By Israel Cruz, Paola Carvalho and Njala Miter

In a recent trial in the ARE 791932 lawsuit, the Federal Supreme Court (STF) decided on the possibility of unrestricted outsourcing by telephone companies, a measure that recognized the violation of the plenary reservation clause by the Superior Labor Court when it ruled out the applicability of article 94, item II of the General Telecommunications Law (Law 9,472/97).

The STF's decision was based on the violation of Article 97 of the Federal Constitution and Summary 10 of the STF itself. According to the vote of rapporteur Minister Alexandre de Moraes, the TST:

although it did not expressly declare incidental unconstitutionality, the fractional body of the Superior Labor Court ruled out the application of Law 9,472/1997, having, consequently, exercised diffuse control of constitutionality, without applying article 97 of the Federal Constitution, and violated the statement of Binding Precedent 10, for disrespecting the plenary reservation clause. [1]

It is worth noting that this decision consolidates the STF's position in allowing unrestricted outsourcing, under the terms of the joint judgment of the Claim of Non-Compliance with Fundamental Precept (ADPF) 324 and the Extraordinary Appeal (RE) 958252.

From section II of article 94 of the General Telecommunications Law (Law 9,472/97).

Section II of article 94 of the Telecommunications Law states:

Art. 94. (…);

II – contract with third parties the development of activities inherent, accessory or complementary to the service, as well as the implementation of associated projects. (…)

As can be seen from the wording of the paragraph in question, Telecommunications companies have always been authorized to contract any type of services, such as call centers, network maintenance, installation, among others.

Therefore, we have that the decisions handed down by the TST, as well as by the other TRTs, which ruled out the possibility of outsourcing any service by telecommunications companies, in fact, violated the plenary reservation clause, which is why they may even be subject to rescission action depending on the specific case.

[1] The full document can be accessed via the link: http://www.stf.jus.br/portal/autenticacao/autenticarDocumento.asp using code 9780-0177-2876-4C1F and password 1743-BCE2-AA62-AD1F