Trainee, worker on probation, or employee? Three relationships with similar names
A new graduate signs a paper with a Baghdad company headed “training agreement” for six months. She attends eight hours a day, receives a monthly sum and produces work that goes to clients. In the fifth month the company ends the agreement. Was she a trainee with no rights on termination, or a worker? This is one of the questions the Law Office of Ali Barakat in al-Yarmouk hears most often. The answer starts with separating three relationships that share one name in everyday speech and that Labour Law No. 37 of 2015 keeps apart.
Relationship one: an organised vocational training programme
This is training in the sense the Law regulates in its branch on vocational training. Its aim is to prepare people who have not yet entered the job market, or to retrain the unemployed and those at risk of unemployment and raise the skills of people in work (art. 25). Public and private training centres submit their programmes to the employment section. A private company or non-governmental organisation that wants to train must obtain a licence from the Ministry of Labour and Social Affairs and accept inspection and evaluation, and the trades, training periods, programmes and certificates are set by the Minister’s instructions (art. 26).
Signs of this relationship:
- A written contract setting out the programme’s objectives, stages and length, and what each of the trainee and the training body owes and receives, including training carried out on a work site (art. 27, first paragraph).
- A licensed training body, and a programme with stages and periodic evaluation.
- A medical check before the trainee starts, and the centre’s duty to follow health and safety conditions (art. 27, third paragraph).
Its own rules: the trainee may leave the programme whenever he chooses. The centre may end the contract at any time if the trainee falls short on commitment or discipline, or does not make tangible progress according to the evaluation reports. In both cases neither side owes the other compensation unless the contract says so (art. 28). If the trainee is injured or dies during or because of the programme, the Vocational Training Department bears the social security contributions for the training period, calculated on the minimum wage, and the provisions of the Workers’ Pension and Social Security Law apply to him (art. 27, second paragraph). A trainee is also entitled to paid annual leave in proportion to the length of his contract and before it ends (art. 74, fourth paragraph).
Relationship two: probation inside an employment contract
Here there is no training programme at all. There is an ordinary employment contract that opens with a trial period. It may be agreed for someone who holds no professional certificate proving his skill in the work assigned. It may not exceed three months from the day he starts, and it may not be repeated with the same employer (art. 37, second paragraph). If the worker proves unsuitable, the employer may end the contract during probation, provided it gives him at least seven days’ notice (art. 37, third paragraph).
The practical result: someone on probation is a worker in the full sense. The rules on individual employment contracts apply to him, including termination and the end-of-service benefit where it is due. He is not a trainee in the sense of articles 25 to 28.
Relationship three: “training” that is really work
The definition of a worker in article 1 expressly includes someone working “by way of training or probation” under the employer’s direction and supervision for pay. That means a heading does not save the agreement. If the person does productive work for the company, on hours it sets, under its managers, and is paid, and there is no licensed training body and no written programme with stages and evaluation, the relationship is most likely one of employment.
Going back to the graduate in the example: unless the “agreement” is a training contract under article 27 with a licensed provider, six months of productive paid work under management bring her position close to that of a worker, and ending the relationship then falls under the Labour Law’s termination rules. The subordination test in detail is on the page on who counts as a worker.
Our advice to employers and trainees
To employers: if you want a real training programme, run it through a licensed provider under a written contract that sets out objectives, stages and duration. If you want an employee you can test, write an employment contract with probation of no more than three months. Mixing the two is what breeds disputes.
To trainees: keep a copy of the contract, and keep proof of your hours, the nature of what you produce and what you are paid. That is the evidence on which the relationship is classified if a disagreement arises. Everything checked in an employment file is on the page on contracts, permits for non-Iraqis and social security. Contract duration is covered on the page on fixed-term and open-ended contracts.
Legal basis and sources
Frequently asked questions
May a trainee on a vocational programme withdraw whenever he wishes?
Yes. Withdrawal by his own will is allowed (art. 28, first paragraph), and neither side owes compensation unless the contract provides for it.
Who bears social security contributions if the trainee is injured?
The Vocational Training Department, for the training period, on the basis of the minimum wage, and the pension and social security provisions apply to the trainee (art. 27, second paragraph).
Is probation a kind of training?
No. It is part of an employment contract, may not exceed three months, and ending the contract during it requires seven days’ notice to the worker (art. 37).
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- 03What is reviewed in the employment contract, a non-Iraqi's work permit, and social-security enrolment?What is reviewed in an employment file: the written contract, a non-Iraqi's work permit, and social-security enrolment,.
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