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Brazilian Supreme Court recognizes the constitutionality of Law 11.442/0

15/04/2020

On Tuesday (04/14/2020), the majority of the Brazilian Supreme Court (STF) recognized the constitutionality of Law 11.442/07, which regulates the hiring of independent carriers by cargo owners and transport companies. Thus, these companies are authorized to outsource their core activity without having to create an employment relationship.

In Declaratory Action for Constitutionality (ADC) No. 48, the Confederação Nacional do Transporte (CNT) maintained that the articles do not violate any constitutional provision and are based on the principles of free enterprise and freedom to exercise profession. According to the CNT, as the plaintiff, the Labor Court rejects the application of the rule and recognizes the employment relationship between companies and self-employed workers on the understanding that this form of contracting constitute illicit outsourcing of a core activity.

Consequently, the request made in the Direct Action of Unconstitutionality (ADI No. 3961), proposed by the Associação Nacional dos Magistrados da Justiça do Trabalho (ANAMATRA), was dismissed on the grounds that the contested law distorts reality despite the elements that demonstrate an employment relationship.

According to Roberto Barroso, the Reporting Justice of the actions, once the requirements of Law 11.442/07 have been fulfilled, a commercial relationship of a civil nature is created and the employment relationship is removed. The Justice considers it legitimate to outsource the core activities of a company on the grounds that the constitutional principle of free enterprise guarantees economic agents the freedom to choose their business strategy within the current legislative framework.

Thus, the Brazilian Supreme Court ruled that an independent cargo transporter is only an alternative for structuring cargo transportation and does not represent a substitution or misrepresentation of the employment contract. In this sense, the constitutional norms for protecting work do not require that any relationship between the contractor of a service and its provider be protected by an employment relationship.

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