Heloisa de Alencar Santos
Lawyer at Marcos Martins Advogados
On Tuesday, June 16, 2020, the Federal Supreme Court ruled that the outsourcing law (Law 13.429/17) was constitutionalby 7 votes to 4.
A much-discussed issue in the labor sphere is the question of liability and the employment relationship between the contractor and the contractor’s employees, and whether the employment relationship exists with the borrower or remains solely with the employer.
With this most recent decision, outsourcing of a company’s core activities becomes legitimate, with the contracted company being responsible for its employees, i.e. when a company is hired to provide an outsourced service, only it will be liable for the labor rights inherent in its employee, with the responsibility of the borrowing company being subsidiary.
In this way, the outsourcing of any and all activities, whether middle or end, becomes lawful, ruling out the configuration of an employment relationship between the service taker and the outsourced employee, removing the understanding of the then current Precedent 331 of the Superior Labor Court.
Precedent 331 of the Superior Court of Justice stated that it was illegal to hire workers through an intermediary company, which ended up forming the relationship directly with the service provider, with the exception of cases in which the employment contract was temporary.
Intermediate activities are considered to be those that are not essential to the company, or those whose purpose is to support the main activities contained in its corporate objectives. In this way, the main activities will always be described in the object clause of the company’s articles of association and are therefore the core activities.
What happens is that before Law 13.429/17 was ruled constitutional, it was only possible to outsource this middle activity, for example, in a furniture industry the end activity is industrialization, and the middle activities are cleaning, surveillance, machine maintenance, etc.
The process of outsourcing is therefore understood to be nothing more than hiring a company as an intermediary between the service provider and the workforce, through a contract for the provision of services. The employment relationship is between the worker and the company that provides the services, and not directly with the contractor.
The contract for the provision of outsourced services must be in writing and contain the names of the parties, the reason justifying the demand for temporary work, the term for the provision of services, the value and provisions on the health and safety of the worker, regardless of where the work is carried out.
Since the Supreme Court ruled that Law 13.429/17 was constitutional, there is no longer the risk that previously existed in hiring through an outsourced company, especially labor risks, in its operation, risks that were basically related to the characterization of a direct employment relationship between the service taker and the employees of the respective service provider, subsidiary liability for labor obligations defaulted on by the third party, and even joint and several liability for labor charges. (HERMES, 2001)[1].
However, if fraud is proven, the link with the borrower can be recognized. Therefore, there has only been a change in relation to the scope of the possibility of outsourcing, which is not restricted to middle activities and thus removes the understanding of Precedent 331 of the Superior Labor Court.
The service provided must be specific and determined, and the company providing the services must hire, pay and manage the work carried out by its workers, or subcontract other companies to carry out these services.
In the case of the provision of services by third parties, the end activity, i.e. the object of the contract, is the transfer by the contracting party of the services being contracted and for which the company providing the service may use its own workers or act individually in a contractual relationship for the purpose of providing services in any activity, whether intermediate or final, and the provider must have the economic capacity compatible with its execution.
The contract for the provision of services, the object of which is a middle or main activity, can specifically comply with the parameters of the law. However, under no circumstances can the employment relationship place the worker of the outsourced service provider under the command and subordination of the borrower.
Finally, it is important to stress that the owner of the services, who expects the services to be completed by the company providing the services, is not the contractor, but the contracted company, i.e. the outsourcer, regardless of whether they are carried out by its own employees or not, bringing various advantages to the companies providing the services, such as using specialists at all stages of the process, reducing operating costs, prioritizing investments and optimizing the time of professionals.
Any questions? Talk to our lawyers and get advice.
[1] HERMES. Outsourcing and the legal and labor risks of service contracts. Justiça do Trabalho, Porto Alegre, v.18 n. 216, p.25-36, dec. 2001.
