Minister Alexandre de Moraes overturned the TST ruling that declared illicit outsourcing by a telephone service concessionaire

RCL 45687/MG

Minister Alexandre de Moraes, of the Federal Supreme Court (STF), upheld RCL 45687 / MG reversing the ruling of the Superior Labor Court (TST) in which it was considered illegal to outsource call center services by a telephone service concessionaire . The decision of Minister Alexandre de Moraes was based on the non-observance of the plenary reservation clause (art. 97, CF / 1988 and Binding Precedent 10) and the requirement to comply with the STF consolidated understanding on Theme 725 of the General Repercussion and on the ADPF 324.

The constitutional claim was filed against a decision issued by the TST that recognized the illegality of outsourcing by direct subordination of the outsourced employee to the service borrowing company. In the judgment, a distinction was made in relation to the precedents of the STF in the judgment of ADPF 324 and RE 958252, on the grounds that it was found in this specific case, which authorizes, according to that decision, the recognition of the direct employment bond .

The factual situation makes reference to the action in which the plaintiff claimed the application of the normative instruments of collective labor law signed between the service borrower, a telephone service concessionaire, and its employees, with a view to receiving the funds provided for there. The ruling declared outsourcing to be lawful, but the decision was reformed in the second instance of jurisdiction, when it was understood by the illegality of the contract signed by the company that provided the call center services.

It is worth remembering that the telephone service concessionaire “may contract with third parties the development of activities inherent, accessory or complementary to the service, as well as the implementation of associated projects”, as stipulated in item II, of article 94, of Law 9.472 / 1997.

In the decision, Minister Alexandre de Moraes pointed out that the TST when carrying out the interpretation that considered the outsourcing of services based on Precedent 331 / TST, exercised diffuse control of constitutionality through the decision technique of the declaration of partial unconstitutionality without reducing the text, by which a certain interpretation is censored without, however, changing the text grammatically.

Thus, “although it did not expressly declare the incstitutionality unconstitutional, the fractional body of the TST dismissed the application of Law No. 9.472 / 1997”, denying validity and partial effectiveness to item II of article 94, “having, consequently, exercised the diffuse control of constitutionality without application of article 97 of the Constitution, and violating the statement of the Binding Precedent 10, due to disrespect to the clause of the plenary reservation ”, according to which the unconstitutionality of law or state normative act can only be declared by the vote of the absolute majority of all members of the court or of the members of the respective special body.

In addition, the TST ruling, which is the subject of the constitutional claim, contradicted “the results produced in RE 958.252 (Rel. Min. Luiz Fux) and ADPF 324 (Rel. Min. Roberto Barroso)”, “an opportunity in which the STF declared the unconstitutionality of Precedent 331 / TST, for violation of the constitutional principles of free enterprise and free competition, based, in the end, on the constitutionality of outsourcing of core activity or means ”.

Wilson Sales Belchior