Terceirização e “quarteirização em cadeia”: uma análise conceitual e da responsabilidade solidária trabalhista da administração pública

Abstract

Outsourcing is widely used in the Brazilian labor market, forming a trilateral relationship between workers, service providers and borrowers. “Chain fourth-party outsourcing” has emerged as an expansion of this subcontracting, especially in public administration. However, the lack of specific regulations creates legal uncertainty, especially as regards responsibility for the labor charges of the workers involved. In view of this, this study sought to investigate the following question: can the Public Administration be held jointly and severally liable for the labor charges of “outsourced workers”? The general objective of this study was to analyze the feasibility of the Public Administration being held jointly and severally liable in the context of chain outsourcing, considering its legal and social impacts. To this end, it examined the specific objectives: a) analyzed how outsourcing and fourth-party outsourcing occur within the Public Administration, and their legal possibilities and limitations; b) analyzed fourth-party outsourcing, verifying its different forms of application in the public and private sectors; c) the liability of the Public Administration was investigated, in light of the bidding rules, Precedent 331 of the TST and recent jurisprudential innovations, especially those brought about by ADPF 324/DF; d) how structural subordination, present in fourth-party outsourcing, impacts the legal security and social protection of workers, analyzing whether this factor can justify the joint and several liability of the Public Administration. ; e) the applicability of joint and several liability in “chain outsourcing” to public entities was investigated. The methodology used was descriptive-exploratory, based on a literature review and documentary analysis. It is concluded that there is a constant flexibilization of worker protection in the judiciary; that the application of subsidiarity was a jurisprudential construction and that for labor law, it slows down access to labor credits; that joint and several liability is a more effective and fairer alternative for workers to be able to receive their labor credits; and that it should be applied even before the Administration.