Gilmar Mendes’s decision enhances dispute between STF and Labor Justice

The decision taken by Minister Gilmar Mendes on Monday (14), suspending all lawsuits dealing with the recognition of the employment relationship resulting from the hiring of a legal entity, the call, begins to another round in the arm wrestling between the Labor Court and the one, which has lasted more than two years.

On the one hand, labor justice defends the idea of ​​the vulnerability of the worker in the face of suspicious hiring. On the other, the Court argues that the labor reform established more than seven years ago provides for the possibility of new arrangements. Many lawyers heard by Infomoney recognize that the conflict between STF and Labor Justice has been generating legal uncertainty.

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And in this arena the fighters begin to organize. The Brazilian Bar Association Section São Paulo (OAB SP) expressed discontent with the measure on Tuesday (15), issuing a note at the end of the day contesting the decision of the STF minister. According to the entity, the suspension, taken within the scope of the theme 1,389 of the general repercussion, concerns the paralyzing relevant actions to guarantee fundamental rights.

The OAB also reaffirms the constitutional jurisdiction of the Labor Justice to judge actions involving employment bonds in hiring legal entities. “The lawfulness of these contracts should consider the concrete facts of each case and follow the constitutional and procedural principles that govern labor law in Brazil,” he said in a statement.

The National Association of Attorneys and the Labor Prosecutor (ANPT), which represents members of the Labor Prosecutor, also harshly criticized the decision of Gilmar Mendes. In a statement, the entity states that the decision of the minister “disfigured the very reason for being of the Labor Court and denies the jurisdiction of articles of the CLT.”

In his argument, the minister stated that the measure responds to the overload of actions on the subject that reaches the Supreme Court, which occurs by systematic non -compliance with guidelines directed to the Labor Court. For him, in practice, the Court has active as a review instance of labor decisions.

To have the size of the problem, from January to August 2023, the Supreme Court complied with 63% of the 324 companies to annul Labor Court decisions that recognized employment relationship, according to a survey by the Getúlio Vargas Foundation of São Paulo (FGV-SP).

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The question of pejotization involves a significant number of cases in which the possible existence of fraud in the use of the legal entity is discussed to provide services, which would be the proper to an employed worker.

According to the chairman of the OAB-SP Labor Law Commission, Otavio Pinto e Silva, there are no exact numbers of how many cases with this content they reach the courts. “But in the center of the clash is the increase in the number of complaints taken to the Supreme Court. It is estimated that five thousand of them have already been taken to court, allegations that the Labor Court would have disrespected decisions of the court,” says the representative of the OAB.

For Silva, it is not correct to say that the Labor Court is disrespecting the Supreme Court, because in several cases, as an analyzed by Gilmar Mendes himself, the court was contrary to the worker’s request and applied the case law of the Supreme Court.

Find out what will be decided by the STF

– Competence in proceedings that discuss the existence of fraud in the civil/commercial contract for the provision of services – whether civil or labor justice;

– Who is the burden of proof regarding the eventual existence of fraud in the contract;

– The lawfulness of the hiring of a legal entity or autonomous worker for this purpose.

What the experts say

According to lawyer Henrique Melo, NHM Advogados Labor Partner, the STF had already edited the theme 725, whereby outsourcing validated more broadly, in the same terms as the 2017 labor reform. Even so, the decisions of labor justice, in many cases, walked towards recognizing employment bond, which led companies to resort to the STF even even exhausted all roads recourse in the labor sphere.

“This path has been widely used by companies precisely to resort to the Supreme against unfavorable decisions that will contradict theme 725,” said Melo.

According to Melo, in December 2024 Subsection I specialized in individual labor courts had already welcomed two new incidents of repetitive magazine resources (IRRs), aiming to re -establish guidelines on topics involving outsourcing and pejotization, in an attempt to create jurisprudence for this type of process and end the controversies. “However, with this decision now, the Supreme Court eventually overlaps with the proposed by the TST.”

For lawyer Felipe Mazza, coordinator of the EFCAN LAW LAW LAW LAW, the issue is extremely delicate and expensive to labor law as a whole, because for at least 20 years it has been much discussed in actions in the courts. Historically, pejotization has always been treated as fraud to labor contracts. For Mazza, the Labor Court has always seen in practice a way for the employer to dodge responsibility and the employee to lose a series of rights.

“Now, depending on the final decision of the Supreme Court, it is quite possible that there is a drastic change in labor relations, and can mean the end of labor law as we know today,” says the EFCAN coordinator, adding that the change can make the hiring of “travated legal entities more interesting”, and may neglect labor rights that result from the effort and struggle of over 200 years. And what is worse, to decree the incompetence of the Labor Court to judge actions that deal with these contracts, further precarious the labor relationship.

“Even if one talks about the biggest possibility of negotiation, what will happen is that the employee/PJ will eventually give in to the imposition of the employer, who will dictate unfavorable rules, leaving the worker unprotected.”

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For labor lawyer Peterson Vilela Muta, from LO Baptista Advogados, the discussion has grown so much because, in large part, there is the benefit of exemption from the payment of procedural costs and attorney’s fees in labor proceedings, as a way of giving free access to justice.

However, today’s labor decisions no longer have so much tendency to be pro-employment, bringing the evidence very much. Therefore, depending on the case, the decisions have accepted the employers’ arguments, according to Labor lawyer Evely Cavalcanti, from Serur Advogados.

“The labor reform approved in 2017 began to allow outsourcing, including the end activity of companies. And since 2018 the STF argues that it is possible to outsource all activities, as long as it occurs without subordination and exclusivity. And the Labor Court has followed this,” he recalled.

But what is expected now is that there is a pacification in this relevant matter, which have been discussed for a long time by the high Brazilian cuts, with opposite interpretations, according to lawyer Armando Santos Júnior, partner of the labor area of ​​Andrade GC Advogados.

“On the one hand, we have the Superior Labor Court (TST), which does not see another form of hiring beyond that protected by the CLT. On the opposite side, it is the highest court of the judiciary, which has been reforming several decisions and ratifying other forms of hiring other than the clear dispute between justice, where the TST focuses on what would be more beneficial to the employee/service provider and the STF in the evolution of work and work society, admitting other hiring modalities ”.

This change is precisely what can give more legal certainty to companies, according to Briganti Advogados Business Law lawyer Juliana Raffo. “The impact will be huge, especially after the entry into force of the 2020 Economic Freedom Law, when the PJS contract model gained strength and which is not always the result of attempt to circumvent labor law, but a format used as better to the interests of the parties.”

In the daily life of business law, professionals are required to evaluate labor risks that the client can have, precisely for the legal insecurity that stems from the lack of standardization of understanding on the subject in the judiciary. “Especially when we deal with foreign companies that find it difficult to understand this ‘jabuticaba’ from our country, which is expected to be resolved now by the STF,” says Raffo.

Thus, it is expected that the measure reinforces the predictability of decisions of the judiciary as a whole, according to Lara Sponchiado, lawyer specializing in law and labor process at BBMOV-Lawyers Society.

“This debate is relevant because it can change the current understanding of the limits of labor justice,” says lawyer Bruno Okajima, partner at the Autuori Burmann Law Firm.

In a statement, the OAB-SP says he only hopes that “the issue will be debated with serenity and that the procedural technique is observed, and it is up to the STF to guard the Constitution, but the manifestations of all instances of labor justice in the exercise of the jurisdiction is respected by our greater law.”