Companies have succeeded in overturning adverse judgments and agreements signed with the Labor Prosecution Office (MPT) that address outsourcing. The decisions are based on the judgment of the Federal Supreme Court (STF) that deemed valid outsourcing, the outsourcing laws (No. 13.429, of 2017) and labor reform (No. 13.467, 2017).

Prior to the new laws and the STF decision, labor courts often awarded adverse judgment on companies to pay amounts in millions. In these cases, judges enforced Precedent No. 331 of the Superior Labor Court (TST), which prohibited the outsourcing of the main activity – the essential part of the business.

Recently, however, the Campinas Regional Appellate Labor Court (TRT) -15^th Region decided to void an agreement entered into between the MPT and Usina Santa Isabel and Santa Luiza Agropecuária, located in Novo Horizonte, in the state of São Paulo (Case No. 0010488-92.2018.5.15. 0049). The agreement was signed after the company was ordered to pay BRL 1.3 million for outsourcing deemed illegal. Companies have made a commitment not to outsource sugarcane harvesting, nor to reduce their employees’ meal breaks to less than an hour.

The mill’s and agribusiness’s attorney, Renato Serafim, of Ilario Serafim Advogados, said that even with the advent of the labor reform, companies were still prevented from outsourcing their main activities or reducing meal breaks, due to an agreement signed in a public interest civil action with the MPT.

While its competitors, subject to current laws could invest in outsourcing, he adds, “the company [mill] had its hands tied, losing competitiveness in the market.” Once the agreement ends, according to the attorney, it will be able to outsource mechanized harvesting, which requires high-tech equipment. “The company will now be able to expand its main sugarcane harvesting activity and create new business and employment opportunities in the region.”

In theory, says Serafim, all companies that have entered into agreements with the MPT are required to comply with the terms set out in the instrument, even if current legislation allows broad outsourcing. The attorney says that, before resorting to the courts, he contacted the prosecutor of the case in Araraquara, who refused to review the agreement.

In Minas Gerais, the Regional Labor Court (TRT) has already made at least four decisions to review almost definitive adverse judgments shortly before the payment (enforcement) phase. In these cases, companies have used a legal instrument provided for in paragraphs 12 and 14 of article 525 of the new Code of Civil Procedure (CPC), 2015, called the pre-execution motion, which allows voiding a judgment based on law or enactment deemed unconstitutional.

As at the time the Supreme Court tried outsourcing matters (RE 958.252 and ADPF 324), in August 2018, the certificate of unappealable judgment (when judgment cannot be appealed against) had not been issued, the attorneys decided to request the adverse judgment be dismissed, which has been upheld by the court.

In one case, a financial institution, linked to a supermarket chain, managed to be released from paying BRL 175,000 to a worker. The suit was brought by a former employee who offered the bank’s credit card to customers of this supermarket chain. She claimed that she was illegally outsourced and actually worked for the financial institution as a bank representative.

In the first and second instance judgments, outsourcing was deemed illegal. The employment relationship with the bank was recognized and the overtime payment was determined since bank hours (five) were less than the regular working hours. She worked eight hours. The judgment was upheld at the Superior Labor Court (TST).

However, as the Supreme Court’s judgment took place on August 30, 2018 and the certificate of unappealable judgment (when judgment cannot be appealed against) was only issued on February 22 of this year, the 7^th TRT Panel was unanimous in arresting the adverse judgment, maintaining the understanding of judge Jésser Gonçalves Pacheco of the 5^th Labor Court of Belo Horizonte (interlocutory appeal No. 0010226-84.2016.5.03.0005).

In her decision, the rapporteur, judge Cristiana Maria Valadares Fenelon, points out that the case law in the Minas Gerais TRT has been moving in this direction. She mentions three more recent decisions that arrested adverse judgments.

According to the attorneys who advised the financial institution in the suit, Caio Madureira and Rodrigo Macedo of Tortoro, Madureira & Ragazzi Advogados, “this decision is extremely important” because it is made by a court that historically deemed outsourcing illegal. “This is why we celebrate this decision,” says Madureira.

Contacted by Valor, the former employee’s attorney, Wagner Santos Capanema, said he is still reviewing the decision to assess whether he will appeal.

In the opinion of attorney-in-fact Paulo Joarês, national coordinator of Combating Fraud in Labor Relations of the MPT, immediate enforcement of the understanding of the Supreme Court applies to cases that have not become unappealable. However, he adds, it is prudent for the Labor Court to wait for final judgment to be rendered. “Until that moment, the judgment has not been published,” he says. According to Joarês, this is because, in many cases, it will be necessary to distinguish between the precedent of the STF and the specifics of each case.

In regard to reviewing agreements, the prosecutor states that it is necessary to carefully evaluate each case. “In many cases, it may be appropriate to replace the provided obligations to adjust them to the content of the new law,” he says. He highlights that “it is necessary to observe both the limits of the STF decision, which only discussed the possibility of outsourcing any activity, such as the provision of services between companies, but did not legitimize the provision of workforce, as well as the requirements of Law 6019/74, which requires an effective transfer of activities from one company to the other, which must have operational autonomy, economic capacity and exclusively direct its employees’ work.”