Twenty-five days after the release of outsourcing for core activities, the 5th Panel of the Superior Labor Court (TST) analyzed, on 9/25, a case before the Court on the subject and, unanimously, dismissed the claim of an employment relationship – relating to an employee of an outsourced company.
An article by Conjur shows that in the case analyzed, the Regional Labor Court of the 4th Region (TRT-4), in Rio Grande do Sul, had decided that the hiring of workers through an intermediary company is illegal and recognized the employment relationship directly with the company taking the services.
See also:
Article – STF approves the outsourcing of core activities in companies
An employee of Conecta Empreendimentos Ltda had an employment relationship recognized with another company by virtue of the application of Item I of Precedent (Súmula) 331 of the TST. The company appealed on the basis of the Federal Constitution and the current understanding of the STF.
In the judgment on Wednesday, the 25th, the Fifth Panel of the TST overturned the previous decision of the TRT-4 upon analyzing the appeal. “It is a lawful decision even without the ruling having been published. The decision, then, is to change the traditional understanding that outsourcing constituted fraud,” said the reporting justice, Justice Breno Medeiros. The three justices of the panel, Emmanoel Pereira and Douglas Alencar Rodrigues, followed the understanding of the Supreme Court in the decision.
Employee of an outsourced company – supreme decision
In August, by 7 votes to 4, the Plenary of the Federal Supreme Court (STF) declared constitutional the outsourcing of services in companies’ support activities and core activities. With the decision, around 4,000 cases stayed in the lower instances of the Judiciary may proceed. The discussion arose from Precedent 331 of the Superior Labor Court, which prohibits outsourcing.
For the majority of the justices, there is no law prohibiting the practice nor proof that this type of service provision makes work precarious or violates the dignity of the worker.
Under the prevailing understanding, free enterprise and free competition may not be violated, since there are principles that ensure to companies the freedom to seek better results and greater competitiveness.
“The Federal Constitution does not impose the adoption of a specific model of production. The Federal Constitution does not prohibit outsourcing,” stated Justice Luís Roberto Barroso, reporting justice of one of the actions under discussion.
For the lawyer of the Conecta company, Fernando Abdala, the decision of the 5th Panel was correct in following the understanding of the Supreme Court. “The observance of the decision of the STF by the 5th Panel of the TST demonstrates a praiseworthy coherence, since respecting the understanding of the Supreme Court resolves the problem of the lack of legal certainty that companies had been suffering due to the legal gap relating to outsourcing,” he said.
According to Abdala, there was concern that some labor judges might try to avoid applying the decision of the Supreme Court by relying on other arguments related to fraud and subordination. “Fortunately, the TST followed the established understanding,” he stated.
Source: Consultor Jurídico / Gabriela Coelho
Illustrative photo of a core activity (it does not represent the company cited nor its sector of operation)
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