Appeal analysis ended up not being included on the agenda on November 16th and there is still no date for it to be judged
The president of STF (Supreme Federal Court), Minister Roberto Barroso, postponed the analysis of the appeal against modulation of effects recognized by the Court in a decision that validated outsourcing in all business activities.
The case was on the agenda for Thursday (November 16, 2023), but was postponed due to the trial that dealt with the retroactive collection of taxes from companies, which took up the entire session.
The president of the Court stated that he should analyze next week’s agenda to fit the topic and has already said that the analysis should also occupy a large part of the agenda.
“Next week I will see exactly what the agenda is, but this issue will also involve some degree of complex discussion like the one today, so it is better that we try to address it entirely in the same session”said Barroso in the last minutes of Thursday’s session.
In 2018, the Court decided, by 7 votes to 4, that outsourcing is legal in all stages of the production process, whether so-called middle activities or end activities for all areas of activity. With the STF’s decision, any company could outsource all services, whether secondary or not.
Here is the thesis established by the Court:
- “Outsourcing or any other form of division of work between different legal entities is permitted, regardless of the corporate purpose of the companies involved, maintaining the subsidiary responsibility of the contracting company.”
The analysis of the motions for clarification presented by the Cenibra (Japanese-Brazilian Cellulose) began in the virtual plenary of the STF on September 8 this year, but was highlighted by minister Cristiano Zanin. With this, the Court must restart the discussion in the physical plenary.
At this stage of the trial, the ministers were analyzing an appeal against the call “effects modulation” applied by the Court in June 2022 to limit the STF’s decision only to cases that were being processed in court on the date of the trial, on August 30, 2018. Cases already judged before the date would be based on the summary 331 of the TST (Superior Labor Court), which allows the outsourcing of core activities.
In the appeal, Cenibra says that the ruling was “omitted” about Labor Reform, sanctioned in 2017 by Michel Temer, which already allowed the outsourcing of all production activities. Furthermore, it states that the “late modulation” than was determined by the STF itself “it would bring much more harm to legal security than the situation we seek to avoid”.
The rapporteur of the action, minister Luiz Fux, voted for the appeal to be denied and for the modulation of effects to remain valid. Here’s the complete of the vote (PDF – 277 kB).
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