In accordance to the Act of 11 March 2022 on Homeland Defence (Journal of Laws of 2022, item 655), (hereinafter referred to as the "Act"), the defence duty is imposed on Polish citizens who are capable, according to their age and state of health, of performing it. The basic way of fulfilling this obligation is to perform military service which is divided into active military service and service in the reserve. Polish citizens are obliged to perform military service from the date on which they turn 18 until the end of the calendar year in which they turn 60 (in the case of non-commissioned and commissioned officers – at the age of 63). Persons recognised as permanently unfit for this service for reasons of health are not subject to this obligation. According to the explanatory memorandum to the Act, the new regulations transfer the emphasis from compulsory basic military service to voluntary forms of performing military service or performing non-professional military service, and assume a significant increase in the number of soldiers. In this edition of the newsletter, we would like to highlight a number of aspects of the new provisions that have potential relevance for employers.
Employer access to military records
In place of the previous military administration bodies, tasks concerning national defence and cooperation with other bodies and entities, in particular in the field of recruitment and the acquisition of new soldiers, will be performed by the Central Recruitment Centre and local military recruitment centres which have replaced provincial military staffs. They will be obliged, among other duties, to contact employers, including notifying them of their employee's appointment to active military service, and providing them with access to the personal data of employees collected in military records in terms of their appropriateness for their defence duty and the type and date of fulfilment of said duty.
Compulsory appearance for military qualification
One of the elements of the defence duty is to appear, upon the summons of the head of the military recruitment centre, for military qualification which is aimed at entering the data of the person summoned to the military register and determining their capacity to perform military service. As a result of the actions carried out by the medical board, the head of a commune, the mayor or president of a city, and the head of the military recruitment centre, the person summoned to the qualification will be entered in the military register, receive a certificate confirming their appearance for military qualification, their regulated relationship to military service, and their capacity to perform it.
Reimbursement of expenses by the requesting authority
The employee who has been summoned by the recruitment centre to appear in person and is not paid for the time spent not working for the above reason can request a payment of a flat-rate compensation for their lost earnings. This compensation is set at 1/30 of the minimum wage for each day of lost earnings and should be paid by the authority summoning the employee for qualification, based on a certificate issued by the employer. The person summoned can also claim for the reimbursement of any travel expenses on the basis of a documented statement, according to the rules set out in the Act on Court Costs in Civil Cases.
Incentives for employees to perform voluntary basic military service
The Act introduced a new type of active military service - voluntary basic military service. This service will be the first stage in applying for the appointment to other forms of military service, including professional military service. Its duration is up to 12 months (28 days of basic training and 11 months of specialist training). An incentive to attend the voluntary basic military service will be a remuneration in the amount of the lowest basic salary of a professional soldier, i.e. PLN 4,560 gross in accordance with the Ordinance of the Minister of Defence of 28 March 2022, the inclusion of the period of voluntary service in the period of employment, and a guarantee of employment by the existing employer, as mentioned below. The Act also stipulates that a person who has performed voluntary basic military service with special commitment can receive an appointment to a full-time position in the professional military service. In addition, these persons are supposed to enjoy priority in employment in public administration offices. The head of the military recruitment centre is obliged to inform the employer about the appointment of a given employee to active military service (which includes basic and territorial military service, service in the active reserve, and taking part in military exercises as part of the passive reserve).
Duty and training schedule
In addition, a territorial defence soldier or a soldier serving in the active reserve is supposed to inform their employer about their appointment or the date of their military service, as well as any changes to these terms. In the case of an application for an immediate appearance, the obligation to inform the employer has been shifted to the commander of the military unit in which the soldier serves. Furthermore, before the start of the next training period, but no later than six months before the expected date of referral to a specialised course or training, conducted within the framework of territorial military service performed on a rotational basis, the commander of the military unit in which the soldier serves informs the soldier about the possibility of referral to this course or training. The employee-soldier is obliged to provide this information to their employer.
Time off from work and unpaid leave
The Act provides for the release of the employee summoned for military qualification from work, for the time of their appearance before the commission and with the retention of the right to remuneration. On the other hand, the employee appointed to active military service (excluding professional service) and employees performing service in the reserve are entitled to submit a motion to their employer for an additional release from work of two days without retaining the right to remuneration. The employee performing territorial military service on a rotational basis for a continuous period of 30 days is also entitled to apply for time off from work amounting to one day without retaining the right to remuneration. In the above-mentioned cases, the employer is obliged to accept the employee's motion and release them from work. The Act stipulates that the release of the employee with the retention of the right to remuneration can take place at the employer's expense. Soldiers performing territorial military service on rotation can apply for compensation for lost remuneration from the employment relationship. The amount of the daily allowance cannot be higher than 1/22 of two and a half times the average monthly remuneration in the enterprise sector, which is currently approximately PLN 720.
According to the Act, a person undergoing a 12-month training in voluntary basic military service, as well as a person called up for territorial military service in rotation, is entitled to unpaid leave for the duration of this service.
Employment protection
The Act introduces employment protection for persons appointed to basic or territorial military service. The employment relationship with these persons can only be terminated with the consent of the employee. The protection does not apply to employees hired for a probationary period or for a fixed term not greater than 12 months. During the protection period, i.e. from the moment of the appointment to service until its termination, the employer retains the right to terminate the employment contract without notice due to the fault of the employee, as well as to terminate the employment contract in the event of the declaration of bankruptcy or the liquidation of the employer. Moreover, if, prior to the appointment of the employee to the service, the employment contract was terminated, either by the employee or the employer, and the period of notice was to expire after the date of the employee's appointment to the service, the termination becomes ineffective. In this situation, the termination of the employment relationship can only take place upon the request of the employee. Consequently, if the employer wishes to terminate the employment relationship with the employee after the end of the military service, the employer will have to terminate the employment contract again and, in the case of contracts for an indefinite term, update the reasons for the termination.
Similar protection will be afforded to a person who has been granted unpaid leave by their employer in connection with the 12 months' training as part of their voluntary basic military service, except that the protection for such a person will also extend for a period of 12 months following the end of the training. The above mentioned prohibition of termination of contracts does not apply to contracts for a probationary period or for a fixed term not greater than 24 months.
In the case of compulsory basic military service, employment protection also extends to the spouse of the soldier and lasts for the duration of the compulsory service. During the period of protection the termination of an employment contract with the spouse of a soldier in compulsory service can only take place without notice due to the fault of the employee, or in the event of the announcement of bankruptcy or the liquidation of the workplace.
Obligation to employ the employee after their release from compulsory service
An employee who has completed their compulsory basic military service and has reported to the employer within 30 days to resume work will have guaranteed employment in their previously occupied position or a position equivalent in terms of type of work and remuneration. If the employee does not comply with the 30-day limit, the employment relationship expires, unless it was caused by reasons justifying the absence from work. If, during the military service, the employee has acquired higher qualifications, the employer is obliged, upon the request of the employee, to employ him or her in a position that corresponds to their newly acquired qualifications, if possible.
Seniority
The Act states that the time spent performing military service is to be counted as part of the period of employment with the employer and is to be taken into account in determining all of the rights arising from the employment relationship, provided that the employee, within 30 days from the date of their release from active military service (excluding professional military service and basic military service) has resumed employment with the employer with whom he or she was employed as of the date of their appointment to such service.
Cash benefits for the employer - compensation for costs
An employer who hires an employee who is a reservist or the territorial defence soldier performing military service on a rotational basis can apply for a reimbursement of expenses - compensation for employing an employee as a substitute, or entrusting the substitution to another employee employed at the workplace. Reimbursable expenses incurred include, but are not limited to:
- The training of the employee who will act as a substitute;
- Fees associated with carrying out the tests required for the position;
- Work clothing and footwear, if required for the position;
- The provision of all necessary insurances related to the occupation;
- The amount of the one-off severance pay paid to the territorial defence soldier in the amount of two weeks' pay calculated in accordance with the rules for determining the equivalent for annual leave.
The above cash benefit to the employer does not include the salary of an employee replacing the reservist or the territorial defence soldier.
Reimbursement is made upon the request of the employer submitted to the head of the military recruitment centre (competent for the employer's registered office) together with documents confirming the expenses incurred, no later than within 90 days from the date of release of the reservist or territorial defence soldier performing military service on a rotational basis. The Act stipulates that the amount of the benefit for the employer for each day of service by its employee – soldier, cannot be higher than 1/22 of two and a half times the average monthly salary in the enterprise sector.
The amount of the allowance will be determined each time respectively for the time of territorial military service performed in rotation or for the number days of service in the reserve – for a given month of its performance.
Next steps
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Authored by Marek Wroniak, Agnieszka Szczodra-Hajduk, Paulina Przewoźnik-Lewiński, and Karolina Dębiec.
