Last August 30th, the Federal Supreme Court (STF) decided on the constitutionality of hiring outsourced companies to provide services related to the companies’ core activities. The decision goes against the consolidated understanding of the Superior Labor Court (TST) in Precedent 331.
The aforementioned Precedent expressly prohibits the contracting of outsourced workers for core activities, in which case the Labor Courts would be authorized to declare the existence of an employment bond between the outsourced worker and the company contracting the services. This understanding has been in force since the 1990s, first through TST’s Enunciado 256, replaced by Súmula 331 almost 20 years ago.
The Supreme Court decision comes now, by 7 votes to 4, putting an end to the discussion of using this criterion, alone and independent of other evidence, to consider outsourcing legal or illegal.
Even so, the statement that has been disseminated, to the effect that the STF has “liberated” the outsourcing of any service, is wrong.
The first inaccuracy in the statement is that the STF would have been responsible for the permission that is currently in force for outsourcing a company’s core business. That’s because, this has been allowed since March 2017 by virtue of Law 13,429/17.
Furthermore, it is erroneous to say that the Supreme Court “liberated” the outsourcing of any service, allowing companies to avoid the employment relationship and its charges. What the STF did, in fact, was to eliminate the end activity as a determining element for the existence of illegal outsourcing and, consequently, of the employment relationship with the service acquirer.
It is unanimous among specialists that, whenever the characteristics of an employment relationship are present in practice (personality, burden, habituality, and subordination, according to article 3 of the CLT, not repealed by the so-called Labor Reform), the Labor Court may declare the existence of an employment contract with the service acquirer and, consequently, the existence of labor rights. Law 13.429/17 and the recent STF decision have not changed that.
The STF’s decision may however be very relevant for the review of lawsuits and even Conduct Adjustment Agreements (TACs) that deal with facts prior to Law 13.429 of March 2017, in which the outsourcing of end-activities was considered as a determining element of the legality or illegality of outsourcing.