Unacceptable social regression

Approved last night (08/04) in the Chamber of Deputies, with a very large majority of 324 votes in favor and only 137 against, Bill No. 4.330/04, by former deputy Sandro Mabel (PMDB/GO), is imposed, from now on, as the worst alternative to forms of labor contracting in the country, allowing outsourcing in all areas of company activity, including core activities.

In a forced operation led by the Speaker of the House, Eduardo Cunha (PMDB/RJ), Bill 4.330/04, which had been languishing in the House for over a decade, gained urgent status, being openly supported by the parliamentary blocs of almost all parties in parliament, with the exception of the PT, PCdoB, and PSOL, which instructed their deputies to vote against the proposal. Parties that claimed to defend labor causes, such as the PDT, PTB, PSB, and Solidariedade, opted to instruct their blocs to vote in favor of the proposal. Joining them was the PMDB, which, increasingly close to the PSDB and DEM, clearly opposes President Dilma Rousseff's government in the House, despite holding important ministries and occupying strategic leadership positions in the Executive branch, one of which is the government's own political coordination, through Vice-President Michel Temer.

As is known, currently, outsourcing, that is, the provision of services contracted through a third-party intermediary, is based on Precedent 331 of the Superior Labor Court (TST), which facilitates this possibility only in cases of temporary work under Law No. 6.019/74, as well as in areas of surveillance (Law 7.102/83), conservation and cleaning, in addition to specialized services related to the core activity of the service recipient, provided that there is no personal involvement or direct subordination in the relationship between the recipient and the contracted workforce.

Nevertheless, the summary provides for the subsidiary liability of the contracting party, whether or not it is part of the direct or indirect public administration, in the supervision and payment of labor-related debts not settled by the intermediary company (service provider) with the outsourced workers.

What the Labor Court intends with Precedent 331 is to prevent the application of outsourcing to all of a company's activities, linking it to direct responsibility for labor costs arising from the provision of services essential to its operation, guaranteeing the respective workers the security of immediate contact with the employer for the purpose of receiving the compensation due, especially wages, among other labor obligations.

The whole problem with outsourcing lies in the historical observation that services contracted through this form of regulation acquire nuances of greater precariousness than conventional employment contracts governed by the CLT (Brazilian Labor Law). To begin with, in outsourcing, services are contracted, while in the conventional model, people are hired. From there, numerous differences exist, in legal treatment, between one institution and the other.

The union protection afforded to employees directly employed by the service recipient is more robust and efficient because they form a homogeneous community. This situation differs from that of workers under outsourcing arrangements, who are often subjected to rotating shifts across different workplaces, making them invisible to the protection of their respective unions and hindering their mobilization and participation in union policies.

Consequently, the wages and general working conditions of outsourced workers are usually worse than those of employees hired under the standard model, creating profound unease within the organization, as part of the workforce is more vulnerable in terms of security than another part, even though the group is working in a single business environment.

Due to this increased precariousness in the current situation, and being more vulnerable to risks, outsourced workers are subjected to more rigorous and longer working hours, and suffer more workplace accidents, a situation that automatically implies an increase in state spending on medical assistance and insurance protection.

The possibility of fraud in the outsourcing hiring system is infinitely greater than in the standard system, since, not infrequently, outsourcing is carried out through the hiring of irregular legal entities (via "pejotização," a form of disguised employment), or even fake labor cooperatives, organized with the sole and exclusive purpose of stealing labor rights and social security and tax contributions.

Now, add to all the precariousness described in the context of private law, the risk that the precedent of Bill 4.330/04 imposes on public administration, if extended there, where, as a rule, support activities are already outsourced. It won't be long before public service exams and statutory careers are over.

It is therefore unequivocal that the proposed legislation has the deliberate intention of harming the dignity of the worker, violating the 1988 Constitution in numerous articles, including: Article 1, item II, which highlights the dignity of the human person as one of the foundations of the Republic; Article 3, items I, II and IV, which consequently call for the construction of a just society, the eradication of social inequalities and the fight against all forms of discrimination; Article 7, item XXII, which promotes the reduction of risks inherent in work; Article 8, caput, which enshrines and promotes trade union association; in addition to Article 170, which states that the national economic order must be based on the valorization of human labor and free initiative, in order to ensure a dignified existence for all. Furthermore, it ignores all provisions of sub-constitutional legislation dedicated to combating precarious work, as well as those that address anti-union conduct.

Finally, Bill 4.330/04 also turns a deaf ear to the principle of non-regression in social rights, according to which it is impossible to alter the legal order for the worse, especially with regard to social rights. Workers should therefore intensify their opposition to the measure recently approved in the Chamber of Deputies, demanding its rejection from the Senate and, if necessary, a veto from President Dilma Rousseff, a situation in which they should make every effort to dissuade Congress from this fateful legislative invention.

The labor reform proposed by Bill 4.330/04 is the most serious attack on workers' rights in Brazil since 1967, when the FGTS (Severance Indemnity Fund) system was established, gradually undermining the ten-year job security provided by the CLT (Consolidation of Labor Laws). This modification was groundbreaking in solidifying the institutional imbalance between the forces that make up the employment relationship—employers and employees—whose nature was already unequal. Today, Bill 4.330/04 threatens to deepen this imbalance, further precariousizing working conditions and the system of labor inspection and protection, especially the union system.

It is absolutely unacceptable that a labor violation of this nature should occur in a fully democratic regime. Incidentally, it is worth remembering that outsourcing, as already mentioned, was initially introduced into the national legal system for temporary work, by Law No. 6.019/74, itself a perverse legacy of the military period.