Prestação de serviços pejotizada: análise à luz da lei de liberdade econômica e da teoria dos vícios de consentimento

Abstract

The world of work is constantly evolving. As a result of these changes, new forms of organization of productive factors have emerged, along with rearrangements in the capital/labor relationship and the conflicts inherent therein. These new modalities are difficult to characterize since, although they are generally beneficial to wealth creation, they may conceal new forms of worker exploitation. In recent years, a major change has taken place in this area with the decision of the Federal Supreme Court (STF) that ruled that the unrestricted outsourcing of companies’ core activities is constitutional. In the same vein, the Court also considered valid labor relations not subject to the Consolidated Labor Laws (CLT). The legitimacy of these new forms of work organization, however, does not rule out the possibility of a court ruling them invalid, and the consequent recognition of the existence of a concealed employment relationship, if the requirements for this are met. In this context, this study sought to investigate how the general parameters for invalidating legal transactions can be applied in the analysis of the (in)validity of business contracts in which there is the practice known as "pejotização"(the practice of compelling employees to register as individual companies to avoid labor laws), based on the principles and institutions of contract law, such as its traditional principles and the so-called social principles, the parameters of interpretation and integration brought about by the Economic Freedom Law, as well as the rules relating to defects of consent.