An important decision recently handed down by the Federal Supreme Court (STF), based on the work of the Cesar Peres Dulac Müller Advogados labor team, has once again highlighted the importance of observing the Court’s binding precedents in labor matters, especially with regard to the legality of alternative forms of hiring, such as the provision of services by a legal entity – a practice known as pejotização.
The decision, drafted by Justice Alexandre de Moraes, accepted a Constitutional Claim filed by a dairy products industry, represented by the Firm, to annul a Labor Court decision that had recognized an employment relationship between the company and a professional hired for merchandising activities at points of sale. The labor lawsuit, upheld at first and second instance, disregarded the civil contract signed between the parties and imposed on the company obligations typical of an employment relationship.
In other words, although there was a contract signed between the companies and payments were made by issuing invoices, the Labor Court understood that, in practice, there was an employment relationship between the employee of the outsourced company and the contractor. The STF, when judging the case, concluded that this understanding contradicted previous decisions by the Court itself, which recognize the legality of this type of contracting, as long as the formal criteria and good faith between the parties are respected.
In analyzing the case, the STF reinforced the theses established in judgments such as ADPF 324 and Topic 725 of the General Repercussion (RE 958.252), consolidating the understanding that Brazilian legislation admits other forms of employment relationship besides the employment relationship governed by the CLT. In this way, the validity of outsourcing of core activities and the freedom of companies to organize their economic activity in accordance with the principles of free enterprise and free competition were once again recognized. In the case in point, it has been shown that the contracting process followed legal criteria and that payments were made by invoice, with variable remuneration according to the volume of visits and the scope of the activities.
The Constitutional Complaint was drafted by lawyer Marina Pintoa member of CPDMA’s labor team, who works on complex and recurring claims in the business world. A graduate of the Catholic University of Pelotas, with a postgraduate degree in Labor Law and Procedure, Marina personally led the legal strategy of this case, based on the paradigmatic decisions of the Supreme Court.
As well as reaffirming a well-established understanding, the decision also highlights a necessary movement: the active search for legal measures capable of guaranteeing contractual security in business relations. The Supreme Court has reiterated that the legal system does not impose a single form of contracting, assuring companies, based on the principles of free enterprise and free competition, the freedom to structure their activities through different models of work organization. The imposition of an employment relationship when there are valid civil contracts goes against this understanding and violates the Supreme Court’s binding precedents. However, there is a persistent lack of compliance with these decisions by the Labor Courts, which insist on dismissing the validity of legitimate contracts and imposing recognition of the employment relationship. The use of Constitutional Claims, in this context, plays an essential role in preserving what has already been decided in the context of concentrated control of constitutionality, and is a legitimate and effective instrument for containing judicial decisions that sometimes ignore the STF’s consolidated jurisprudence.
Cases like this demonstrate the importance of companies, regardless of their size or sector of activity, having specialized legal advice, prepared to face challenges that go beyond the labor court and require technical articulation in higher courts.