By Paola Carvalho and Leticia Cordeiro

In February 2019, a judgment was handed down by Rapporteur Maria Cristina Irigoyen Peduzzi of the 8th Panel of the TST[1], which reiterated the understanding issued in November 2018 by the STF in ADPF 324 and Extraordinary Appeal 958252, whose judgment determined the constitutionality of outsourcing with regard to the core activity.

Thus, given this permission, the applicability of the outsourcing between different legal entities, regardless of the companies' corporate purpose, the legality of outsourcing in any and all activities, whether means or ends, is gaining more and more strength.

An excerpt from the aforementioned judgment stands out:

(…) Outsourcing or any other form of division of work between different legal entities is lawful, regardless of the corporate purpose of the companies involved, maintaining the subsidiary liability of the contracting company” (ADPF 324/DF and RE 958252/MG).

(TST – RR: 9259620135100014, Rapporteur: Maria Cristina Irigoyen Peduzzi, Judgment Date: 20/02/2019, 8th Panel, Publication Date: DEJT 22/02/2019)

Therefore, from the analysis of the judgment above, it is possible to verify that regardless of the corporate purpose of the service provider, outsourcing will be lawful, except in cases where precariousness or hiring contrary to the standards already provided for is proven.

However, it is important to emphasize that the recent understanding regarding outsourcing, even if lawful, does not prevent the subsidiary liability of the service recipient, as already provided for in Summary 331 of the TST.

Thus, this type of service provision is supported by free initiative and free competition and does not automatically result in precarious work, as was widely discussed in the ADPF 324 judgment.

It was substantiated in the judgment that reiterated the STF decision that outsourcing does not entail a violation of the worker's dignity or disrespect for social security rights, and therefore, the outsourcing of any and all activities without the necessary configuration of an employment relationship is lawful.

Thus, in view of the judgment handed down, in line with the understanding of the STF, it is possible to conclude that the corporate purpose of the service provider company is not sufficient to disqualify the legitimacy of outsourcing, given that the core of a company does not necessarily result in its activity.

The consequences arising from the possibility of outsourcing the provision of services and its subsequent application in the Courts are not yet known, but it is possible to see that the STF's understanding has been observed.

Likewise, the changes to the 2017 Labor Reform were not limited to the legitimacy of outsourcing, and also included highly relevant topics. However, they still lack applicability and consolidated understandings, making it necessary to verify the way in which the Courts will carry out the execution of these rules.

As an example, we can highlight topics such as “Pejotização”, intermittent working hours, home office, among other recent and relevant topics, the understanding of which is still under discussion.

[1] TST-RR-925-96.2013.5.10.0014