Headlines 24/02/2021 13:43 CH

From 2021, parties to probation contracts are still not required to participate in social insurance

Ms.Thụy Hân

“I am currently given two months’ probation at a real estate company. Please let me know whether I need to earn me a social insurance policy? If not, I am wondering whether I would receive an amount equivalent to the social insurance contribution that I am not required to pay?” - This is the question of Mr. Trong Hieu in HCMC.

Concerning this, Lawyer Nguyen Thuy Han, the Admin of Law Community Forum run by THU VIEN PHAP LUAT can help him find the answer as follows:

1. Pursuant to the 2014 Law on Social Insurance, the following employees must participate in the compulsory social insurance program:

- Persons working under indefinite-term labor contracts, definite-term labor contracts, seasonal labor contracts or contracts for given jobs with a term of between full 3 months and under 12 months, including also labor contracts signed between employers and at-law representatives of persons aged under 15 years in accordance with the labor law;

- Persons working under labor contracts with a term of between full 1 month and under 3 months;

- Cadres, civil servants and public employees;

- Defense workers, public security workers and persons doing other jobs in cipher organizations;

- Officers and professional army men of the people's army; officers and professional non-commissioned officers and officers and technical non- commissioned officers of the people's public security; and persons engaged in cipher work and enjoying salaries like army men;

- Non-commissioned officers and soldiers of the people’s army; non- commissioned officers and soldiers on definite-term service in the people’s public security; army, public security and cipher cadets who are entitled to cost- of-living allowance;

- Vietnamese guest workers defined in the Law on Vietnamese Guest Workers; 

- Salaried managers of enterprises and cooperatives;

- Part-time staffs in communes, wards and townships.

According to these regulations, employees on probation under probation contracts are not bound to participate in the compulsory social insurance program.

Note: If the employment contract has terms and conditions binding contracting parties to pay compulsory social insurance contribution, the employer and employee must pay compulsory social insurance contribution for the probationary period (Referring to Section 4 of the Official Dispatch No. 2447/LDTBXH-BHXH of the Vietnam Social Insurance).

2. Regarding payment of the amount equivalent to the rate of SI, UI and HI contribution to employees that are not required to participate in the compulsory social insurance program as provided in clause 3 of Article 168 in the 2019 Labor Code

As prescribed in Clause 3 of Article 168 in the 2019 Labor Code,

Article 168. Participation in social insurance, health insurance and unemployment insurance

....

3. Where an employee is not covered by compulsory social insurance, compulsory health insurance or unemployment insurance, the employer shall, in addition to and at the same time with salary payment, pay the employee an amount equal to the compulsory social insurance, compulsory health insurance, unemployment insurance premiums payable by the employer in accordance with regulations of law on social insurance, health insurance and unemployment insurance.

However, pursuant to Article 24 of the 2019 Labor Code, a probation contract must include the following information:

- The employer’s name, address; full name and position of the person who concludes the contract on the employer’s side;

- Full name, date of birth, gender, residence, identity card number or passport number of the person who concludes the contract on the employee’s side;

- The job and workplace;

- Job- or position-based salary, form of salary payment, due date for payment of salary, allowances and other additional payments;

- Work and rest time;

- Personal protective equipment for the employee;

Therefore, as probation contracts do not include any information about payment of social insurance contribution, employers are not required to add the amounts equivalent to the non-payment of social insurance contributions to salaries paid to employees on probation.

Click HERE to take a look at the opinion from the Department of Social Insurance affiliated to the Ministry of Labor, War Invalids and Social Affairs.

Previously, clause 3 of Article 186 in the 2012 Labor Code prescribed: “For an employee who is not covered by compulsory social insurance, compulsory health insurance and unemployment insurance, the employer shall simultaneously pay to the employee a wage and an amount which is equivalent to the level of contribution to compulsory social insurance, compulsory health insurance and unemployment insurance, and annual leave payments in accordance with regulations.”

However, this regulation has been applied according to the instructions given in clause 1 of Article 4 in the Decree No. 44/2013/ND-CP in the following cases:

- Employees when enter into labor contracts with many employers and employees and employers subject to participation in compulsory social insurance and unemployment insurance, the employees and employers of the first labor contracts shall be responsible for participation in compulsory social insurance and unemployment insurance as prescribed by law.

- The employers of remaining labor contracts shall be responsible for paying the amounts equal to the payable levels of compulsory social insurance and unemployment insurance belonging to their responsibility as prescribed by law at the same time with the salary term of employees.

>> CLICK HERE TO READ THE ARTICLE IN VIETNAMESE

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