‎Brazil News

WORK JUSTICE

 

 

 

Headquarters of the STF, in Brasília / Credit: Antonio Augusto/SCO/STF

The 2nd Panel of the Federal Supreme Court (STF) revoked, by 3 votes to 2, the decision of the Regional Labor Court of the 1st Region (TRT1) that recognized an employment relationship between the stockbroker BGC Liquidez and an investment agent, who received a average commission of R$100 thousand per month. The majority of the class highlighted the Court's understanding established in Theme 725 of general repercussion, which considers outsourcing for core activities valid as a form of employment contract.

 

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In the case in question, a man had been hired with a formal contract by the consultancy in 2005. He worked as a CLT until 2007, then started providing services as a PJ, and in 2015 he was admitted as a CLT again. For TRT1, even when the service was provided as a PJ, there was an employment relationship.

 

Among the items that characterize this relationship were subordination, in which the broker defined the work guidelines, and hierarchy, as the court considered that the agent obeyed superiors and had working hours established by the company.

 

 

The STF, on the other hand, overturned the employment relationship thesis, arguing that the TRT1 disrespected the understanding reached by the Supreme Court in relation to outsourcing. The judgment of Complaint (RCL) 53.6888 was tied and had a casting vote from Minister Gilmar Mendes, in a session last Tuesday (10/17).

 

For the dean, Labor magistrates have acted against Court precedents in relation to new types of employment contracts. For him, the “Labor Court drew a dislocated conclusion from the fateful reality of the labor market and the jurisprudence of this Court, recognizing an employment relationship in relation to the provision of services, which lasted for many years in an extremely profitable way for the appellant, who earned commissions exceeding R$100,000 per month on average.”

 

The minister also highlighted that the Securities and Exchange Commission (CVM) allows the activity of autonomous agents, whether they are individuals or legal entities. Mendes stressed that there is no illegality in hiring an employee for core activities and that, by recognizing an employment relationship in this case, TRT1 “violates the understanding established in ADPF 324”.

 

They also voted in favor of impeaching ministers Nunes Marques and André Mendonça. Ministers Edson Fachin and Ricardo Lewandowski, rapporteur of the complaint, who had voted before retiring, were defeated.

 

BGC Liquidez was defended by lawyers Maurício Pessoa and Mona Hamad Leoncio, from Pessoa Advogados.

 

GRASIELLE CASTRO – Editor of the website in São Paulo. Responsible for policy coverage. She was a reporter at Correio Braziliense, reporter and editor at HuffPost and branch coordinator at Metrópoles.