Published in Valor Econômico on April 24, 2019

One financial institution was able to overturn an adverse judgment under labor law shortly before the payment (execution) phase, based on the Supreme Court (STF) trial that deemed any form of outsourcing lawful. The decision of the 5^th Labor Court of Belo Horizonte was only possible because the bank’s defense counsel used a procedural instrument provided for by the new Code of Civil Procedure (CPC) of 2015, which establishes this possibility for exceptional situations.

By means of a mechanism called pre-execution motion (article 525), which is not widely disseminated in the Labor Court, a financial institution, linked to a supermarket chain, managed to be released from paying BRL 175,000 to a worker. “The check was about to be handed to the claimant when we became aware of the decision,” says attorney Caio Madureira, who advised the financial institution along with Rodrigo Macedo, both of Tortoro, Madureira & Ragazzi Advogados.

Based on this case’s success, attorneys say they should use the same argument in about 300 similar cases. The suit analyzed by judge Jésser Gonçalves Pacheco, from the 5^th Labor Court of Belo Horizonte, 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).

Since at the time the Supreme Court tried the outsourcing matter (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 institution’s attorneys filed the pre-execution motion request, which was accepted by the execution judge, Jésser Gonçalves Pacheco.

In his decision, the judge considered Article 884, paragraph 5, of the Consolidation of Labor Laws (CLT), dated 2001. According to this provision “a court judgment based on law or an enactment declared unconstitutional by the Supreme Court, or on an enforcement or interpretation deemed incompatible with the Federal Constitution is deemed unenforceable.”

According to the judge, a judgment is deemed unconstitutional when the determination of the Supreme Court is published before the unappealable judgment. As the certificate was issued after the ministers’ decision, published on February 22, he considered that the case should be dismissed, except for payment of vacation in double, which is not related to outsourcing (OrdPR 0010 226-84.2016.5.03.0005).

For attorney Caio Madureira, the financial impact of the decision is relevant. Labor claims brought to hold employers liable were frequent, he added. In this case, according to him, the former employee, who worked for one year and eight months and received a BRL 1,000 salary, was entitled to about BRL 175,000 for being considered an employee of the financial institution. The employee’s attorney was contacted by Valor but did not reply before the article was published.

The use of the pre-execution motion is not possible, however, for unappealable decisions (res judicata). In such cases, the attorneys consider filing a motion for relief from judgment. However, regarding the outsourcing case, they need to wait for the Supreme Court’s unappealable decision and any adaptations of its effects.

Attorney Daniel Chiode, of Chiode Minicucci Advogados considers filing a motion for relief from judgment in this case. He states that the Belo Horizonte judge’s decision progressed in regard to the Supreme Court’s decision, since the ministers declared the unconstitutionality of part of Precedent No. 331 of the Superior Labor Court (TST), which deemed the outsourcing of the main activity illegal, but preserved the secondary liability of the employer.

“It is a bold decision [of the 5^th Labor Court of Belo Horizonte] that may be overturned by the second instance court, although it is consistent and this matter may be clarified when the Supreme makes any adaptations,” says Chiode.

The possibility of arresting judgments on outsourcing has drawn the companies’ attention, especially those that have had adverse judgment to pay millions in civil actions of public interest filed by the Labor Prosecution Office (MPT). However, prosecutor Paulo Joarês, national coordinator of Combating Fraud in Labor Relations of the MPT, says that the STF decision is restricted to matters pertaining to main activity.

“Many cases involve other aspects, such as workforce intermediation, for example, which is only lawful in the case of temporary work, which has not been modified,” says the prosecutor.

Joarês also points out that the ministers should clarify several aspects about the scope and effects of the STF decision, by means of motions for clarification of judgment that may be filed after the final judgment is published. In addition, the prosecutor points out that direct actions of unconstitutionality against laws No. 13.429 (which regulated outsourcing) and No. 13.467 (labor reform), both of 2017, which are not limited to the discussion pertaining to the main activity, are pending judgment.