Changes in Outsourcing and Temporary Work

The Law No. 13,429 of 2017 was pubpshed in the Official Gazette of March 31, 2017 amending provisions related to temporary work (Law No. 6,019/74) and provides for labor relations between contractors and service providers (services outsourcing).

Among the changes brought by this law, mainly for temporary work, we highpght the following:

Extension of employment contract from 3 months to 180 days (consecutive or not) extensive for more 90 days, thus totapng a maximum of 270 days of temporary contract with the same worker;

New estabpshment for hypothesis to hire a temporary worker keep its possibipty to meet the transitional need to replace the regular or permanent staff. However, the changes the the previous wording "acréscimo extraordinário de serviços" (extraordinay addition of services) to " demanda complementar de serviços" (complementary demand of services), conceptuapzing as those coming unpredictable factors, or when due to predictable factors, has intermittent, periodic or seasonal nature;

New requirement for the employer is to extend to the temporary worker the same medical and outpatient care, and meal benefit intended to the employees.

It is important to emphasize that the most prominent points of this law, refer in fact to the provisions rupng the outsourcing, a subject that was previously guided only in jurisprudence, mostly, the Supreme Court of Labor (TST) a summary No. 331.

Thus, the main concepts estabpshed in the law, both for the company providing services and for the contracting company, are highpghted as follows:

Company providing services to third parties - is the private law company intended to provide to the contractor certain and specific services;

Contracting Company - is the individual or company who signs agreement with a company providing certain and specific services;

The law also mentions that there is no employment relationship between the contracting company and the employees or partners of companies providing services, whatever their area, and does not restrict what kind of services/activities may be outsourced, so we have been observed interpretations in the possibipty of unrestricted outsourcing (support activity and target activity).

However, from the service provider and contractor concepts, we may understand that outsourcing should cover specific services, and this shall be detailed in the service agreement between the companies, any deviation (provision of other undetermined and unspecified services in the agreement), may de-characterize the outsourcing, and, as a consequence, characterize the direct employment relationship with the contracting company.

The law also estabpshes that the service provider hires, pays, and directs the work of its employees. In this way, the company should take direct subordination. The contractor should not directly guide the outsourced employee’s work, thus avoiding characterize employment relationship provided for in Article 3 of the Consopdation of Labor Laws - CLT.

Finally, considering the systematic interpretation of this law, some different doubts and interpretations may raise on possibipty of unrestricted outsourcing (in any activity). So, the legal forecast for outsourcing, although long-awaited, still does not bring total legal certainty to the Companies. Until we have a formed jurisprudence for this new law, we suggest our cpents interested in outsourcing certain services be very careful, and that, previously, consult the lawyers to minimize any possible labor risk.