Is it possible to conduct business in AMW's residential premises, as is the issue of overtime for soldiers carrying out tasks under the “Tarchy East” and can residential services and travel expenses be collected at the same time? Experts of the Ministry of Defence explain the provisions of the Act on the accommodation of the SZ and the defence of the homeland.
I'm a professional soldier. I plan to set up an unincorporated activity in the AMW flat assigned to me and make the passion of taking-out. The activity would be conducted occasionally (maximum 4 weekend days a period after six hours), without nuisance to the neighbours, without interference with the premises, with all sanitary standards and with the approval of the unit commander. Can the Military Property Agency prohibit me from doing this kind of business?
Pursuant to Article 2(1) of the Act of 22 June 1995 on the accommodation of the Armed Forces of the Republic of Poland, dwellings allocated to professional soldiers by the AMW are exclusively intended to meet the needs of the soldiers and their families.
The accommodation is not intended for any business activity, whether registered or not, regardless of its scale, nature or frequency. Even if the activity is sporadic and unburdened, its conduct is incompatible with the intent of the premises and constitutes a violation of the rules on the usage of State Treasury property.
The Military Property Agency, as a manager of the housing resource transferred to the Armed Forces of the Republic of Poland, has competence to decide how to usage the premises provided. Refusal to agree to prosecute a gainful activity – besides in an unincorporated form – is simply a legal manifestation of a management decision, which falls within the scope of the AMA's rights under the provisions of the Act on Accommodation and General Principles of Public Property Management.
In assessing the acceptability of unregistered activities in AMW's residential premises, account should be taken of a number of applicable criteria:
– compliance with the intent of utilizing the premises – the premises were allocated only to supply the surviving needs of the soldier and his family, alternatively than for commercial activities;
– method and usable nature of the premises – dwellings are not adapted for catering activities, even to a limited extent;
– nuisances to another residents – baking can origin odour nuisances, increased operation of the installation and hazard of compromising the comfort of neighbours' lives;
– the rotational nature of the premises – these premises must keep a method condition enabling them to be further utilized by another soldiers;
– equality of access and the precedent nature of the case – consent could make a dangerous precedent and lead to an increase in akin conclusions, hard to control in terms of scale and compliance.
The following risks arise from the pursuit of commercial activity in AMW's residential premises – even incidentally:
– making the address of residence public, e.g. in the CEIDG registers;
– ambiguity in insurance liability and possible damage;
– the hazard of sanitary infringements – even if the standards are met, the premises are not qualified as a utility premises;
– deficiency of adaptation of the premises to method and sanitary requirements (HACCP, ventilation, fire prevention, etc.);
– the deficiency of consistent management guidelines – presently there are no implementing rules allowing uniform approval by AMW regional branch directors, which creates a hazard of unequal treatment and resource management difficulties.
Should soldiers carrying out tasks under the “Hard East”, working between 7 and 17 hours or longer, during the Monday-Sunday period, be given overtime for over-normative working time? How does that relate to Article 275 of the Law on Defence of the Motherland?
Article 275 of the Law on the Defence of the Motherland governs the basic principles concerning the service time of professional soldiers. It provides that tasks should be designed in specified a way that they can be carried out within the 40-hour service week. However, the Act allows the anticipation of exceeding this dimension, on average up to 48 hours in a four-month trading period. In the event of a work of more than 40 hours a week, a soldier shall have equivalent free time. Additionally, the legislator orders to supply the soldier with a minimum of 11 hours of uninterrupted remainder per day and a 24-hour weekly rest.
However, those provisions are not absolute. In Article 275(4) of the Law on the Defence of the Motherland, the legislator provided for situations where the provisions on service standards and the right to compensation in the form of free time do not apply. This regulation shows that the derogation concerns: professional officers acting as commanders of military units, professional soldiers carrying out tasks of peculiar importance to the Armed Forces, soldiers performing extraordinary tasks essential to defend the interests of the State.
In the following part of the provision, the legislator identified examples of situations in which this exemption applies, including: participation in the prevention of natural disasters or method accidents, the provision of services and on-calls, the exercise and training, as well as the provision of services abroad. It should be stressed that this catalogue is open. This means that the calculation contained in the provision is only an example, not an exhaustive one.
The usage by the legislator of the word ‘in particular’ indicates the intention of including another situations which correspond to the criteria set out in the provision hypothesis, i.e. those tasks are peculiarly applicable to the Armed Forces or are of an exceptional nature and are essential to defend the interests of the State. Operation Tarcza East, carried out at the east border of the state, is an example of tasks of an extraordinary nature and at the same time peculiarly crucial to the Armed Forces. Thus, Article 275(4) of the Act is straight applicable. This means that no statutory time limits or the right to overtime compensation apply to soldiers serving under the Tartar East.
I'm presently occupying an flat with the resources of the Military Property Agency. The flat does not appear on the list of accommodations, so it is, according to regulations, a residential premises. What rights will I gotta this flat erstwhile I retire?
Pursuant to Article 23(2) of the Act of 22 June 1995 on the accommodation of the Armed Forces of the Republic of Poland, a soldier released from professional military service, residing in a housing unit which is not a dwelling, is entitled to occupy this premises. The manager of the regional branch then concludes a lease agreement for this housing facility.
It should besides be noted that, in accordance with Article 77 of the Act of 10 July 2015 on the Military Property Agency, persons occupying residential premises on the basis of a legal title established by an administrative decision or an indefinite-term lease agreement are entitled to acquisition this dwelling unless it is an accommodation or an global accommodation. The manager of the Regional Branch of the Agency shall notify the individual entitled to get the accommodation in writing of the sale of the dwelling in accordance with the yearly plan for the sale of the premises.
In the case of professional soldiers, the question of the acquisition of housing is related to the right to accommodation described in the Act on Accommodation. Therefore, if a soldier pursuant to Article 21(2) of that Act exercises his right to accommodation in the form of the assignment of a dwelling, he may rely, pursuant to Article 77 of the Act on the Agency, on the acquisition of the occupied premises in case it is included in the yearly plan for the sale of residential premises.
It should be noted that, in accordance with the AMW Act, all matters relating to the management of housing resources fall within the competence of the Directors of the Agency's regional branches. Taking this into account, in case of uncertainty and detailed questions in this area, the soldier should contact 1 of the AMW regional branches directly.
Is it possible to collect housing benefits and reimbursement of regular travel expenses at the same time?
The right of professional soldiers to accommodation, including housing benefits, is governed by the Act of 22 June 1995 on the accommodation of the Armed Forces of the Republic of Poland. The said Act sets out a list of negative conditions preventing the granting of accommodation rights, among which the collection of regular travel costs is not mentioned. Thus, the fact that specified reimbursement is utilized does not exclude the right to a residential benefit.
At the same time, the reimbursement of regular arrivals to and from the place of service shall be granted to a professional soldier under Article 291(2) of the Law of 11 March 2022 on the defence of his homeland, provided that he does not usage the demarcation allowance and resides outside the close town within the meaning of the provisions of the Act on Accommodation.
However, it should be stressed that, in accordance with Article 291 (paragraph 13(1)(c) of the Law on the Defence of Homeland, the right to reimbursement of regular travel costs is not granted to a soldier in the calendar period in which he collected a residential benefit. This means that the legislator explicitly excluded the anticipation of cumulative both benefits.
In view of the above regulations, it should be noted that a professional soldier cannot collect housing benefits and reimbursement of regular travel expenses to a military unit. In a given month, only 1 of these powers may be exercised, depending on the situation of the service and residential soldier.