A responsabilidade do poder público pelo inadimplemento dos encargos trabalhistas na terceirização na administração pública

Abstract

The objective is to analyze the atribution of the responsibility of the state, as a service contractor, when there is a default of labor charges in outsourcing contracts. At first, an overview of the institute of labor outsourcing is exposed, based on the bibliographic inquiry of specialized doctrine. Then, the evolution of this triangular relationship of labor in the Brazilian legal order is depicted, through the examination of the law related to the innovations promoted by the labor reform. The specific normative and jurisprudential study of the conformation of subsidiary liability of the public entity is also deepened, especially after the amendments to Precedent N° 331 of the Superior Labor Court, with the judgment of the Constitutionality Declaration N° 16 by the Supreme Federal Court .Therefore, in view of the practical emptying left by ADC 16 / DF regarding the question of the probative burden and the edge for the assessment of the evidence by the judge and the existence of conflicting judicial decisions regarding the attribution of patrimonial responsibility for charges not fulfilled by the service provider company, when the servisse contractor was the government, the Supreme Court was again urged to manifest itself. Then, the study of the current understanding of the subject, pronounced in constitutional appeal N° 760,931 / DF, is carried out, which established the thesis that “the default of the labor charges of the employees of the contractor does not automatically transfer the responsibility for the governmental entity contractor, either in solidarity or in a subsidiary liability, according to art. 71, § 1°, of Law N°8.666 / 93”. Lastly, through research of court decisions in the Superior Labor Court and Regional Labor Courts, after the paradigmatic case acknowledged in RE 760.931 7 DF, the scenery of legal insecurity was verified due to the non-determination of a uniform position about the burden of proof and the edge of the state´s oversight duty, as well as the fragility of workers' social rights from the perspective of constitutional premises.