Terceirização (Direito do Trabalho): Resumo Completo

Summary

This transcript discusses the legal framework and changes surrounding outsourcing in Brazilian labor law, particularly following the 2017 labor reform and rulings by the Supreme Federal Court. It explains the different types of legitimate outsourcing, such as common outsourcing, temporary contracts, and subcontracting. The script delves into the conditions for lawful outsourcing, the responsibility of the contracting company, and the impact of the reform, highlighting both the benefits and legal obligations. Additionally, it covers outsourcing in the public sector, including restrictions and liability issues in both public and private contracts.

Takeaways

• 😀 The outsourcing concept in labor law has evolved due to legislative changes and decisions from the Supreme Federal Court (STF).
• 😀 The parties involved in outsourcing include the employee of the service provider, the service provider company, and the service recipient.
• 😀 Types of legitimate outsourcing include regular outsourcing, temporary contracts, and subcontracting.
• 😀 Before Law 13.427, the TST allowed outsourcing only for secondary activities, with exceptions for temporary work.
• 😀 The STF ruling in ADPF 324 legalized the outsourcing of both core and secondary activities, establishing that no employment relationship exists between the service recipient and the outsourced employee.
• 😀 Law 13.467 (Reform of Labor Laws) and STF rulings have expanded the possibilities of outsourcing to include primary activities.
• 😀 According to Law 6019, service outsourcing can now include the primary activities of the company, and the relationship with the contracted employees is not considered an employment relationship.
• 😀 The company outsourcing services is responsible for meeting certain requirements, including registration with the CNPJ and minimum capital based on the number of employees.
• 😀 The service recipient company can be held subsidiarily responsible for labor debts if the service provider defaults, as established in the TST's Sumula 331.
• 😀 Public sector outsourcing is restricted, and workers employed through outsourced companies in the public sector are entitled to the same benefits as public sector employees, provided their roles are similar.
• 😀 The outsourcing of services in the federal public administration is limited by Decree 9507/18, which outlines specific exclusions for essential government functions.

Q & A

What is the concept of 'terceirização' in Brazilian labor law?

In Brazilian labor law, 'terceirização' refers to outsourcing services, where a company hires an external service provider to perform specific tasks or activities. The law defines roles for three key parties: the employee of the service provider, the service provider itself, and the company receiving the service.

How did the Brazilian Supreme Federal Court (STF) impact the concept of outsourcing?

The STF played a crucial role in expanding the scope of outsourcing. In the ADPF 324 and Tema 725 rulings, the STF determined that outsourcing is legal not only for secondary activities ('meio') but also for core business activities ('fim'), without creating an employment relationship between the contracting company and the outsourced employees.

What was the previous understanding regarding outsourcing before the STF's rulings?

Before the STF's rulings, Brazilian labor law allowed outsourcing only for 'secondary activities' or 'support activities' (activities that are not central to the core business). The outsourcing of core activities ('fim') was considered illegal.

What changes did the 2017 Labor Reform (Lei 13.467) bring to outsourcing regulations?

The 2017 Labor Reform (Lei 13.467) legalized outsourcing for both core and peripheral activities. The reform expanded the possibility of outsourcing by allowing businesses to outsource their core functions, which was previously prohibited, and introduced provisions to regulate this practice more clearly.

What are the key responsibilities of the contracting company in outsourcing agreements?

The contracting company is subsidiarily responsible for ensuring that the service provider complies with labor obligations. If the service provider fails to meet its obligations, the contracting company can be held accountable for the unpaid wages or benefits, as defined by previous TST rulings and updated legislation.

What does 'subsidiary responsibility' mean in the context of outsourcing?

In the context of outsourcing, 'subsidiary responsibility' means that if the service provider fails to meet its labor obligations, the contracting company may be held liable for those obligations. However, this responsibility is only triggered when the contracting company has been involved in the legal process related to those debts.

What does the Law 6.019 (amended by the 2017 reform) say about the nature of the contracting company in an outsourcing arrangement?

Law 6.019 defines the contracting company as either a physical or legal entity that enters into a contract with an outsourcing service provider for any of its activities, including core activities. The law requires that the service provider be economically capable and ensures that no employment relationship is formed between the contracting company and the service provider's employees.

How does outsourcing impact workers' rights and working conditions?

Outsourced workers are entitled to the same rights as directly employed workers in certain circumstances. For example, if the outsourced workers are performing services in the contracting company's facilities, they should have access to similar benefits such as meals, medical services, and proper working conditions.

What are some requirements for companies providing outsourced services under the updated law?

Under the updated law, companies providing outsourced services must meet several requirements, including registration with the National Register of Legal Entities (CNPJ), registration with the commercial registry, and having sufficient capital based on the number of employees. The law also prohibits fraudulent practices such as re-hiring employees who were previously dismissed to circumvent labor protections.

What restrictions exist regarding the outsourcing of services in the public sector?

In the public sector, outsourcing is regulated by specific rules that prevent the outsourcing of activities involving decision-making, supervision, strategic functions, or those related to the exercise of government powers such as law enforcement or service regulation. Additionally, the contracting of outsourced labor does not generate an employment relationship with the public administration unless the worker undergoes a public competition.