A inadequação do critério de atividade-meio como hipótese caracterizadora da licitude do contrato de terceirização

Abstract

This research deals with the core activity and non-core activity criteria to characterize the lawfulness of the outsourcing contract. Analyzes the effects of globalization on the labor market and business dynamics, addressing the deleterious effects of production restructuring due to the development of new technologies. Points to the way in which attempts to flexibility arising from the decentralization of business activities affect classical principles of Labor law. Exposes the need for modern enterprises to establish a network of interactions in order to optimize the production process, pointing outsourcing as the main technique to decentralize business. Considers outsourcing as the primary corporate management model based on flexibility and precariousness of labor relations. Analyzes the concept of outsourcing and the evolution of the theme in legislation and jurisprudence showing the peculiarity of the way in which this phenomenon has developed in Brazil. Covers the Precedent No. 331 of the TST (Superior Labor Court), conceptualizing the core activity and non-core activity criteria, chosen by the Court to characterize the lawfulness of the outsourcing contract. Demonstrates the impossibility to distinguish between purely instrumental activities and core activity of the company. Points to abuses resulting from the adoption of this criterion by TST, as it allows, in practice, the mere leasing of hand labor. Indicates other criteria that can be used to regulate the outsourcing contracts. This work is developed from two types of research: literature and jurisprudence.