by Luiz Fernando Plens de Quevedo
Law 11,442/2007 has long been the subject of discussion in the Labor Courts, due to the limits imposed by Summary 331 of the Superior Labor Court (TST) on outsourcing core activities and the regulation of road freight transportation for third parties without an employment relationship, through Independent Cargo Carriers (TAC) and Road Freight Transportation Companies (ETC). Disregarding the legal provision, the Labor Courts — sometimes divided, often unanimous — turned a deaf ear to the Law and indiscriminately applied TST Summary 331 to recharacterize contracts entered into under Law 11,442/2007 and, treating the types of contract provided for in the law as if they were outsourcing, declared an employment relationship on the grounds of outsourcing of core activities.
However, Law 11,442/2007 primarily assists Carriers, whether in carrying out and organizing their regular activity or in providing greater dynamism and flexibility where a larger volume of cargo movement is required. The absence of an employment relationship between the parties to the contracts provided for in the Law is express — “relationships arising from the cargo transportation contract referred to in art. 4 of this Law are always commercial in nature and shall under no circumstances give rise to an employment relationship.”
Even so, the Labor Courts apply TST Summary 331 to the objective detriment of Law 11,442/2007. There are even Regional Courts in which disregard for Law 11,442/2007 is unanimous. At the TST, the matter is controversial.
Now, after 10 years of the Law on road freight transportation for third parties for remuneration being in force, the National Transportation Confederation filed a Declaratory Action of Constitutionality with the Federal Supreme Court (STF), seeking a ruling on the actual constitutionality of Law 11,442/2007, specifically where it provides for the absence of an employment relationship and the validity of the contracts.
The action was assigned to Justice Roberto Barroso who, in an interim decision issued on 12.19.2017 and published on 12.27.2017, ordered the immediate suspension of all proceedings involving the application of article 1, caput, article 2, paragraphs 1 and 2, article 4, paragraphs 1 and 2 and article 5, caput, of Law 11,442/2007, until the Declaratory Action of Constitutionality is decided, ordering the case to be promptly placed on the STF Plenary’s agenda for confirmation of the injunction and subsequent judgment on the merits.
Thus, all actions questioning the application of Law 11,442/2007, in which contracts entered into with Independent Cargo Carriers (TAC) or Road Freight Transportation Companies (ETC) are revisited, specifically when the contracts’ validity is challenged as an alternative to an employment relationship, must be suspended until the matter is decided by the STF. These are actions that, as a rule, are heard by the Labor Courts.
The issue under discussion is extremely important and was not resolved when the Labor Reform expressly provided for the possibility of outsourcing core activities. Once decided, it will reveal the STF’s view on related issues, such as the very precedence of Law over Summaries — which should not even be in question, but is a reality in the Labor Courts.
