during the probationary period, so it is up to the parties to agree to do so.

Does the company have to pay insurance for probationary employees?

No. Social insurance, health insurance, and unemployment insurance are only mandatory for labor contracts and not mandatory for probationary contracts. Therefore, the company does not have to pay insurance for probationary employees.

What are the penalties for not paying probationary workers?

According to Clause 2, Article 17 of Decree 12/2022/ND-CP, the act of not paying wages to probationary workers will be fined at one of the following levels:

• From 5,000,000 VND to 10,000,000 VND for violations from 01 to 10 employees;
• From 10,000,000 VND to 20,000,000 VND for violations from 11 to 50 employees;
• From 20,000,000 VND to 30,000,000 VND for violations of 51 to 100 employees;
• From 30,000,000 VND to 40,000,000 VND for violations from 101 to 300 employees;
• From 40,000,000 VND to 50,000,000 VND for violations of 301 or more employees.

Labor legal services of Viet An Law

• Consulting on regulations on probationary periods and probationary contracts;
• Consulting on terms of labor regulations, guidance on drafting labor regulations, and registering labor regulations;
• Drafting labor contract terms, and providing legal advice on labor contracts;
• Advise businesses on terminating labor contracts and handling labor discipline;
• Representing clients to protect their rights and resolve labor disputes;
• Regular labor legal advice for businesses and employees.

Above is Viet An Law’s advice on the maximum term of probationary contract in Vietnam. If you have questions or need advice on legal services related to labor regulations as well as other labor legal issues, please contact Viet An Law for the best support!