Latest regulations on signing probationary contracts in 2023

Please ask about the latest regulations related to signing probationary contracts in 2023 and issues to note? - Reader Phuong Oanh

Is it mandatory to have a probationary period before signing an employment contract?

Pursuant to Clause 1, Article 24 of the 2019 Labor Code, employers and employees may agree on the probationary content stated in the labor contract or agree on the probationary period by signing a probationary contract.

Thus, it can be determined:

- Firstly, whether or not a probationary period is required before signing a labor contract depends on the agreement between the employer and the employee, it is not required by law. If both parties agree, the labor contract can be signed immediately, without the need for a probationary period.

- Second, the employer and employee can sign a labor contract that includes an agreement on the time and content of the probationary period; it is not required to sign the labor contract and the probationary contract in two separate copies.

However, it should be noted that according to Clause 3, Article 24 of the 2019 Labor Code, in case an employee signs a labor contract with a term of less than 01 month, the probationary regime does not apply, meaning there is no probation in this case.

Is it mandatory to sign a probationary contract?

Based on the above provisions and analysis, whether or not there is a probationary period, or whether or not there is a probationary contract, depends on the agreement between the employee and the employer (except in the case of signing a labor contract with a term of less than 01 month). The law does not require the employer and the employee to sign a probationary contract.

The intended content of the probationary contract

Pursuant to Clause 2, Article 24 of the 2019 Labor Code, the main contents of a probationary contract include:

(1) Probationary period: agreed upon by both parties based on the nature and complexity of the job, but probationary period is only allowed once for each job and the following conditions must be ensured:

- No more than 180 days for the work of a business manager as prescribed by the Law on Enterprises, the Law on Management and Use of State Capital Invested in Production and Business at Enterprises;

- No more than 60 days for jobs with professional titles requiring professional or technical qualifications from college level or higher;

- No more than 30 days for jobs with professional titles requiring intermediate technical or professional qualifications, technical workers, and professional staff;

- No more than 06 working days for other work.

(2) Name and address of the employer and full name and title of the person signing the labor contract on the employer's side ; specifically:

- Name of the employer: for enterprises, agencies, organizations, cooperatives, and cooperative unions, the name of the enterprise, agency, organization, cooperative, or cooperative union shall be taken from the name of the enterprise, agency, organization, cooperative, or cooperative union stated in the certificate of registration of the enterprise, cooperative, or cooperative union or the certificate of investment registration or the document approving the investment policy or the decision to establish the agency or organization; for cooperative groups, the name of the cooperative group stated in the cooperation contract; for households and individuals, the name of the representative of the household or individual stated in the issued Citizen Identification Card or Identity Card or passport shall be taken from the name of the representative of the household or individual stated in the issued Citizen Identification Card or Identity Card or passport;

- Employer's address: for enterprises, agencies, organizations, cooperatives, and cooperative unions, take the address stated in the certificate of registration of enterprises, cooperatives, and cooperative unions or the investment registration certificate or the document approving the investment policy or the decision to establish the agency or organization; for cooperatives, take the address stated in the cooperation contract; for households and individuals, take the address of residence of that household or individual; telephone number, email address (if any);

- Full name and title of the person concluding the labor contract on the employer's side: write the full name and title of the person authorized to conclude the labor contract as prescribed in Clause 3, Article 18 of the 2019 Labor Code.

(3) Full name, date of birth, gender, place of residence, ID card number, Citizen Identification Card or passport number of the person signing the labor contract on the employee's side ; specifically:

- Full name, date of birth, gender, residential address, telephone number, email address (if any), ID card number or Citizen Identification Card or passport number issued by a competent authority of the person signing the labor contract on the employee's side as prescribed in Clause 4, Article 18 of the 2019 Labor Code;

- Work permit number or confirmation document not subject to work permit issuance issued by competent authority for foreign employees;

- Full name, residential address, Citizen Identification Card number or Identity Card or passport number, phone number, email address (if any) of the legal representative of the person under 15 years old.

(4) Probationary salary: The employee's salary during the probationary period is agreed upon by both parties but must be at least 85% of the salary for that job.

(5) Work and workplace; specifically:

- Work: the work that workers must perform;

- Workplace of employee: location, scope of work where employee performs work according to agreement; in case employee regularly works in many different locations, fully record those locations.

(6) Working hours, rest hours: according to the agreement of both parties or the agreement to implement according to the labor regulations, regulations of the employer, collective labor agreement and provisions of law.

(7) Labor protection equipment for employees: includes types of personal protective equipment during work as agreed upon by both parties or according to collective labor agreements or according to regulations of the employer and regulations of law on labor safety and hygiene.

Source: https://baoquocte.vn/quy-dinh-ky-hop-dong-thu-viec-moi-nhat-2023-248241.html