In the first half of 2014, Justice Luiz Fux acknowledged, in ARE No. 713,211 (Celulose Nipo Brasileira S/A v. Ministry of Labor and Union of Workers in the Extractive Industries of Guanhães and Region), a general impact on the issue of the constitutionality of Summary Ruling No. 331 of the Superior Labor Court (TST), which establishes, in the Brazilian labor law framework, civilized limits on the hiring of third-party companies to provide replacement labor. And, whether due to the peculiarities of the case or the developments observed since then, there is a fear that, with a stroke of a pen, the Supreme Court will commit a greater violation of the social value of work than Bill No. 4330 itself, still pending in the National Congress.
Indeed, in EmbDcl in AgRg in RE with Ag (ARE) 713.211/MG, in a virtual plenary session, the STF admitted to the general repercussion regime the examination of the "parameters to be observed to identify which tasks can be outsourced by employers," opening room for discussion, in constitutional terms, the validity of Summary No. 331, I, of the TST. In the understanding of Justice FUX, "(...) the judicial prohibition of hiring outsourced labor did not arise from the analysis of a specific legal text, but from a judicial understanding that sought to delimit the principle of legality within the scope of labor relations." However, it is precisely with this entry that the Superior Labor Court has ensured minimum compensation for human dignity in labor relations, recognizing fraud in the so-called "outsourcing of core activities" (item I). Glaring examples of such fraud emerged during the 1980s and 1990s across a wide range of economic sectors. In the footwear sector, for example, shoe companies shut down entire sections of their production lines to replace them with labor cooperatives formed primarily by former employees, now hired as "independent contractors." In practice, they were rehired at significantly lower real pay. In the field, workers were also frequently reintroduced to the fields under conditions of neo-slavery (art. 149 of the Criminal Code). Furthermore, even in lawful outsourcing, Summary No. 331 ensures minimum liquidity for evaded labor credits, since, given the economic unsuitability of the service provider, the contracting company itself may be called upon to respond with its assets, in a subsidiary capacity (item IV).
Behind the scenes of the admissibility of this general repercussion—which, it must be said, could have been recognized years ago (Summary No. 331 is almost twenty years old, but only now has its text reached the Supreme Federal Court, prompting a special "alignment" of people, circumstances, and interests)—union, academic, and institutional sectors fear the worst. And the worst, in this case, would be a declaration of unconstitutionality of the entry, or a substitute interpretation, to henceforth authorize, for the sake of free enterprise, any type of outsourcing of labor, under any circumstances, ensuring minimum contractual formalities.
With such liberalization, to give a single, ominous example, a public hospital would not need to have its own employees: the founding entity would simply outsource administrators, doctors, and nursing services, in addition to so-called "support activities," which are already traditionally outsourced (security, cleaning, food, etc.). Human labor
would become a commodity freely traded on the market, completely at the mercy of the laws of supply and demand.
Therefore, should this ominous hermeneutical inversion come to fruition, three practical effects of great social impact are already foreseen, observable in the medium and long term:
(a) the disappearance of Labor Law as it was constructed in Brazil, under the aegis of a principle of worker protection (Article 7 of the Federal Constitution);
(b) the irreversible weakening of Brazilian labor unions; and
(c) the disappearance of Labor Justice itself.
In all these areas, ANAMATRA's statutory purposes require it to act with absolute rigor. Among them, two in particular: the preservation of the Labor Judiciary,
in its entity, its autonomy, and its rights and prerogatives; and the defense of the integrity and progressiveness of social rights.
In this vein, it is important to question, in reverse, whether the free hiring of labor—for core and non-core activities—could be validly enacted within the Brazilian legal system, by law or by court order. Its constitutionality should be investigated in light of Articles 1, IV, Part 1, 6, 7, 170, and 186, III, all of the Constitution
of the Republic; and, even before that, inquire into its conventionality, considering the current legal framework of protection (condensed in Summary No. 331 of the TST) and what is set out in article 26 of the Pact of San José da Costa Rica, ratified by Brazil (Decree No. 678/1992) and already considered by the STF as a supralegal right (see RE No. 349,703, RE No. 466,343 and HC No. 87,585):
“The States Parties undertake to adopt measures, both domestically and through international cooperation, especially economic and technical, in order to progressively achieve the full effectiveness of the rights arising from the economic, social, educational, scientific, and cultural standards contained in the Charter of the Organization of American States, as amended by the Protocol of Buenos Aires, within the limits of available resources, through legislation or other appropriate means.”
Article 45 of the Charter of the Organization of American States, in turn, reads:
Member States agree that equality of opportunity, the elimination of extreme poverty, and the equitable distribution of wealth and income, as well as the full participation of their peoples in decisions concerning their own development, are, among other objectives of integral development. To achieve these objectives, they also agree to dedicate their greatest efforts to achieving the following basic goals: [...] g) Fair wages, employment opportunities, and acceptable working conditions for all; [...].” So then: will allowing the outsourcing of services for any and all social purposes, without minimum guarantees, mean progress in the areas of fair wages, equal opportunities, and acceptable working conditions?
For ANAMATRA, the answer is self-evident. In any case, what will come, one way or another, will viscerally affect the future of all of us. Let's stay tuned.
The Editorial Board