Recently, Justice Cármen Lúcia of the Federal Supreme Court (STF) overturned a decision by the 58th Labor Court of São Paulo that recognized the employment relationship between a driver and the company ETM Transporte e Logística Eireli. The first instance decision had considered the service provision contract entered into between the company and the driver through a legal entity to be invalid, contradicting the understandings consolidated by the STF on the legality of outsourcing.  

The driver requested recognition of the employment relationship for the period 2021 to 2024, claiming that, despite the service provision contract, he had worked as an employee of the company during that period. The company ETM acknowledged the provision of services, but argued that the activities were developed autonomously, supported by Law 11,442/2007, which regulates the transportation of cargo by third parties.  

However, the Labor Court of São Paulo did not consider the evidence presented by the company regarding the driver's autonomy to be sufficient and determined the recognition of the employment relationship and the consequent payment of the respective labor benefits. 

When overturning the decision, Justice Cármen Lúcia based her decision on precedents from the STF that address the legality of outsourcing and the execution of civil contracts. The following judgments stand out: 

ADPF 324: The STF analyzed the constitutionality of the outsourcing of core activities of companies, concluding that the outsourcing of any and all activities, means or ends, is lawful, not configuring an employment relationship between the contracting party and the employee of the contracted party.

Theme 725 of General Repercussion: This topic deals with the legality of outsourcing services to achieve a company's core business. The STF has recognized that outsourcing or any other form of division of labor between different legal entities is legal, regardless of the corporate purpose of the companies involved, as long as the subsidiary liability of the contracting company is observed.  

Direct Action of Constitutionality (ADC) 48: The STF declared the constitutionality of Law 11,442/2007, which institutes the category of autonomous cargo transportation, allowing companies to hire autonomous transporters without this constituting an employment relationship.   

Direct Action of Unconstitutionality (ADI) 3961: The STF dismissed the ADI that questioned the constitutionality of provisions of Law 11,442/2007, reaffirming the possibility of hiring independent transporters without an employment relationship.  

Direct Action of Unconstitutionality (ADI) 5625: The STF analyzed the constitutionality of provisions of Law 13,352/2016, which regulates partnerships between beauty salons and professionals in the sector, allowing the provision of services without an employment relationship. 

It can be seen that Minister Cármen Lúcia's decision reinforces the STF's interpretation that outsourcing is permitted, even for the company's core activities, as long as the appropriate legal and contractual parameters are observed.  

This guidance is essential for companies seeking to make their operations more flexible and reduce costs, as well as for workers who act as independent service providers, so that both understand the aspects of these decisions to ensure compliance with current legislation. 

For specific legal guidance on how these decisions may impact your business or work, our team of experts is available to provide personalized advice on this and other topics.