Ministers have been accumulating decisions to release contracts other than those planned
in the CLT (Consolidation of Labor Laws), according to a survey by the group of
Work and Development research at FGV Direito SP.
Monocratic decisions on outsourcing, pejotization and uberization show the
recurrence of the debate. The speed with which the ministers judge also calls for
attention.
According to the FGV survey, 15.7% of constitutional complaints —
instrument used to overturn a lower court decision that
allegedly violates STF precedents— receive a single-judge decision in
same day or, at most, the day after the arrival of the case that questions forms
of hiring.
Because these are complaints, the analysis tends to be faster, but on a specific topic.
labor, agility is even greater. When dealing with other topics, only
6.29% of cases were tried in the same period.
The unpublished data, to which Folha had access, are part of the second stage of the
research “Outsourcing.”
Ministers have been accumulating decisions to release contracts other than those planned
in the CLT (Consolidation of Labor Laws), according to a survey by the group of
Work and Development research at FGV Direito SP.
Monocratic decisions on outsourcing, pejotization and uberization show the
recurrence of the debate. The speed with which the ministers judge also calls for
attention.
According to the FGV survey, 15.7% of constitutional complaints —
instrument used to overturn a lower court decision that
allegedly violates STF precedents— receive a single-judge decision in
same day or, at most, the day after the arrival of the case that questions forms
of hiring.
Because these are complaints, the analysis tends to be faster, but on a specific topic.
labor, agility is even greater. When dealing with other topics, only
6.29% of cases were tried in the same period.
The unpublished data, to which Folha had access, are part of the second stage of the
research “Outsourcing and Pejotization in the STF: analysis of complaints.
According to the study of Olívia Pasqualeto, Ana Laura Barbosa and Laura Fiorotto,
ministers issue a decision within five days in 33.19% of complaints
on recognition of employment relationships. In general cases, the rate drops to
21,27%.
Almost half (48%), of a total of 167 decisions, between January and August of the year
past, overturned the understanding of the Labor Court —a number
considered high.
According to Barbosa, the high volume of complaints about employment relationships (12.66%
of the total, in 2023) and the organization of work in the court offices are hypotheses
to explain the greater speed of analysis.
“Since there are many cases, they end up being judged more quickly. So, the
volume pode contribuir para isso [tempo mais curto para julgamento], pensando
in an office organization that seeks to optimize work further,” he says.
The Uberization of work will have its debate expanded in the Supreme Federal Court. For the first time, the
the court's plenary will decide on the matter. The trial was scheduled for this
Thursday (8), but it did not happen. The expectation is that the case will return to the agenda in
Thursday (21), but the date is not defined.
The topic to be addressed by the collegiate brings as a backdrop, according to
experts interviewed by Folha, the legality of contracts beyond the signed contract,
provided for in the CLT.
The specific case to be judged is that of a Rappi driver, who had a bond of
employment recognized in the labor sphere.
The rapporteur, Minister Alexandre de Moraes, suspended the process and, in another
complaint, filed by Cabify, had already denied the work permit and sent the
action to the ordinary courts. The First Panel, unanimously, overturned the
labor decision.
In common, ministers use similar grounds to overturn a decision of
lower court. In addition, they resort to precedents, which, together, show
what other contracts are allowed.
Among them are court decisions that reaffirm contracts in road transport.
without employment relationship, authorize outsourcing in any activity and
consider any other form of division of labor lawful.
For Pasqualeto, the ministers make an expanded interpretation of the jurisprudence,
and states that the specific case under analysis at this time is more important than the
time taken in the trial.
Lawyer Mayra Palópoli, partner at Palópoli & Albrecht Advogados, highlights the
precedents of the Supreme Federal Court. "These decisions may be moving more quickly
because there is already a conviction, there is already a firm decision.”
According to her, who defends companies that contest the recognition of a link in
case of pejotization, the court's decision in the case of uberization may reinforce the
understanding the legality of other contracts.
“We have great legal uncertainty regarding this matter. In our understanding
broader, this would also be used for all other segments that use
different forms of hiring, such as outsourcing, pejotization and self-employment,” he says.
This history of decisions increases the expectation of victory in the STF plenary session in
Rappi case, says Daniel Domingues Chiode, partner at the Chiode law firm
Minicucci | Littler, who represents the app in the lawsuit.
Chiode is responsible for other processes in which he defends companies
application. According to him, the arguments he presents to the ministers are all with
based on decisions already taken by the STF.
"We are confident in what the Supreme Court has already decided. I did not present a thesis
innovative, I brought together everything the Supreme Court had already decided in a single thesis,
mostrando que a Justiça do Trabalho não está respeitando [precedentes]”, diz.
The lawyer recognizes that there is a legislative vacuum in Brazil regarding the activity of
app driver, but for him, the lack of regulation does not lead to a
automatic registration relationship in the work card. “It is a civil contract,”
states.
The lawyer's thesis gained strength after the PGR (Attorney General's Office)
change its position on the apps. Previously, the PGR believed there was a link
employment by the CLT, now talks about self-employment.
In a note, Rappi states that the discussion will be “an important signal” for
digital platforms, bringing legal security and ensuring “continuity of this
economic sector”.
Article originally published on February 9, 2024, on the Folha de S. Paulo website.
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