Recently, decisions handed down by the Federal Supreme Court (STF) remove the employment relationship of former directors, recognized by the Labor Court, and validate the maintenance of hiring a worker as a Legal Entity, based on “licit outsourcing”.
The issue gravitates to the so-called “hyper-sufficient”, a term introduced by the Labor Reform, thus considered those who have a higher education diploma and receive more than two Social Security ceilings (R$ 15,014.98, total in January of this year).
On that occasion, the provision of services by a former director of the Brazilian Football Confederation (CBF) was analyzed, whose employment relationship was recognized by the Regional Labor Court of Rio de Janeiro and by the Superior Labor Court, whose decision was annulled. by the STF, ordering a new trial, in order to observe the jurisprudence of the Supreme Court (Complaint nº 56499).
Likewise, the STF analyzes cases of:
- Doctors;
- Lawyers;
- Realtors;
- Technology service providers.
All of them they carry out intellectual activities and are considered “hyper-sufficient”, having been removed, among other arguments, the employment relationship, due to this condition (Complaint 55607 and Complaint 56132).
The reason for the annulment of the decisions handed down by the Labor Courts is that they would, in theory, be disrespecting the jurisprudence of the Federal Supreme Court, which authorizes the broad and unrestricted outsourcing of services via Legal Entities (ADI 3.961, ADI 5.625, ADC 48, ADPF 324 and RE 958,252).
According to the rapporteur for the case of the former CBF director, Minister Luís Roberto Barroso, outsourcing for any activity of the company is lawful, including the core activity, provided that “the contract is real”, that there is no employment relationship with the service provider company. Therefore, if the outsourcing contract “is not real”, there will be an employment relationship.
The exception made by the Minister is important, therefore, for the analysis of specific cases.
News
What is new is the Labor Reform and the understanding signed by the STF that any and all company activities can be outsourced.
An industry that formerly had countless employees to manufacture fabric, can now outsource all its production and only manage the brand’s activity.
Based on this understanding of the STF, companies have taken advantage of the lawsuit called “Complaint”, in order to enforce this understanding of the Federal Supreme Court that all company activity can be outsourced.
It is important to remember, however, that for outsourcing to be legal, the contract entered into between legal entities must be “real”.
When is there “pejotization”?
A “PJ” employment contract cannot be considered “real” when, in the analysis of the factual reality, the employment relationship requirements are present. To know:
Subordination (h3)
It is the most prevalent element in the analysis of the existence (or not) of an employment relationship.
The word derives from sub (below) and ordinare (order), demonstrating that it is a hierarchical structure that stems from a subjection to the directive power of another person on the way in which the provision of services is carried out.
In other types of service provision, therefore, the “final result” is contracted. Unlike the subordination of an employment relationship that acts on the way in which the service is provided;
Physical person
The employment contract is signed with an individual. That is, an employee is always a natural person and not a legal entity;
Personality
The employee is not replaced by someone else. He himself, and only his natural person, is hired to perform the service, and cannot be replaced by another person, which would make the relationship impersonal.
In the employment relationship, it is the personality that characterizes the employment relationship.
In some situations, there is consensus between the parties about some absences in the provision of services, such as vacations, maternity leave and others, which would not break the concept of personhood.
Even if these absences occur and there is a temporary replacement of the employee, the personality will still be present in the legal relationship between employer and employee;
onerosity
The employment relationship is economic in nature.
The work performed entails the economic counterpart, the payment of a salary to the employee, which can be paid, depending on the contract, on a weekly, fortnightly or monthly basis. In the latter case, it can be paid up to the 5th business day of the following month;
Habitality
The provision of services cannot be occasional, and there must be a habit that leads to a permanence and days to carry out the activities.
In the employment relationship, there is non-continuous provision of services, permanent, of a continuous nature, with, in short, an expectation of the employee’s presence on that day and time to carry out their activities;
otherness
The risk of economic activity rests with the employer. That is, in the analysis of the characterization of the employment relationship, it is observed the assumption of the risks of the economic activity that, in the case in analysis, must be of the employer.
Once the requirements are fulfilled cumulatively, we will be faced with an employment relationship, which can even be tacit, verbal, not written. It is the reality of the facts that must be analyzed for the characterization of the employment contract.
How the company should act
If the company needs an individual, who provides services on a regular basis, personally, without being able to be replaced, fulfilling a specific schedule and working days, what it needs is an employee and not a third party, therefore .
The employment relationship involves different scales, working hours, types of service, but such differences are in the same normative structure, within the employment relationship, when the requirements presented above are present. It may be different leaves, but from the same tree.
The apparently different truths are within the same legal norm, the Consolidation of Labor Laws (CLT), which provides for employment bond requirements.
The free contractual stipulation of “hyper-sufficient” employees is possible, as long as it does not violate labor protection provisions, as long as it is an effectively outsourced service, real.
With information from the exam