There is much discussion about the potential liability of the construction site owner for labor debts resulting from contracts signed directly with the contractor hired for the construction.
Item IV of Legal Precedent 331/TST stipulates that "the default of labor obligations by the employer implies the secondary liability of the contracting party of the services for such obligations, provided such contracting party took part in the legal claim and also figures in the legal decision/sentence".
Adopted as grounds to secure labor rights in cases of secondary liability, item IV of the referred Legal Precedent 331/TST deals with the hypothesis of manpower outsourcing, in which the lack of payment of labor charges by the services provider may result in the secondary liability of the contracting party.
However, specifically with regard to the construction site owner, TST's Jurisprudence Guidance No.191 ("OJ 191") provides that "due to the inexistence of a specific legal provision, the construction agreement between the site owner and the contractor does not trigger joint or secondary liability with regard to labor obligations assumed by contractor, except when the site owner is a contractor itself or a real estate developer".
Therefore, OJ 191 was intended to consider the construction site owner jointly or secondarily liable for labor charges of a contractor when such site owner is a contractor itself, or a real estate developer that hires a contractor to carry out its core business, thus illegally outsourcing it.
According to OJ 191, in the other cases related to the hiring of a contractor by the construction site owner who is not a contractor or a real estate developer, there is no secondary or joint liability for labor debts owed by the contractor. It should be noted that the main guideline of OJ 191 does not make any distinction with regard to the site owner (if legal entity or private individuals), neither to the type of construction to be performed (if destined for residential use, if essential or not to the performance of the economical activity of the site owner, etc), but only to the main activity of the construction site owner (if a contractor or a real estate developer).
Although there are court decisions that still differ on the responsibility of the construction site owner who is neither a contractor nor a real estate developer, recent decisions (such as in process No. 0011154- 75.2016.5.03.0024 of the 24th Lower Labor Court of Belo Horizonte) have been contributing to the consolidation of the OJ 191.
In the case in question, despite the fact that the defendants were dismissed for failing to appear at the hearing (which gives rise to the presumption of truth of the matter of fact of the claim), when analyzing the request to recognize the liability of the second defendant (the construction site owner) the Judge decided to exclude the site owner's liability for the payment of the sums claimed by the claimant, precisely because the construction site owner was not a contractor or real estate developer, therefore applying TST's OJ 191. As there was no appeal from the claimant, the foreclosure of the court decision will follow only against the contractor.
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