The TST (Higher Labor Court) will decide whether, in cases where outsourcing fraud is proven, the outsourced worker is entitled to an employment relationship with the company providing the service. The trial is scheduled to take place this Tuesday (16), from 2:30 p.m.
Ministers are to take a stand in a case involving a telemarketing operator who was fired and, a day later, rehired to provide the same services to the company – a telephone company – but this time through a third party.
The decision must detail in which cases hiring fraud will cause the company that outsourced the service to have to register the employee and pay the rights provided for by the CLT (Consolidation of Labor Laws), such as overtime, FGTS (Service Time Guarantee Fund), 13th salary and vacation, among others.
The case analyzed dates from 2006, when the Labor Council still understood that outsourcing could only take place in the case of the company’s secondary activities and never for the main activity. This rule changed in 2017, with the approval of the Outsourcing Law.
The new legislation now allows outsourcing in all cases, including the main activity. In 2018, the STF (Federal Supreme Court) ruled that the possibility of outsourcing the main activity of the company was constitutional, provided that subsidiary liability is maintained, that is to say that, in certain cases, it is the service provider who will assume the obligations of the outsourced company, such as for example the remuneration of employees.
In theory, according to lawyer Bruno Freire, professor of procedural labor law at Uerj (University of Rio de Janeiro) and the Brazilian Academy of Labor Law, the decision taken by the STF allows the company to fire employees and hire them as outsourced workers. However, the Supreme Court’s decision did not elaborate on this explanation.
“If we interpret the precedent of the Supreme Court, companies can do it, but if the TST understands that it is a fraud, they want to create a precedent to deal with these situations and when this fraud leads to the recognition of the employment relationship of the outsourced (worker) with the borrowing company.”
According to the lawyer, the Supreme Court did not fail to recognize that there could be fraud in this type of contract, but the legal consequence defined by the ministers is different.
“The Federal Court does not turn a blind eye to hypotheses of fraud, but the legal consequence that it brings in its precedents is that there is a subsidiary responsibility of the company which provides the service and not a recognition of an employment relationship.”
Freire, who represents Fenaban (National Federation of Banks), says companies fear the decision will reverse what has already been defined regarding outsourcing. “Our concern is that it is too broad and that the TST goes beyond the confines of this case to define situations of alleged fraud that would not be covered by this case,” he says.
“It would have the opposite effect: instead of providing legal certainty, it could bring insecurity, because it concerns very general assumptions.”
The case will be tried under Theme 29 as a repetitive appeal, meaning whatever is decided will be applied to other such trials in the country. Even after the TST’s decision, the company can approach the Supreme Court if it does not agree with what has been defined.
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