I am a recent university graduate and signed a probationary contract at a seafood trading company in Da Nang from October 1, 2020, to November 30, 2020. After the probationary period, I have signed a labor contract. I would like to be advised that during the probationary period, am I subject to compulsory social insurance and unemployment insurance?
According to Article 2 Law On Social Insurance 2014, employees working under probationary contracts are not subject to compulsory social insurance participation. In addition, employees working under probationary contracts are not required to participate in unemployment insurance under Article 43 of the Employment Law 2013. Labor Code 2019 (effective) from January 1, 2021, replacing the Labor Code 2012) stipulates that the content of the probationary contract does not include the provisions on social insurance and health insurance as for the content of the labor contract. Thus, it can be seen that, in the spirit of Vietnam's labor law, employees who are on probation are not subject to compulsory participation in social insurance, health insurance, and unemployment insurance.
However, in some cases, the employer includes the probationary period in the labor contract after the employee has completed the probationary period. In this case, Official Letter No. 2447/LDTBXH-BHXH dated July 26, 2011, of the Ministry of Labor, War Invalids, and Social Affairs may be referred. The employee has a probationary period specified in the labor contract or work contract that is subject to participation in social insurance. If compulsory, health insurance, unemployment insurance, the unit, and the employee must pay social insurance, health insurance, unemployment insurance for the whole probationary period. Thus, if your probationary period is agreed upon and stated in the Labor Contract, you are subject to compulsory social insurance participation.
In case a probationary contract of fewer than 3 months is separate from the labor contract or working contract, the employee signing such probation contract is not subject to compulsory social insurance, health insurance, and unemployment insurance premiums.
Thus, it can be concluded that the payment of compulsory social insurance, health insurance, and unemployment insurance shall be made as follows: If the probationary contract is separate, the probationary period is not stated in the contract, the employee, the probationary period shall comply with the probationary contract and then the employee is not subject to compulsory social insurance participation.
Quang Vũ – FDVN Law Firm
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