Salary regime during the probation period

Currently, the majority of employees go through a probationary period before signing a labor agreement to become official employees. The salary regime is one of the particular concerns for employees during this period. It is also important for employers to address this issue legally to establish a good image for their company and limit the possibility of being subjected to administrative sanctions. This article will analyze some basic issues of the salary during the probationary period, including: Salary rate; Wages for overtime and night work; Is the regulation on minimum working time to receive probationary salary legal?

1. Salary during the probationary period

Under Article 26 of the Labor Code 2019, the salary during the probationary period must not be lower than 85% of the salary rate of such a job. The specific salary will be agreed upon by the employee and the employer and recorded in the probationary agreement or labor agreement.

In case the employer pays the employee during the probationary period less than 85% of the salary for such a job, the employer will be fined from VND 2,000,000 to VND 5,000,000 (for individuals) or from VND 4,000,000 to VND 10,000,000 (for organizations). In addition, the employer will be required to pay full salaries to employees (Article 10 and Article 6.1 of Decree no. 12/2022/ND-CP).

2. Wages for overtime and night work during the probationary period

In accordance with the current law, there is no distinction between overtime and night work wages paid to probationary employees and those who have signed labor agreements. Therefore, during the probationary period, if the employee works overtime or works at night, his/her salary will be calculated under Article 98 of the Labor Code 2019, specifically as follows:

In case of working overtime, the employee will be paid:

• On normal workdays, at least equal to 150% of the salary unit or actual salary paid for his/her current job;
• On weekends, at least equal to 200% of the salary unit or actual salary paid for his/her current job;
• On public holidays and paid leave days, at least equal to 300% of the salary unit or actual salary paid for his/her current job.

In case of working at night: the employee will be paid an additional amount of at least 30% of the salary unit or actual salary paid for his/her current job.

In case the employer does not pay or does not pay enough overtime wages or night work wages, the employer will be fined up to VND 50,000,000 (for individuals) or up to VND 100,000,000 (for organizations). In addition, the employer will be required to pay full wages and the interest on the late payment or underpayment thereof to the employee, calculated according to the highest demand deposit interest rate of the state commercial banks announced at the time of the penalties (Article 17 and Article 6.1 of Decree no. 12/2022/ND-CP).

3. Is the regulation on minimum working time to receive probationary salary legal?

Currently, many probationary agreements stipulate the minimum number of working days to receive probationary salary. For example: During the probationary period, if the employee does not work for 10 days, the company will not pay the employee.

Under Article 27.2 of the Labor Code 2019: “During the probation period, each party may terminate the signed probation agreement or labor agreement without prior notice and compensation”.

Accordingly, even if the employee notifies the termination of the agreement at any time during the probationary period, the employee will not suffer any legal consequences regarding any issues, including salary. Therefore, regardless of the actual working time, in case the agreement is terminated, the employer must pay the employee for the number of actual working days.

In conclusion, the agreement stipulating the minimum working time to receive a probationary salary is not legal under the provisions of labor law. Therefore, this issue should not be agreed upon in the agreement.

Although current law does not have administrative sanctions for probationary agreements/labor agreements having the above provisions, in case the employer does not pay probationary salaries to the employee, the employer will be fined up to VND 5,000,000 (for individuals) or up to VND 10,000,000 (for organizations). In addition, the employer will be subject to remedial measures in accordance with the law (Article 10 and Article 6.1 of Decree no. 12/2022/ND-CP).

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