Since Law 13.249/2017, which deals with temporary work and the provision of outsourced services in companies, the issue has generated controversy in the courts. The fact is that hiring outsourced services is permitted by law, but can be confused with what is known as “pejotização”, or the fraudulent hiring of service providers through a Legal Entity (PJ).
Sometimes, this type of contracting, which presupposes an agreement between the two parties and is not governed by the Consolidated Labor Laws (CLT), is a way for the company to avoid paying taxes and labor charges.
For a PJ contract to be considered illegal, the employment relationship must be proven. According to articles 2 and 3 of the CLT, it is enough to have subordination (submission to the employer’s directives), non-occasionality (continuity in the provision of services), onerousness (receipt of remuneration), personality (prohibition on the employer replacing the employee in the provision of services) and alterity (this criterion is not always considered, but it is the fact that the employer assumes the risks arising from his business).
We have often noticed a difference in interpretation between the Federal Supreme Court (STF) and the Labor Court in various cases brought before the country’s highest court. The STF has reversed Labor Court decisions recognizing the employment relationship, understanding that outsourcing is feasible, without going into the merits of the fraud recognized by the Labor Court, especially due to formal technical issues.
The line between the two cases is sometimes blurred and causes discussion in the legal sector. Even Minister Flávio Dino recently spoke out, saying that pejotização is potentially fraudulent and can be a threat to workers’ rights and tax collection. The concern here is with the violation of the principle of worker dignity and fundamental labor rights.
An FGV survey reveals that, from January to August 2023, 43% of the decisions handed down by the STF in the judgment of constitutional complaints allowed the outsourcing of core activities and 21% allowed pejotização.
It is worth remembering that there are risks in hiring professionals through legal entities, since once all the elements of an employment relationship have been established, especially that of subordination, the Labor Courts will consider the hiring to be fraudulent.
This discussion becomes even more relevant with the growth of digital service platforms, such as those for the transportation of people and goods. With the modernization of labour relations, new arrangements emerge every day that are not provided for in the legislation. It is therefore quite possible for laws to be revised to take account of market developments
