Zuleika Hajli
Lawyer at Marcos Martins Advogados
Outsourcing is now a reality in labor relations and is therefore widely used in Brazil by both private companies and the Public Administration itself.
There are many definitions of outsourcing of services. For Alice Monteiro de Barros, outsourcing is a phenomenon “that consists of transferring activities considered secondary, or support activities, more properly called middle activities, to others, with the company dedicating itself to its main activity, that is, its core business.” (BARROS apud MORAES, 2003, p. 67)[1].
Sergio Pinto Martins, on the other hand, teaches that outsourcing is the “possibility of hiring third parties to carry out the company’s middle activities, i.e. those activities that do not constitute its main purpose, its essential activity.”[2]
In order to make up for the lack of legislation on the subject, which has only now been the subject of countless negotiations, ultimately resulting in Law 13.429/2017 (PL 4302/1998), the Superior Labor Court has built its understanding through case law, solidified in Precedent 331, which, however, has always been criticized for not having clear concepts, for limiting the principle of free enterprise, as well as for not extending social rights to outsourced employees.
The TST’s intention in issuing the aforementioned Precedent 331 was to bring some order and calm social anxieties as a result of an irreversible process: outsourcing.
However, one of the main criticisms of the Precedent was the creation of a classification between activities by dividing them into lawful (thus considered the middle activities) and unlawful (thus considered the end activities), which has always generated conflicting understandings due to the lack of a clear and legal definition of which activities can be outsourced due to the fragility and subjectivity of the concept, which confuses agents and legal operators, causing legal uncertainty and conflicts of interpretation.
With the regulation of outsourcing by ordinary law, regardless of whether you are for or against it, the fact is that clear and protective rules have been laid down for the relationships and parties involved.
The state has fulfilled its role of valuing economic activity and observing the standards of protection guaranteed to workers without, however, assuming that all negotiation and subcontracting is fraudulent, otherwise the principle of good faith will be undermined.
With the new law, the main characteristics of the contracting of services, including outsourcing, are as follows:
a. The new law only deals with companies that provide services and does not deal with the hiring of individuals (who continue to be subject to the general rules of the CLT, sparse legislation and case law).
b. The services contracted must be determined and specific. Generic contracts and those aimed solely at labor intermediation remain prohibited.
c. The company providing the services hires, pays and directs the work of its workers. Although hiring is apparently allowed in any activity of the borrower, the employees of the service provider cannot be subordinate to the contracting company. Thus, the new law changes where (any activity) outsourcing can take place, but it does not change how (without subordination) the process of hiring service providers should be carried out.
d. The company providing the services can subcontract the performance of the activities contracted with the main contractor.
e. There is no employment relationship between the employees or partners of the service provider and the service taker. It would appear that this provision allows service providers to be hired for any of the borrower’s activities, including those that could be considered main or final activities.
f. The activities of the service provider’s workers must be carried out within the limits of those which were the subject of the service contract, and deviation of functions is prohibited in these cases.
g. The contracted services may be carried out at the contractor’s premises or at another location defined by the parties.
h. The contracting company must guarantee hygiene, safety and health conditions for the outsourced company’s workers, when the work is carried out on its premises or at a location previously defined in the contract.
i. The company taking over the services may extend the same medical, outpatient and meal services to the workers of the company providing the services as it does to its own employees.
j. The contracting company is subsidiarily liable for labor obligations for the period corresponding to the provision of services and social security payments must comply with the provisions of article 31 of Law No. 8.212/1991 (withholding of 11% of the value of the invoice).
Marcos Martins Advogados is always attentive to changes in the law and to case law in labor matters, maintaining its commitment to excellence in the provision of legal services to its clients by providing appropriate responses that are perfectly in line with the current interpretation of the law.
[1] MORAES, Paulo Douglas Almeida de. Indirect contracting and outsourcing of services in the core business of legal entities: legal possibility and social convenience. 2003. Available at:<www.mte.gov.br/delegacias/ms/ms_monografia.pdf>. Accessed on: Aug. 18, 2017.
[2] MARTINS, Sérgio Pinto. Terceirização e o direito do trabalho. 3rd ed. São Paulo: Malheiros, 1997.
