Jayme Petra de Mello Neto
Lawyer at Marcos Martins Advogados
In a unanimous decision, the 4th Panel of the Superior Labor Court exempted the franchisor of a company from paying the labor debts of a franchisee, on the grounds that the existence of a franchise contract does not transfer to the franchisor the subsidiary liability for labor obligations breached by the franchisee, except for distortion of the contract or fraud.
The Regional Labor Court of the 9th Region had condemned the franchising company, basing its decision on Precedent 331, IV of the TST, supporting the understanding that there was an excessive and unusual interference by the franchisor in the activities of the franchisee. Thus, for the TRT, the situation was equivalent to outsourcing the sale of products and an intermediary employment relationship.
However, the Rapporteur of the 4th Panel of the Superior Labor Court, Justice Alexandre Ramos, considered that the situation considered by the TRT of periodic visits by supervisors, consultants and auditors, as well as the obligation to enroll the franchisee’s employees in training programs, stem from contractual obligations, that is, they correspond to the nature of the company franchise contract, not demonstrating the effective direct interference of the franchisor in the franchisee’s business, in order to characterize the distortion of the franchise contract.
The Rapporteur also pointed out that due to the specific characteristics set out in the law, the regular franchise contract cannot be confused with the outsourcing of services contract, since in the latter, the service taker benefits directly from the provider’s employees. He also explained that the object of the franchise relationship is not a simple association of labor, but rather the assignment of the right to use a patent or trademark which, as a rule, are part of the franchisor’s core business.
Thus, the precedent of the Superior Labor Court is that, with the exceptions of fraud or distortion of the franchise agreement, the franchising company cannot be held liable for the labor debts of the franchisee.
