Luara Zanfolin Frasson de Rezende
Lawyer at Marcos Martins Advogados
Article 4-A of Law 6.019/1974¹ , which regulates the outsourcing of labor, states the following:
Art. 4-A. The provision of services to third parties is considered to be the transfer by the contracting party of the execution of any of its activities, including its main activity, to a legal entity under private law providing services that has the economic capacity to carry them out.
Thus, with the change brought about by Law 13.429² of 2017, it is now possible to outsource any activity of the company, including its core business, and it is also forbidden to recognize an employment relationship between the workers or partners of the companies and the service taker, according to paragraph 2:
§ Paragraph 2 No employment relationship shall be established between workers or partners of companies providing services, whatever their branch, and the contracting company.
It is important to clarify that, under the terms of Article 5-C of Law 6.019/1974, a legal entity that has provided services as an employee or worker without an employment relationship in the last 18 (eighteen) months cannot be included as a contractor:
Art. 5o-C. A legal entity whose owners or partners have, in the last eighteen months, provided services to the contractor in the capacity of an employee or worker with no employment relationship may not be included as a contractor, under the terms of Article 4-A of this Law, unless said owners or partners are retired.
However, although the change in legislation was made in order to boost the job market, with a more specialized workforce among other issues, there was no change in Article 3 of the Consolidation of Labour Laws, which lists the formal requirements for establishing an employment relationship:
Art. 3 – Any natural person who provides services of a non-occasional nature to an employer, under the employer’s dependence and for a salary, is considered an employee.
Thus, our understanding is that if the service provider meets the requirements of the aforementioned article, which are: providing services on a regular basis, receiving a salary, without being able to be replaced by another worker and through subordination – which means that they have their work directed by the employer, then hiring in a form other than the statutory form will be considered fraud.
Thus, even with the change in labor legislation, this type of hiring still poses a risk to the company, in the event of a lawsuit or inspection by the Ministry of Labor and Employment, to the extent that magistrates, lawyers and other legal operators have taken the position that even with the change in legislation, “pejotização” has not been released and continues to be a practice aimed at defrauding an employment relationship.
Thus, even if there is a provision for hiring a legal entity to carry out the company’s core business, it will be necessary to wait for the labor judiciary’s position to see how the case law will be consolidated.
Marcos Martins Advogados is always attentive to changes in the law and to case law in labor matters, maintaining its commitment to excellence in providing legal services to its clients by providing appropriate responses that are perfectly in line with the current interpretation of the law.
¹BRASIL. Law No. 6.019/1974, of January 3, 1974. Temporary Work in Urban Companies, and other Provisions, Brasília, DF, Jan 1974.
²BRASIL. Law No. 13.467/2017, of July 13, 2017. Consolidation of Labor Laws (CLT), Brasília, DF, Jul 2017.
