16/12/2020

By Rafael Mello and Isarael Cruz

On 12/02/2020, the Superior Labor Court (“TST”) decided to process an incident of repetitive appeals in case no. 1000-71.2012.5.06.0018, so that the court's understanding regarding labor cases in which the legal nature of passive joint litigation in cases of outsourcing of services is discussed can be pacified.

Due to the establishment of the aforementioned incident, the suspension of all proceedings dealing with this matter was determined.

After generating major doubts about the scope of the decision, Minister Cláudio Brandão, rapporteur of the incident, issued a new ruling clarifying that:

“The matter affecting this incident is related only to cases in which the definition of the type of joint litigation formed between the defendants in disputes regarding the illegality of outsourcing services directly influences the decision to be rendered.

Therefore, not all proceedings concerning the outsourcing of services should be suspended, but only those in which the decision to be made depends on the definition of the effects of the joint litigation, because any of the issues referred to in the allocation decision are being discussed.

It is worth transcribing here, in addition to what has already been established in the aforementioned decision, the points addressed in the judgment that admitted the incident and which serve to exemplify its scope:

• in service outsourcing contracts, what is the legal nature of the joint litigation formed between the defendants: optional or
• necessary, simple or unitary?
• What are the effects of the author's waiver of the right on which the action is based in relation to just one of the companies, especially the service provider?
• Is there any legitimacy to appeal for the company that was not part of the dispute?
• in the cases examined in a retraction judgment, what effects are produced when only one of the defendants filed the extraordinary appeal?

Therefore, the suspension will depend on the relevance between the specific case and the issue affected in the present incident, considering the premises already defined and the fact that the suspension must be limited to the processes in which, effectively, there is an implication of the matter delimited herein”.[1]

With this, the TST intends to resolve issues regarding the admissibility of the summons to the process, legitimacy and appeal interest of companies that did not participate in the dispute and effects of the waiver of the right on which the action is based by the author, in relation to only one of the defendants.

[1] http://aplicacao5.tst.jus.br/consultaDocumento/despacho.do?anoProcInt=2014&numProcInt=193376&dtaPublicacaoStr=04/12/2020%2019:00:00&nia=0, accessed on 12/16/2020 at 9:00 am