Outsourcing: current scenario and outlook

January / 2017

Among the legislative proposals considered of greater relevance for this year is the one that regulates outsourcing, which has provoked a wide discussion about flexibilization of the labor legislation and implications in the economy.

In the current scenario, what is verified is a complete and absolute legal insecurity to the entrepreneurs, considering that the only Precedent of the Superior Labor Court (No. 331) that involves the subject, deals with the matter (concept of company's core activity) in a vague and superficial way, leaving a series of gaps that provoke, besides recklessness in the execution of employment contracts by entrepreneurs, divergences in the decisions of the Magistrates themselves, in similar cases or even cases of the same company.

On the subject there are two bills currently in progress, Bill 4,302/1998, which awaits a vote of the House of Representatives and Bill No. 4,330/2004, which has already been approved by the House and is currently awaiting a Senate vote. This last one intends to regulate and clarify the authorization for outsourcing in a broader way (including the company's core activity), as well as the exclusion/reduction of liability to third-party service obligations.

Among the expectations related to the approval of bills, the following stand out: (i) greater certainty as to the direction and risks of the activity and contracts entered into; (ii) the possibility of improving the outsourced services, and (iii) the adaptation of labor legislation to contemporary society (since legislation has not accompanied social developments related to market realities and labor relations).

At the same time, in the end of 2016, the Labor Minister, Ronaldo Nogueira, presented a proposal for a labor reform, which, if approved, can also be understood as a form of make outsourcing more flexible.

As long as the Bill is not voted on and the Reform is not implemented, companies have the prerogative to discuss the issue in the judicial sphere. Certain processes of certain branches of activities (such as telemarketing and construction) were already trial at the Supreme Court and have been suspended.

In the judicial sphere, the most awaited judgment is of the lawsuit that discusses the constitutionality of Precedent nº. 331 of the TST by the Supreme Court, in a Public Civil Lawsuit filed by the Public Ministry of Labor of Minas Gerais (3rd Region) against the company Celulose Nipo Brasileira S/A (Cenibra). This lawsuit has Minister Luiz Fux as rapporteur and was on the agenda of 8th November 2016, when it was postponed without a new date for trial, until then.

Vernalha, Di Lascio, Mesquita & Associados is at the disposal of its clients for further clarification on the subject.