STF reforça a possibilidade de terceirização e considera legais os contratos com pessoas jurídicas

Summary

This interview with labor lawyer Tomás Nina delves into the implications of Brazil's Supreme Federal Court (STF) rulings on outsourcing, particularly the controversial decision to allow outsourcing of core activities (atividade fim). It also explores the rise of 'pejotização,' where workers become self-employed through personal companies (PJ), and the ongoing debate about the employment status of gig economy workers. The discussion highlights concerns over worker vulnerability, the growing trend of precarious labor, and the potential consequences of these legal shifts, emphasizing the need for stronger protections and active union participation in defending workers' rights.

Takeaways

• 😀 The Brazilian Supreme Federal Court (STF) has confirmed the legality of outsourcing a company's core activities, which has significantly expanded the understanding of outsourcing in Brazil.
• 😀 The 2018 ruling by the STF on the unconstitutionality of prohibiting outsourcing of a company's core business was a pivotal moment in the legal landscape regarding labor laws in Brazil.
• 😀 A key distinction is made between 'core' (atividade fim) and 'secondary' (atividade meio) business activities, with the former being those directly related to the company’s main operations, and the latter being auxiliary services like cleaning or catering.
• 😀 The 2017 Labor Reform allowed more flexibility in outsourcing core activities, a move that was driven by employers seeking to reduce costs and increase efficiency.
• 😀 Despite the STF’s broad decision, there is resistance within the judicial system, especially within lower courts, where some judges continue to apply previous interpretations limiting outsourcing to secondary activities.
• 😀 A critical point of contention involves the issue of 'subordination,' where some courts examine whether a worker is sufficiently independent to be considered an outsourced contractor rather than an employee.
• 😀 The concept of 'pejotization' (transforming employees into individual entrepreneurs with their own companies) has been controversial, with the STF recognizing it as legal in certain circumstances, especially for highly skilled professionals like doctors or journalists.
• 😀 The Labor Court traditionally viewed 'pejotization' as fraudulent, but with recent STF rulings, it is now up to workers to prove that a fraudulent employer-employee relationship exists under such arrangements.
• 😀 The STF’s decisions regarding outsourcing and pejotization have led to increased legal complexity, requiring case-by-case analysis to determine whether workers are being exploited or treated as independent contractors.
• 😀 In public sector contexts, outsourcing of core activities is generally not allowed due to the requirement of public competitions for employment, but exceptions may exist for temporary hiring in specific cases like health crises or emergencies.

Q & A

What is the central issue discussed in the interview regarding labor law in Brazil?

The interview primarily discusses the Supreme Federal Court's (STF) rulings on outsourcing in Brazil, specifically the outsourcing of core activities ('atividade fim') and the practice of 'pejotização' (turning workers into independent contractors through their own companies).

What is the difference between 'atividade fim' and 'atividade meio' as explained in the interview?

'Atividade fim' refers to the core or main activities of a company, such as manufacturing cars in an automotive factory. 'Atividade meio' refers to supportive activities that are not central to the business, like janitorial work or administrative support.

How did the 2018 Supreme Federal Court (STF) decision impact the outsourcing of core activities?

The STF's 2018 ruling confirmed the constitutionality of outsourcing not only for auxiliary activities ('atividade meio') but also for core business functions ('atividade fim'). This expanded the scope of outsourcing, allowing companies to outsource their main activities.

Why has the 2018 STF decision been controversial within the labor courts?

The decision was controversial because it went against previous rulings and a longstanding stance in labor law, where only auxiliary activities could be outsourced. Some judges in lower courts have resisted this broad interpretation, leading to inconsistent application of the ruling.

What is 'pejotização', and how has it been addressed by the STF?

'Pejotização' refers to the practice where workers create their own companies (e.g., doctors, journalists, or engineers) and contract themselves as service providers. The STF has validated this practice for certain professionals, acknowledging it as a legitimate form of outsourcing when the worker is considered an 'hipersuficiente' (a highly skilled worker with a higher income and greater negotiating power).

What does 'hipersuficiente' mean, and why is it relevant to 'pejotização'?

'Hipersuficiente' refers to highly skilled individuals who earn high salaries (above R$12,000), and are considered capable of negotiating their own terms directly with companies. This status is key to legitimizing 'pejotização' in the STF's view, as these individuals are seen as less vulnerable to exploitation.

How has the STF's stance on outsourcing impacted workers' rights?

While the STF's rulings have expanded outsourcing, they have also raised concerns about workers' rights, particularly as many workers in outsourced or 'pejotizado' arrangements are more vulnerable and may lack the same protections as traditional employees. Critics argue that these decisions have weakened labor protections.

What role do labor unions play in the context of increased outsourcing and 'pejotização'?

Labor unions are crucial in advocating for workers' rights in the face of increased outsourcing and 'pejotização'. The interview suggests that unions need to be more proactive in defending workers against potential exploitation and ensuring fair conditions, as many workers are now in more precarious situations.

What is the legal challenge posed by 'pejotização' in the context of the Brazilian justice system?

The legal challenge lies in determining whether 'pejotização' constitutes a fraudulent attempt to avoid labor law protections. In lower courts, judges are required to analyze specific cases to determine whether workers were coerced into forming companies and whether they were still effectively employees under the law.

What is the potential impact of the STF's decision on outsourcing for public sector jobs?

The STF's decision on outsourcing does not apply to the public sector, where hiring is generally done through public competitions or temporary contracts. Public companies and government agencies cannot outsource core activities unless allowed by specific legal exceptions, such as for temporary needs during emergencies.