September / 2018
By 7 votes to 4, the Federal Supreme Court upheld the Arrangement of Non-Compliance with Basic Precept (ADPF) 324, meaning the legality of the outsourcing of services both in the middle and in the activities end of the companies, ie, it is valid the outsourcing or any other form of division of labor into separate legal entities irrespective of the corporate purpose of the undertakings concerned.
The Ministers' decision invalidated items I, III, IV and VI of Summary 331 of the Superior Labor Court, which tried to regulate the situation before the legislative amendment in 2017, but in practice caused wide legal uncertainty by the historical discussion about concepts and definitions of would be limited as middle and ends activities of the company.
However, despite the disclosure of the broad and unrestricted possibility of outsourcing, it is important that companies are aware of the basic requirements of this form of contracting, which are provided for in the legislation for the validity of the relationship.
Outsourcing means strict delegation of services, so that personality and subordination can not be present between the company and outsourced. This means that the company hires services, not being able to require them to be performed by a specific person, nor to subject the outsourced employee to direct and specific orders.
There is also a new requirement, included by the labor reform, as a form of employee protection, that the outsourced company, ie, the real employer, must have demonstrated economic capacity.
The borrowing company, therefore, must ascertain the financial health of the contracting company, as well as ensure compliance with the validity requirements of the contractual modality on a day-to-day basis, under penalty of recognizing the illegality, hypothesis that the bond is formed directly with the borrower.
It is important to note that legislation still provides for the subsidiary liability of the borrowing company, in order to protect the employee's credit against default by the employer.
With general repercussion, all processes that deal with the issue and which have not been settled will be judged under the new understanding.
Vernalha, Di Lascio, Mesquita & Associados is at the disposal of its clients for more information on the subject.