Terceirização: responsabilidade do tomador de serviços, processamento da execução

• Autor(a) principal: Gonçalves, Lúcia Durão
• Data de Publicação: 2011
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/36613
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO DO TRABALHO

Outsourcing is an administrative and economic phenomenon that has been increasing in the capitalist market, consisting of hiring a specialized organization, named the service company, to perform a particular job in another company, named the contracting company. In Brazil, it is being allowed for the contracting company to outsource some activities, i.e., to hire a third-party to perform activities that are not connected with the main activity in the contracting company, provided the personal or usual presence of individual nature, or subordination from employees to the contracting company do not exist. It is considered illegal to outsource services that are directly connected to company’s main line of business. As for protecting the worker, the contracting company becomes responsible for the labor rights. However, what is negotiable is how the companies are made liable. Today, private companies have joint and concurrent liability when the outsourcing is considered illegal, taking into consideration the direct employment bond between employees and the contracting company, and, therefore, equality of salary and benefits granted to employees under the same category. When outsourcing is considered legal, the contracting company only responds secondarily, i.e., will respond for labor rights unless the service company succeeds in doing so. On the other hand, the public company will always respond secondarily, even when outsourcing is considered illegal, as the Constitution prevents the employment bond with the government unless preceded by Selective Exam. The discussion involved in legal outsourcing in the private company, as well as the legal and illegal outsourcing in the public company, is the salary equality. Our current legislation claims that, to consider salary equality, both petitioner and paradigm ought to be subordinate to the same employer. Yet, we cannot stay attached to an old rule that does not match the present situation, which originated in a completely different market from the one back when the law was passed. This matter is still largely discussed among the classes, without reaching a common sense. It is understood that it does not matter the kind of outsourcing, the contracting company should have joint and concurrent liability, considering both civil and consumer legislation. Making one liable this way might generate no problems for workers when claiming their rights, whereas both companies may be executed to provide workers with their credit. However, the rule now is being made liable secondarily, where discussions on how to execute and the limits for execution along with the actual employer. The issue consists of when it is appropriate to start carrying out with the execution along with the contracting company. Labor rights are granted, once they have feeding purposes. Therefore, it cannot be required for workers to take whatsoever but net assets and cease any other means of payment by the service company. Thus, after implementing an unsuccessful attachment, it is considered insolvency by the service company, making it legal to start carrying out the execution along with the contracting company. The mentioned procedure is currently implemented. When the disidentification of owners from the legal entity is implemented, the owner, natural person is made responsible secondarily. Likewise, it is not necessary for the worker to first execute the owners so that the execution along with the contracting company can be implemented. Firstly because the liability, for owners as well as for the contracting company, is secondary. Moreover, the contracting company holds an enforcement order, which is not held by the owners. Any other treatment to the execution would involve causing a major loss to the worker, for the benefit of the contracting company, which agrees to take the risk of the economic activity, the risk of the contract, and is considered guilty in eligendo and in vigilando