Law n.º 13.429/2017, which was sanctioned on March 31, 2017, regulates the services provided through outsourced manpower ("terceirização"), as well as changes the legislation regarding temporary employment.
We indicate below the main points contained in the sanctioned law, mostly in regards to the practical changes in these hiring modalities:
About the Temporary Employment Contract:
- Possibility of using the temporary employment contract in order to meet the so-called "complementary demand of services" (understood as the demand resulting from: unforeseeable factors; when foreseeable, factors that are intermittent, periodic or seasonal in nature; or, even in order to replace employees on strike, when the strike is considered illegal or abusive);
- extension of the maximum duration of the temporary employment contract for up to 180 days, consecutive or not, which may be further extended up to 90 additional days, consecutive or not;
- in the event of termination of the period, the temporary worker may only provide services to the same contractor after 90 days from the end of the previous contract;
- minimum share capital requirement of BRL100,000.00 for registration of the temporary employment agency;
- requirements for the validity of the contract between the temporary employment agency and the contractor: (i) qualification of the parties; (ii) justification for temporary work; (iii) term of service; (iv) value and, (v) provisions about health, hygiene and safety of the workers;
- for temporary employees hired for up to 30 days, it is possible to establish a system of direct payment of the installment fees to the Severance Indemnity Fund (FGTS), proportional vacations and proportional Christmas Bonus (13th salary);
- subsidiary liability of the contractor for non-compliance with labor rights relating to the period in which the work occurs.
About the Outsourcing of Services ("Terceirização"):
- the impossibility of forming an employment relationship between the workers, or partners of the companies that provide services, whatever their line of business, with the contracting company;
- minimum capital share requirement (ranging from BRL10,000.00 to BRL250,000.00, according to the number of employees) for the company to provide services;
- the possibility of outsourcing all activities of the contracting company (both the so-called "supporting activities", as well as the "leading activities");
- the responsibility of the contracting company to guarantee the safety, hygiene and health conditions of the workers, when the services are rendered on its premises, or place previously agreed to in contract;
- the contracting company may extend to the services-providing company's employees the same facilities of medical, emergency and meal services for its employees on the premises, or in a place previously agreed to in contract;
- subsidiary liability for labor and benefits obligations related to the period in which the services are rendered;
- requirement for the validity of the contract between the services-taking and the services-providing companies ((i) qualification of the parties; (ii) the justification for the outsourced work; (iii) term of delivery; (iv) value and, (v) provisions about health, hygiene and safety of the workers).
In summary, according to the tenor of the already denominated "Outsourcing Law" (or "Lei da Terceirização"), the possibility of a company to use outsourced manpower without any restrictions was opened up, i.e., it is possible to outsource all the activities performed, including those related to the core business, which was not permitted by the Labor Courts before this Law.
In relation to temporary work, though, the changes were less drastic, but they are still considerably relevant.
It is worth emphasizing that the mentioned Law was sanctioned with partial veto by the Brazilian Presidency. According to the Bill sent to the presidential sanction, initially there was the possibility of the maximum term of the temporary work established by the law to be extended through a collective bargaining agreement, but this permission was vetoed by the President.
The referred vetoes, however, will be voted on by the Chamber of Deputies, which can maintain, or not, these restrictions established by the President. Besides this, it is important to note that there is another Bill currently being drafted in the Federal Senate (PL 4.330/04), that was already approved by the Chamber of Deputies, and also concerns the outsourcing of labor. If approved, this second Bill will allow the Executive Branch to select the legal provisions to be vetoed on either Bill.
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This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.