Answer:
- For the apprentices, trainees:
According to the Labour Code, the annual leaves are applied in case the Employee has worked for full 12 months for the Employer[1]. Thereby, it may be understood that the right to annual leave is only reserved for the Employee who has signed the LC with the Employer and have worked for full 12 months or more. In particular, the working time of the Employee to calculate the number of annual leave days mentioned above will include the period of apprenticeship or practical training in order to work for the Employer if, after the completion of the apprenticeship and practical training, the Employee has still worked for the Employer[2].
With the above regulations, during the periods of apprenticeship or practical training in order to work for the Employer, apprentices and trainees will not be entitled to annual leaves like other official Employees. Instead, those periods will only be included in the working time for calculating the number of annual leave days if the Employee has continued to work for the Employer under the capacity of official Employee after the expiration of the periods of apprenticeship or practical training.
It should also be noted that, in addition to the aforementioned apprentices and trainees, the Labour Code does not have any specific regulations governing interns at the enterprise. Therefore, the regimes and benefits for these subjects will depend on the agreement between the parties. Accordingly, the internship period is not included in the working time for calculating the annual leave if the interns are recruited by the enterprise and enter into a LC with the Employer.
2. For the Employee under a probationary period
If the Employee has probationary periods as prescribed in the LC and then are officially employed by the Employer, the probationary period will be included in the working time of the Employee for calculating the number of annual leave days according to the enterprise’s policy[1]. Thus, similar to the case of apprentices and trainees, only when the Employee enters into the LC with the Employer (i.e. when the Employee’ probationary work meets the requirements), the probationary period will be counted into the working time of the Employee for calculating the number of annual leave days according to the provisions of the Labour Code.
Therefore, the Employee who is under the probationary period are not entitled to annual leave. The Employer is also not obliged to pay annual leave to the Employee when he or she is no longer employed due to unsatisfactory probationary work. However, in reality, some enterprises still allow the Employee who is under probationary period to take annual leave according to the enterprise’s own regulations on the basis of the ratio of the number of actual working months of the Employee at the time of application for leave. This is not contrary to the provisions of the Labour Code because it is more beneficial to the Employee. However, this policy should be clearly stated in the CLAs, ILR or probationary contracts (if any).
[1] Article 113 of the Labour Code
[2] Article 65.1 of Decree 145/2020/ND-CP of the Government dated 14/12/2020
[3] Artice 65.2 of Decree 145/2020/ND-CP of the Government dated 14/12/2020
