Question 89: From 1/1/2018, are Employees in the probationary period the subjects to participate in compulsory SI, HI and UI?

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Pursuant to the Law on SI, Employees working under probationary contracts are not the subjects to participate in compulsory SI[1]. In addition, Employees working under probationary contracts are also not the subjects to participate in compulsory UI[2]. Labour law also prescribes that the content of a probationary contract does not include the provisions on SI and HI as an LC does[3]. Therefore, Employees in the probationary period are not the subjects to participate in compulsory SI, HI and UI.

Actually in some cases, the Employer counts the probationary period into the LC after the Employee has passed the probationary period and work officially for the Employer. The Employer may refer to Decision 2777/QĐ-BHXH dated 31/12/2015 to determine the bases to contribute to compulsory SI, HI and UI on behalf of Employees, which prescribes that for Employees who have the probationary period stated in their LCs or employment contracts which require them to participate in compulsory SI, HI and UI, then the Employer and Employees must contribute to SI, HI and UI funds for the probationary period. If probationary contracts of less than 3 months are separate from LCs or employment contracts, Employees working under such probationary contracts are not the subjects to participate in compulsory SI, HI and UI[4]. As such, the contribution to compulsory SI, HI and UI may be concluded as follows:

  • If it is a separate probationary contract – the probationary period is not stated in the LC – the probationary period will be implemented according to the probationary contract and the Employee is not required to participate in compulsory SI. However, it should be noted that pursuant to Article 186.3 of the Labor Code, if the Employee is not required to participate in compulsory SI, the Employer must pay the Employee, in addition to his salary, an amount equivalent to the SI contribution rate; and
  • If the probationary period is stated in the LC which is not a separate probationary contract, the contribution to SI, HI and UI is required for this period.

[1]Article 2.1 Law on SI

[2]Article 43.1 Law on employment 2013

[3]Articles 26.1 and 23.1.(i) Labor Code

[4]Section II.1.1 Decision 2777/QĐ-BHXH dated 31/12/2015