A TERCEIRIZAÇÃO E SUA RELAÇÃO COM O VÍNCULO EMPREGATÍCIO

Abstract

This article analyzes the legal and factual criteria used to characterize the employment relationship in service outsourcing within the Brazilian legal context. Theresearch is justified by the economic relevance of outsourcing and the intensified debates following the enactment of Law No. 13,429/2017, the Labor Reform, and the Brazilian Supreme Court decisions in 2018. The general objective is to investigate the relationship between outsourcing and employment relationships, analyzing legal foundations, doctrinal positions, and judicial decisions. The methodology adopted a qualitative descriptive-analytical approach, developed through bibliographic and documentary research, with analysis of primary and secondary sources. The study demonstrated that, although the Supreme Court validated unrestricted outsourcing in ADPF 324 and RE 958.252, the employment relationship continues to be recognized by Labor Courts when direct subordination of the worker to the client company is present. Jurisprudence distinguishes structural subordination, inherent to lawful outsourcing, from direct subordination, characterized by working hours control, supervision by client company representatives, and disciplinary power, which constitutes fraud. The subsidiary responsibility of the client company was maintained after the labor reform. It is concluded that outsourcing represents a legitimate instrument of business organization, constitutionally validated, but remains subject to legal limits, with the principle of reality prevailing when practice evidences an employment relationship.