Sibele de Oliveira Pimenta
Lawyer at Marcos Martins Advogados
Law No. 13,429/2017, known as the labor outsourcing law, was sanctioned in March 2017. Until then, the issue of outsourcing followed the guidelines of Precedent 331 of the TST, which prohibited outsourcing of core activities, authorizing only the outsourcing of core activities, under penalty of recognition of a direct employment relationship with the borrower. The main change brought about by Law 13.429/217 was the expansion of outsourcing, authorizing the outsourcing of core activities as well, which, by expanding the possibilities for outsourcing, aimed to reduce the current unemployment rates in the country.
However, the expansion of outsourcing does not remove or reduce the labor rights guaranteed to workers, and the discussion about fraud and labor intermediation is part of the legal world. For this reason, the employer must always be vigilant and cannot, as the borrower, take immediate and direct control of the provision of services by third-party employees, under penalty of recognizing an employment relationship between the employee and the borrower of the services.
But that’s not all. When the third-party employee carries out an activity that is part of the company’s organizational structure and dynamics, an activity that is linked to the borrower’s core activities, regardless of whether they receive direct orders or not, and the worker is objectively inserted in the essence of the business activity, this is structural subordination, which attracts a direct employment relationship with the borrower.
But what is structural subordination? In the words of jurist Rocheli Margota Kunzel:
- The “theory” of structural subordination is defended in Brazil by professor and STF Justice Maurício Godinho Delgado, who admits the expansion of the concept of subordination, proposing that its point of identification is the structural insertion of the worker in the dynamics of the company that takes over the services. The author presents the concept of structural subordination in the following terms: “Structural subordination is, finally, the subordination that is expressed by the insertion of the worker in the dynamics of the company that takes over his services, regardless of whether or not he receives his direct orders, but structurally welcoming his organizational and operational dynamics. (DELGADO, 2011, p. 294).”[1]
In other words, it is the exercise of an activity that is part of the production process and the structural dynamics of the company’s or service provider’s operation, and today the issue of subordination as a requirement for recognizing an employment relationship is much broader.
Therefore, when outsourcing any service, even if it complies with labor legislation, the borrower must be diligent about the suitability of the company providing the service and the regular payment of labor rights, because otherwise it will be liable for the debts incurred by the company providing the service, even if in a subsidiary capacity, because in the Labor Court it is unacceptable for the employee, the weak party in the relationship, not to receive payment of wages, severance pay and compensation.
Clauses giving the service provider full responsibility for labor rights are null and void in the case of illegal outsourcing, implying the formation of an employment relationship with the service provider. Because what matters, according to the principle of the primacy of reality that governs labor relations, is what actually happens in the factual world.
Structural subordination has not replaced classic subordination, but it has solved some of the illicit outsourcing, and Law 13.429/217, by expanding outsourcing, was not intended to free entrepreneurs from labor charges. However, they must take care and monitor the service providers in order to ensure that the outsourced worker gets a decent job.
So, even though the Outsourcing Law allowed outsourced workers to be hired for the core business, in total contravention of the provisions of the then current Precedent 331 of the TST, it is necessary to consider that labor law has always been concerned with factual reality, i.e. what is agreed and formally contracted does not prevail in relation to the real truth.
In this context, the outsourcing of any type of activity, be it middle or end, is currently legal, however, the Labor Reform in no way extinguished the employment relationship, and if there is legal subordination, the employment relationship will prevail over the formal contract, and the search for cheaper labor cannot in any way harm the dignity of the worker and suppress labor rights.
In order to resolve this impasse and avoid labor litigation, the entrepreneur must be diligent not only when hiring the third-party company, but especially when directing the activities of the third-party contractor. In other words, not directing direct or indirect orders, but effectively controlling the workforce and the activity performed, is not enough to rule out unemployment, since, as has been said, subordination today is not only subject to control of the person, but also the activity performed by the worker. Following this line of reasoning, subordination has become more tenuous. If the third party has to adapt to the company’s activities, the worker will be part of the company’s operational dynamics, and structurally subordinate to the core of the business activity, thus establishing the employment relationship.
By analyzing these concepts, and considering that subordination is the first limit to lawful outsourcing, the labor team at Marcos Martins can help entrepreneurs with outsourcing services.
[1] KUNZEL, Rocheli Margota. A
structural subordination as a defining element of current employment relationships. Jus Navigandi
Jus Navigandi, ISSN 1518-4862, Teresina, ano 18, n. 3622, 1 jun. 2013. Available at: <https://jus.com.br/artigos/24593>. Accessed on: May 9, 2019.
