Minister Gilmar Mendes of the Federal Supreme Court (STF) decided on Monday (14) to suspend the processing of all proceedings in Brazilian courts that discuss the legality of the so-called “pejotization”, in which companies contract service providers as a legal entity, avoiding creating a relationship of formal employment relationship. 
The decision was made after the supreme recognized, in a vote finished last Saturday (12) (theme 1389) general repercussion of the subject. This means that the ministers have selected a process of such a way for their outcome to serve as a parameter for all similar cases, unifying the understanding of Brazilian justice as a whole.
The theme has placed the Supreme on a collision route with the Labor Court at least since 2018, when the Court deemed to be unconstitutional a summary of the Superior Labor Court (TST) that barred the pejotization.
At the time, the Supreme Court decided, by majority, to release Brazilian, private or public companies, to outsource even their end activities, and not just support services such as cleaning and surveillance. Since then, this understanding has based on thousands of decisions of the Ministers of the Court to overthrow employment bonds recognized by the Labor Court.
For the majority current of the Supreme Court, the decision on outsourcing guarantees the updating of labor relations for a new labor reality, giving greater “freedom of productive organization of citizens” and validating “different forms of division of labor”, as written by Gilmar Mendes, rapporteur of the theme in court.
By recognizing the general repercussion of the matter, Mendes stressed the large volume of resources that come to the Supreme Court every year, of the type called Constitutional Complaint, in which companies seek to reverse the recognition of labor bonds, alleging non -compliance with the Court’s decision on unrestricted outsourcing.
The minister gave as an example the first semester of 2024, during which time they were judged by the two Supreme Classes more than 460 complaints “involving decisions of the Labor Court that, to a greater or lesser extent, restricted freedom of productive organization”, described Mendes. In the same period, there were 1,280 monocratic (individual) decisions on the subject.
“As evidenced, the systematic non-compliance with the orientation of the Federal Supreme Court by the Labor Court has contributed to a scenario of great legal insecurity, resulting in the multiplication of demands that reach the Supreme Court, transforming it, in practice, a review of labor decisions,” Mendes wrote in this Monday’s decision.
The appeal that will serve as a paradigm on the subject deals with the recognition of employment between a franchisee insurance broker and a large insurer, but Mendes stressed that a possible general repercussion thesis should have a broad scope, considering all the hiring modalities of self -employed worker or legal entity to provide services.
“It is essential to address the controversy broadly, considering all modalities of civil/commercial hiring. This includes, for example, contracts with commercial representatives, real estate brokers, associate lawyers, health professionals, artists, IT professionals, motoboys, delivery, among others,” said the minister.
There is no definite date for the Supreme Court to guide the process for judgment by the plenary. When this occurs, the ministers should decide on three already predefined points:
1) If the Labor Court is the only competent to judge the causes in which fraud is discussed in the civil service contract;
2) If it is legal for companies to hire autonomous workers or legal entity for the provision of services, in light of the understanding signed by the Supreme Court in the judgment on the outsourcing of core activity.
3) Define whether the employee or employer is responsible for proving whether a service contract has been signed with the purpose of defrauding labor relations or not.
Uberization
The theme of pejotization is also related to the phenomenon called “Uberization”, which deals with the provision of services by self -employed mobile applications, such as drivers of the Uber platform, for example.
In February last year, the Supreme had already recognized the general repercussion in a Uberization Appealin which it should define whether or not there is a formal employment relationship between transport application drivers and the companies responsible for the platforms (theme 1291).
