How to explain the trial period?

The probation period refers to the time period during which the employer conducts further inspections of the newly recruited employees’ ideological and moral character, work attitude, actual work ability, physical condition, etc. The labor law stipulates that the labor contract may stipulate a probation period, but the maximum period shall not exceed six months. The probation period is stipulated in the labor contract. On the one hand, it can safeguard the interests of the employer and find suitable workers for each job. The probation period is a system for the employer to examine whether the worker is suitable for the job and for the enterprise to examine. Whether the employee meets the recruitment requirements at the same time to avoid unnecessary losses to the employer. On the other hand, it can protect the interests of newly recruited employees and allow the hired employees time to investigate and understand whether the employer's work content, labor conditions, labor remuneration, etc. comply with the provisions of the labor contract. The probation period stipulated in the labor contract not only reflects the rights and obligations of the parties entering into the labor contract, but also provides guarantee for the performance of other terms of the labor contract.

In the employment process, the current phenomenon of abusing the probation period to infringe on the rights of workers is relatively common, including what kind of labor positions require a probation period, how long the probation period is to be agreed upon, and what is used as a reference to set the probation period Period, etc., which is quite confusing in practice. Employers usually agree on a probation period regardless of the nature and length of the job, and regardless of whether it is necessary to agree on a probation period. As long as the period does not exceed the six months stipulated in the labor law, it will meet the upper limit stipulated by the law. Some employers sign one-year labor contracts with workers, of which half a year is a probation period; some employers with highly seasonal production and operations even combine the probation period and the labor contract period into one, which is generally long. When the probation period is up , the labor contract has also expired; some workers are often agreed to a probation period more than once in the same employer, and once in another position. The issue of probation period is one of the issues on which workers have the most opinions in labor contract legislation.

The Labor Contract Law has made targeted provisions on the abuse of the probation period and the excessive length of the probation period.

(1) Limit the minimum term of a fixed-term labor contract that can stipulate a probation period, and on the basis that the labor law stipulates that the probation period shall not exceed six months, based on the length of the labor contract term, Probation period refinement. The specific provisions are:

If the labor contract period is more than three months, a probation period can be agreed upon. In other words, a fixed-term labor contract can stipulate that the minimum starting point for the probation period is three months.

For labor contracts with a term of more than one year and less than three years, the probation period shall not exceed two months; for fixed-term or unfixed-term labor contracts of more than three years, the probation period shall not exceed six months. This is a specific measure of the Labor Contract Law for employers to stipulate a probation period of six months regardless of circumstances.

It should be noted that the length of the labor contract is not the only reference for agreeing on the probation period. In practice, many jobs do not require a long probation period for workers to be competent. Loaders, construction site workers, laborers, etc. do not have much technical content, and only three days are enough. However, some employers frequently stipulate probation periods of three to five months, or even half a year, maliciously exceeding the statutory upper limit of probation periods. This aggravates the inequality of labor relations and increases workers' career uncertainty and financial burden. This reminds both parties to the labor contract, especially the employee, to take the technical content into consideration when agreeing on the probation period. For employers, if they are still unable to judge whether an employee is competent within a reasonable period of time, they should bear the resulting risks.

Germany's "Part-time and Fixed-Term Labor Contract Law" stipulates that a probation period cannot be agreed in a fixed-term labor contract, and can only be agreed in a non-fixed-term labor contract. Italian law stipulates that the probation period for general workers is fifteen to thirty days, that for technicians is three months, and that for enterprise managers is six months.

(2) The same employer and the same employee can only agree on a probation period once.

This involves an understanding of the nature of the probation period in the labor contract. The probation period refers to the employer's further inspection of the ideological and moral character, labor attitude, actual work ability, physical condition, etc. of the newly recruited employees. time limit.

These situations have been basically clarified during the probation period when hiring workers.

(3) In order to curb the phenomenon of short-term employment by employers, not all labor contracts can stipulate a probation period.

A probation period shall not be agreed upon in a labor contract that is limited to the completion of certain work tasks or if the labor contract term is less than three months. During the consultation process, quite a few opinions suggested that the labor contract with an agreed probation period should be modified to more than one year.

(4) If the labor contract only stipulates a probation period or the labor contract period is the same as the probation period, the probation period will not be established and this period shall be the labor contract period.

On the issue of probation period, the following points need to be emphasized:

(1) The probation period is an agreed term. If both parties have not agreed in advance, the employer cannot use the probation period as a basis for to terminate the labor contract.

The employer and the employee, both parties to the labor contract, must fully negotiate and reach agreement on the terms of the probation period before the terms of the probation period can be established. A contract is the result of the unanimous expression of intention of both parties. It is an agreement reached after fully expressing their respective opinions and reaching agreement on the contract terms on the basis of mutual benefit and reciprocity. Therefore, neither party shall be superior to the other party, shall not impose its will on the other party, and shall not sign the probation period clause of the labor contract by means of forced orders, coercion, etc.

(2) At the same time, the Labor Contract Law stipulates the conditions for the probation period, and workers should enjoy all labor rights during the probation period.

These rights include the right to receive labor remuneration, the right to rest and vacation, the right to obtain labor safety and health protection, the right to receive vocational skills training, the right to enjoy social insurance and welfare, and the right to submit a labor dispute settlement and other labor rights stipulated by law. It also includes the right to participate in democratic management or to negotiate on an equal footing with the employer to protect the legitimate rights and interests of workers through workers' conferences, workers' congresses or other forms in accordance with legal provisions. They cannot be restricted based on their status during the probationary period and should be distinguished from other workers.

(3) The probation period is included in the term of the labor contract.

In other words, regardless of whether the parties to the labor contract conclude a one-year labor contract, a three-year or a five-year labor contract, if a probation period is agreed upon, the period preceding the labor contract period shall (For example, it may be three days, five days or one week, it may be one month or two months) is the probation period, which is included in the entire labor contract period. Regardless of whether a labor contract is concluded after the probation period or not, the probation period is not allowed to be agreed separately.

(4) The provisions of the Labor Contract Law on the probation period reflect the general equality of the rights and obligations of both parties to the labor contract. As stipulated in the Termination of Labor Contract, the employee may notify the employer to terminate the labor contract during the probation period; if the employee is proven not to meet the employment conditions during the probation period, the employer may also terminate the labor contract.

(5) In order to circumvent the law, some employers agree on probationary periods, adaptation periods, and internship periods. These are probation periods in disguise, and their purpose is nothing more than to lower workers’ benefits and facilitate their termination. Labor contract. In order to protect the legitimate rights and interests of workers, it should be clear that these situations are treated according to the probation period.

Legal provisions:

Article 19 of the "Labor Contract Law" If the labor contract term is more than three months and less than one year, the probation period shall not exceed one month; the labor contract term is one year If the labor contract is between three years and above, the probation period shall not exceed two months; for a fixed-term or unfixed-term labor contract of above three years, the probation period shall not exceed six months.

The same employer and the same employee can only agree on a probation period once.

A probation period shall not be agreed upon in a labor contract that is limited to the completion of certain work tasks or if the labor contract term is less than three months.

If the labor contract only stipulates a probation period or the labor contract term is the same as the probation period, the probation period will not be established and that period will be the labor contract term.