Outsourcing

Outsourcing occurs when a company (the client) hires another company to provide a specific service, acting as a labor intermediary. For example, it is very common for banks and other companies to outsource their establishment's cleaning services, hiring another company to provide this service.

In this sense, when a company outsources certain services, it transfers the risks and part of the costs of hiring the workforce, since the contract ceases to be labor (company with worker) and becomes civil or commercial (company with company) (MARCELINO, 2007, p. 60).

From the manager's perspective, the logic behind this practice is to provide more options and efficiency to various sectors of the company, and as already mentioned, to reduce the costs involved, since there will be no direct hiring of employees to perform that activity.

When the contractor outsources a cleaning or security activity, it will only have the so-called subsidiary liability, thus having the benefit of order, responding judicially in the event of non-payment of labor benefits by the outsourced company.

On the other hand, from the worker's point of view, outsourcing makes labor relations precarious, as it generally results in lower wages, worse environmental conditions, and weaker union representation (VIANA, 2014, p. 235). In this sense, for service providers to make a profit, they must indirectly deduct the difference from their workers' wages, as if they were charging a fee, because otherwise, their activity would be economically unviable (VIANA, 2014, p. 234).

Before the Labor Reform (Law No. 13,467, of July 13, 2017), only the outsourcing of non-core activities was permitted. That is, a company could only outsource services that were unrelated to its core business but contributed to achieving its ultimate business objective. In other words, a bank could not hire a company to provide banking services, only other services such as cleaning, security, transportation, and others.

With the Labor Reform, outsourcing of the company's main activity (core activity) was also permitted, meaning a school or college could outsource teaching services, for example.

The Reform also brought the guarantee that the service provider's employees (outsourced workers), while carrying out activities on the contractor's premises, will have, on an equal basis with the company's direct employees, the same food, medical or outpatient care, facilities suitable for the provision of services, adequate training, as well as sanitary conditions and health and safety protection measures at work.

Another point brought by Law No. 13,467/2017 is that an employee who is dismissed may not provide services to this same company as an employee of a service provider company before the expiration of a period of eighteen months, counting from the employee's dismissal.

However, outsourcing will be considered illicit or illegal when, in practice, it is found that there is a personal relationship and subordination between the outsourced employee (employee of the service provider) and the recipient.

Thus, once illegal outsourcing and the identity of functions (performance of the same functions) between the employee of the service provider and the employee of the service provider have been characterized, there must be salary equality between them.

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REFERENCE

ASSIS, Rubiane Solange Gassen. Outsourcing of Core Activities: A New Reality?. Judicial School of the TRT 4th Region, Porto Alegre, ed. 211, 2018. Available at: https://juslaboris.tst.jus.br/bitstream/handle/20.500.12178/129494/2018_assis_rubiane_solange_terceirizacao_atividade.pdf?sequence=1. Accessed on: December 19, 2020.

MARCELINO, Paula. After all, what is outsourcing? In search of tools for analysis and political action. Revista Pegada Eletrônica, Presidente Prudente, v. 8, ed. 2, 2007. Available at: https://revista.fct.unesp.br/index.php/pegada/article/view/1640. Accessed on: December 19, 2020.

VIANA, Márcio Túlio. The hidden faces of outsourcing: a mix of old texts and new ideas. Journal of the Superior Labor Court, Brasília, v. 80, n. 3, p. 228-238, Jul./Sept. 2014.