The Federal Supreme Court, in a virtual session, by majority vote, ratified the provisions of Law No. 11,442/2007, which regulates the hiring of autonomous cargo transporters by cargo transportation companies, since the Federal Constitution does not prohibit the outsourcing of middle or core activities.
This matter was discussed in the Declaratory Constitutionality Action 48, filed by the National Transport Confederation, under the argument that, Law No. 11,442/2007 is constitutional and should be recognized for its purposes, since, in its majority, the Regional Labor Courts decide to not apply it, under consideration that the cargo transport performed by the autonomous cargo transporter, on behalf of the cargo transport company, is, in fact, the company’s core activity, reason why the employment relationship has to be duly recognized.
The Federal Supreme Court, by majority vote, ruled the case in favor of National Transport Confederation, and, as result of this judgement, they recognized the validity of Law No. 11,442/2007, considering the non-existence of an employment relationship between the autonomous cargo transporter and the cargo transport company, based on the following thesis:
- “1 – Law No. 11,442/2007 was ratified by Federal Constitution, since it does not prohibit the outsourcing of the middle and core activities. 2 – The limitation period established in article 18, of Law No. 11,442/2007 is valid, because it is not related to any labor credit, as recognized by item XXIX, article 7, of the Federal Constitution, but rather of a commercial relationship. 3 – Once the requirements set forth by Law No. 11,442/2007 are fulfilled, the commercial relationship of a civil nature will be configured and the employment relationship will not exist.”
Such theme was discussed in the Direct Action of Unconstitutionality 3961, filed by National Association of Labor Magistrates (“ANAMATRA”), striving for the unconstitutionality of articles 5 and 18, of the aforementioned law, under the argument that it allows to distort reality, even though the elements that characterize the employment relationship are present, as follows:
Article 5 provides that the relationship between autonomous cargo transporter and the cargo transport company is strictly commercial, being inexistent any employment relationship between them:
- “Article 5. The relationship resulting from the cargo transportation contract referred in article 4 of this Law, has a commercial nature, and does not, under any circumstances, characterize employment relationships.
Single paragraph. It is the responsibility of the Civil Justice to rule actions arising from cargo transportation contracts.”
On the other hand, article 18 deals with the statute of limitation period for repairing any damages related to the relationship between the parties:
- “Article 18. Prescribes in 1 (one) year the claim for reparation for damages related to transport contracts, starting from the acknowledgement of the damage by the interested party”
Said term is in dissonance with the provisions of the Federal Constitution, if it was recognized the employment relationship eventually maintained between the parties:
- “Article 7. These are the rights of urban and rural workers, in addition to others aimed at improving their social condition:
Item XXIX – action, regarding the last 5 years resulting from employment relationships, up to the limit of two years after the termination of the employment relationship”
The claim proposed by ANAMATRA was dismissed.
In the same opportunity, minister Luís Roberto Barroso ratified the decision already rendered by the Federal Supreme Court, by validating the outsourcing of a company’s core activities.
According to the minister, actually, the cargo transportation business comprises three distinct figures: (1) the road cargo transport company; (2) the autonomous cargo transporter; and (3) the employed driver.
For him, Law No. 11,442/2007, providing about the commercial relationship between the road cargo transport company and the autonomous cargo transporter, will not be applied to the (3) employed driver, or in cases that exist an employment relationship.
Our Labor Team remains at your disposal to clarify any doubts.