In Brazil, there is no specific law, the practical cases are subject to the interpretation of Supreme Court of Labor (TST) Precedent 331 and jurisprudential construction that, in summary, understands that outsourcing is only possible in Brazil for middle-activity activities and not for the final activity of the contractor, thus considering the beneficiary’s liability for the subcontractor’s default as a subsidiary.
There are currently bills in Congress on the subject, especially Bill 30/2015 (PL), whose main characteristic is not to limit outsourcing only to so-called middle activities, but also to allow the outsourcing of end activities. If approved, this new legislation will also provide a new scenario for outsourcing within the private sector in Brazil.
The Law Project (Projeto de Lei—PL) also foresees that the beneficiary of outsourced services must supervise the payment of salaries, holidays, transportation vouchers, the FGTS (Severance Pay Fund), as well as the labor and social security obligations of the subcontractor employees. And, that in case of default, the contractor may respond jointly or subsidiarily, depending on the degree of diligence with which it acted in the supervision of outsourcing. For some contracts, there will also be a requirement to provide pecuniary guarantees by the beneficiary.
The PL maintains withholding taxes provided in article 31 of Law No. 8,212 / 1991 and Articles 7 and 8 of Law 12,546 / 2011, i.e., that the contracting company remains responsible for the anticipated payment to the INSS of 11% of the invoice in the name of the subcontractor, who may compensate the beneficiary when collecting contributions due on the payroll of its employees. This system is already applied currently to contracts outsourcing cleaning services and conservation, surveillance and security and temporary work.
In other outsourcing agreements, the service beneficiary will be required to collect the equivalent of 20% of the payroll of the service provider, discounting the amounts of invoices due.
The outsourcing regulation will benefit contracting companies and society as a whole, by means of providing greater legal certainty among companies and reducing labor costs, encouraging outsourced companies to have excellence in service delivery to meet the expectations of service takers and meet the legal requirements. The service beneficiary may also file an action to recover what he/she has spent with legal claims related to the non-payment of labor rights by the outsourced employees.
Thus, although in the first moment the PL gives the impression of higher costs in outsourcing, the intention is to protect workers’ rights, but also provide greater legal and financial security for the contractors. An important step for companies in Brazil.
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Priscila Márcia da Silva Santos is associate at Pacheco Neto Sanden Teisseire Law Firm.