Outsourcing: Brazil overview | Practical Law
developing long-term relationship with partners that have different norms and are .. Brazil Seeks Outsourcing Dominance, Workforce Management Online. industry is largely dominated and overshadowed by Argentina, Brazil and. Mexico, as important to examine whether the same relationship holds for the Ruiz, G. (), “Brazil Seeks Outsourcing Dominance”, Workforce [online] http://. A Q&A guide to outsourcing in Brazil. .. On an outsourcing, there is a risk that a direct employment relationship will be formed . transactions or result in the abuse of a dominant market position. Seek specific performance.
It is important that service levels: Are based on availability, response times and so on. Have their breach measured by level of severity.
If not, it can be very difficult to enforce the service credits scheme and reduce the fees where the supplier does not perform its obligations according to the agreement. The parties should review the service levels from time to time to ensure that they meet the customer's needs.
The agreement may also provide for the payment of a bonus to the supplier if performance exceeds certain thresholds. Flexibility in volumes purchased What level of flexibility is allowed to adjust the volumes customers purchase?
The parties are free to contract, provided that the limits stated by the Brazilian laws are observed. In principle, there is no limitation regarding the minimum and maximum volumes involved in this type of agreement. Exclusive agreements are permitted if the relationship between the contracting parties does not constitute a violation of the economic order.
The law prohibits conducts that could restrict commercial transactions or result in the abuse of a dominant market position. Charging methods and key terms What charging methods are commonly used on an outsourcing? Fixed price plus The most common method used on an outsourcing is a fixed fee combined with other charges based on variation mechanisms such as the number of employees, requests and so on.
Cost plus It is also common to charge based on time and materials using a cost-plus model or to use either of these plus a fixed price. In cost-plus models, the customer should be able to review the budget and the costs incurred.
What other key terms are used in relation to costs, including auditing and benchmarking mechanisms? The parties normally agree on benchmarking to set the fees charged under the agreement and engage a third party to compare the contractual fees with those generally charged in the market.
Outsourcing | Laws and Regulations | Brazil | ICLG
The agreement may also provide for a lump sum payment to the supplier for the initial costs of implementing the outsourcing. There may also be charge variation mechanisms see Question 12 and Question When fixed prices are used, the agreement may specify that the service fees are subject to indexation on an annual basis according to a particular index, such as the Index of Prices to Consumers IPC.
Customer remedies and protections If the supplier fails to perform its obligations, what remedies and relief are available to the customer under general law?
If the supplier fails to perform its obligations, the customer can: Suspend compliance with its obligations under the agreement. Terminate the agreement for cause subject to compliance with the agreement's termination provisions. Seek indemnification for the damages caused to it arising from the supplier's breach, plus interest, indexation and legal fees.
Depending on the nature of the services, a court can authorise a third party to provide the services on the supplier's behalf and then charge the supplier a services fee. What customer protections are typically included in the contract documentation to supplement relief available under general law? The following customer protections are typically included in outsourcing agreements: Penalties for breach or delay of key obligations. Step-in rights for the customer to temporarily take over the outsourced services in cases of severe breaches by the supplier.
Service levels see Question Minimum insurance coverage, depending on the type of agreement. The ability to review or adjust services fees based on service levels, benchmarking and so on.
Brazil's Temer signs bill allowing outsourced jobs
Warranties and indemnities Warranties and indemnities vary according to the type of outsourcing and the nature of the services being performed, but typical provisions included in outsourcing agreements are: Confirmation that the parties are validly existing entities and are authorised to enter into the agreement.
Confirmation that the parties are independent contractors and that there is no employment, joint venture or agency relationship between them.
Confirmation that each party is responsible for its own employees, and indemnification against an employee filing a lawsuit or complaint against the other party.
Warranties of IP ownership and indemnities against IP rights' infringement. If products are supplied, warranties regarding the product's quality or use. Confirmation that the supplier will comply with applicable laws when providing the services. Warranties from the supplier that the services will meet the contractual specifications.
Confirmation that the supplier has technical and operational structure to perform the agreement with no need of additional investments. What limitations are imposed by national or local law on fitness for purpose and quality of service warranties? A contracting party can reject a defective good or product, or demand a proportionate price reduction, within 30 days of delivery for visible defects, or days from the day on which the defect is shown in the case of hidden defects Brazilian Civil Code.
If the agreement sets a warranty period, this overrides the term provided for by the Civil Code for the buyer to make a claim. However, even while the contractual warranty is in force, a buyer or contracting party who is harmed by the product defect must notify the other party of the defect within 30 days of the defect becoming apparent.
Failure to do so renders the warranty unenforceable. Consumer contracts have minimum protection requirements statutory warrantiesand a strict civil liability regime governing damages caused by the product or service or for a product's imperfections.
Statutory warranties cannot be waived, as a matter of public policy. The consumer can claim against visible or easily verifiable defects of durable products within 90 days of the actual delivery of the product.Brazil series "RED" Trailer
For hidden imperfections or defects, the day term starts when the defect is shown. If the supplier does not correct the imperfection within 30 days, the consumer can demand one of the following, at the consumer's option: Replacement of the product by another without defects of the same kind. Immediate reimbursement of the amount paid, with indexation. This does not affect the consumer's right to recover any losses and damages.
A proportionate price reduction. What provisions may be included in the contractual documentation to protect the customer or supplier regarding any liabilities and obligations arising in connection with outsourcing? Customers have subsidiary liability in relation to services provided by a supplier and, as a result, may be held liable for any damages caused to clients or to third parties. A provision limiting the extent to which a supplier will indemnify its customer for losses incurred may be included in the contract as long as certain legal requirements are observed see Question Provisions regarding employee arrangements cannot be included as responsibilities to employees cannot be limited.
What types of insurance are available in your jurisdiction concerning outsourcing, and to what extent are they available? There is no specific regulation concerning insurance issues on an outsourcing. Companies can, however, obtain insurance to cover potential liabilities arising from services and employee actions to be provided under an outsourcing arrangement. As a customer has subsidiary liability for services provided by a supplier, and may be held liable for any damage caused to clients or third parties see Question 20it may wish to obtain insurance to cover these risks.
In addition, companies can obtain insurance to cover predetermined risks that may affect the company's business Civil Code. However, if a company acts fraudulently to obtain insurance, the insurance agreement is null and void ArticleCivil Code. Term and notice period Does national or local law impose any maximum or minimum term on an outsourcing? If so, can the parties vary this by agreement? There is no mandatory minimum or maximum term applicable to the length of an outsourcing.
The parties are free to agree a contractual term in the outsourcing agreement. Does national or local law regulate the length of notice period required maximum or minimum?
A party can terminate an agreement on written notice to the other party. However, if one party has made substantial investments to enter into and perform its obligations under the agreement, termination of the agreement by the other party can only occur after a notice period that is deemed reasonable in view of the characteristics of the agreement and the investments. In fixed-term agreements, early termination without cause may entitle the party that did not terminate the agreement terminated party to indemnification for losses sustained.
However, if the agreement gives any party the right to terminate without cause, the risk that indemnification will be required is reduced, provided that the notice period is reasonable in view of the agreement's term and the investments made by the parties.
In agreements with an indefinite term, it is advisable to specify in the agreement that: Either party can terminate without cause. The notice period must be reasonable.
Termination for cause does not require reasonable prior notice, but it is advisable to include a period in the agreement during which any breaches can be remedied if a breach is not remedied in the specified period, the agreement can then be terminated.
Termination and termination consequences Events justifying termination What events justify termination of an outsourcing without giving rise to a claim in damages against the terminating party? Fundamental breach As a general rule, a breach of contract justifies the termination of an agreement by the innocent party, provided that the breach is relevant.
Other In an agreement for an indefinite term, termination without cause cannot give rise to a claim in damages against the terminating party provided that: The agreement specifies that either party can terminate it without cause. The prior notice period for the termination is reasonable in view of: In what circumstances can the parties exclude or agree additional termination rights? Parties are generally free to agree on additional termination rights under the agreement, but a few restrictions apply, such as: There is a general contract law principle that a party cannot be forced to remain in a contract indefinitely.
As a result, if the agreement does not contain a right of termination, a party may claim in court that the agreement is abusive and request that it be terminated. However, this does not affect that party's obligation to indemnify the other contracting party for damage caused by early termination.
Prior written notice for termination should be reasonable in view of the investments made by the parties and the type of agreement involved see Question If only one party is granted the right to terminate the agreement, there is a risk that courts will find the agreement abusive and grant the other party the right to terminate it the court analyses the facts on a case-by-case basis.
Any reason for termination that does not comply with the general principle of good faith may be deemed unenforceable under Brazilian law depending on the facts.
What remedies are available to the contracting parties? If the termination is due to force majeure or act of God, it will occur without payment of damages and losses. IP rights and know-how post-termination What implied rights are there for the supplier to continue to use licensed IP rights post-termination?
To what extent can the parties exclude or include these by agreement? The supplier has no implied rights to continue to use licensed IP rights after termination or expiration of the agreement, although the parties can allow for this in the agreement see Question If a customer does not want the supplier to continue using its IP rights, the inclusion of the correspondent prohibition in the agreement is strongly recommended.
To what extent can the customer gain access to the supplier's know-how post-termination and what use can it make of it? The supplier generally retains title to its know-how, that is, confidential information disclosed by the supplier and protected under the agreement's confidentiality obligations.
On termination or expiry of the outsourcing, the customer is usually required to stop using the know-how and maintain its confidentiality although the parties can allow the customer to continue using some of the know-how. If the supplier licensed the know-how to the customer under a separate agreement registered with the INPI, it is likely that the supplier will not be entitled to prevent customer from using the know-how after the termination of the agreement. This is because the INPI does not recognise the concept of a technology temporary licence and considers the technology to have been permanently transferred to the Brazilian recipient.
Liability, exclusions and caps What liability can be excluded? Contractual liability is based on three requirements: Wilful misconduct or a negligent act or omission. Evidence of the damage caused. A connection between the negligent act and the damage.
Indemnification is only due if these requirements are met and, in this case, liability cannot generally be excluded. However, this only covers: Losses arising directly and immediately from the contractual breach. Profits that could have been reasonably obtained if the contractual breach had not occurred. Pain and suffering moral damages. Moral damages are only awarded for breach of contract where serious damage has been done to the image or personality rights of the other contracting party.
Any other indirect, consequential or punitive damages are not available. Liability for torts, environmental risks, consumer contracts or the supply of products in the market place cannot be excluded under Brazilian law. Are the parties free to agree a cap on liability? If so, how is this usually fixed? Brazilian courts normally accept limitation of liability provisions in commercial contracts as valid and enforceable, provided that: Both contracting parties are legal entities and have negotiated the limitation.
The limitation is reasonable, that is, the cap is not so low that it would be considered a disclaimer. There is a justification for the limitation and there is consideration or a reduction in costs in return for the limitation. Damages are not caused by a high level of negligence or wilful misconduct. The limitation does not violate Brazilian public policy rules for example, a limitation on liability for damage to the environment.
Outsourcing: Brazil overview
The courts define reasonable limitation on a case-by-case basis, and do not uphold limitation of liability provisions that are excessively low in relation to the risks involved in the transaction. In addition, if there is a great discrepancy between the party's negligence and the damages caused, the courts may reduce the monetary compensation due Civil Code. The parties to an agreement can agree on contractual penalties or liquidated damages for delay in performance, partial performance or breach of contract.
The enforceability of these provisions depends on the following: The parties must have agreed on the liquidated damages before the breach of contract occurred. Liquidated damages do not apply in cases of breach due to force majeure events, unless otherwise expressly agreed by the parties Civil Code. Liquidated damages cannot exceed the contract price. Where the breached obligation has been partially fulfilled, or if the liquidated damages agreed to by the parties are excessively high in view of the purpose and the nature of the contract, the court will reduce the amount to be paid to the non-breaching party.
The parties can specify in the agreement that the liquidated damages clause does not prevent the claiming of additional indemnification for damages arising from a breach of the agreement. If so, the amount of liquidated damages specified in the agreement is deemed to be the minimum amount of indemnification available. If the damages exceed the cap, it is possible to recover additional indemnification from the breaching party.
Both supplier and customer are jointly liable for violations of consumer rights CDC. What are the main methods of dispute resolution used? The dispute resolution methods mostly used in Brazil are the court litigation and arbitration.
Arbitral awards rendered in Brazil have the same effects as a court judgment. The main advantages of using arbitration to resolve disputes are the: Celerity compared to the Brazilian judiciary. Possibility of conferring confidentiality to the procedure. Judgment by specialised arbitrators with knowledge of international transaction structures and agreements. If the parties elect arbitration, they gain considerable freedom to choose the governing law, the venue, the language of the proceedings, and also as to whether the arbitration will be managed by an institution or held in an ad hoc manner.
We begin by contextualizing the emergence of Critical Realism, which lies at the heart of a broader movement to overcome the dichotomy between the subjective and the objective dimensions of analysis in the social sciences. The latter can be expressed in a renewed interest in phenomenology, hermeneutics and in ethnomethodology. Critical Realism, similarly to the far-reaching theories put forward by Anthony Giddens and Pierre Bourdieu, falls within the scope of the said movement.
Regardless of the differences that exist between the ontological and the epistemological guidelines of these different currents, they all call for strong opposition to positivism. Critical Realism is, therefore, a rejection of the positivist pretension to tie the qualitative nature of science to its quantitative aspect. The criticism is, therefore, of the relevance attributed to the extensive collection of data as being a necessary condition for the creation of universal laws governing the natural and social worlds, which is based on the development and testing of theories that are linked to the regularity of empirical events O'MAHONEY and VINCENT, Consequently, the human agency emerges as a central aspect and, in spite of certain structural restrictions, subjects cannot be reduced to mere epiphenomenons of these structures.
In the words of Bhaskarp. Fairclough, Jessop and Sayerp. These are determinant in the processes of the "emergence, reproduction and transformation of social structures in virtue of the actions of social actors and the reciprocal influence of these emerging structures on the social initiatives in progress". Consequently, whilst assuming a deviation of the subject, the authors do not share those points of view that suggest both the inexistence of a reality outside the discursive dimension, and the dissolution of the subject.
As suggested by the authors: That is, it is concerned with the relationship between semiotics and the material and social aspects of the social world; people and their intentions, beliefs, desires, etc. In short, Critical Realism recognises the causual powers that are attributed to the reasons and motivations of authors, individuals or collectives, which can be activated and, consequently produce certain effects within the social world.
Stratified Reality Critical realists suggest the possibility of formulating theoretical generalisations linked to the discovery of generative mechanisms, provisions and structures that are subjacent to the superficial level of analysis, whose causual powers may expand the explanatory, and not merely descriptive potential of the occurrence of phenomena and events, visible or not in empirical reality.
Critical realists agree with the terms proposed by Giddensp. The priority attributed to ontology, associated with epistemological pluralism, is what lies at the heart of Critical Realism. In other words, one must postulate the existence of a stratified reality and the multiplicity of possibilities that exist for its apprehension.
However, Sayer stresses the impossibility of adopting methods that are typical to the natural sciences to cope with the hermeneutic dimension of the social sciences. Hamlin suggests certain elements to support the typification of the different realist perspectives that exist.
Fallibility, meanwhile, expresses the temporary nature of knowledge, which is subject to rebuttal in virtue of new evidence emerging. Put together, these two characteristics are central to positivism, an epistemological current that views reality as a series of observable facts.
However, two additional elements, namely transphenomenonality and counterphenomenonality, are essential to the proper characterisation of Critical Realism. Transphenomenonality points to a stratified reality, in other words, to beyond that which is observable on an empirical level of analysis.
Counterphenomenonality, meanwhile, postulates that, on diving into the elements at the deepest levels of reality, the researcher may be faced with mechanisms, provisions and subjacent structures, expressed in the form of trends and countertrends, which can help him recognise and reveal the multifaceted nature inherent in social reality HAMLIN, Critical Realism has suggested three distinct fields of reality: Factual reality, meanwhile, includes events whose occurrence may or may not correspond to perception or immediate observation, while the real field is made up of the mechanisms, provisions and subjacent structures, which are causually related to perceptions, observations and to the events that make up the other fields.
Following this brief explanation of the ontological perspective that is used in this article, we now turn our attentions to studies focusing on outsourcing in Brazil, which we follow with a more in-depth look at Bill No.
Outsourcing in Brazilian Business Administration Studies The multifaceted reality of the labour market has a number of dimensions through which its different topics can be looked at. Borges and Yamamoto suggest five dimensions for analysing the work or labour category, which are complementary in their focus of analysis.
The first, the concrete dimension of analysis, involves the material and environmental conditions under which work is carried out, while the managerial dimension focuses on the new forms of management that have been adopted. The ideological dimension, meanwhile looks at discursive legitimisation aimed at collective and societal identities, highlighting the power relations within the internal and external scope of companies.
The symbolic dimension casts an analytical eye on the subjectivity of workers and, finally, the socioeconomic dimension deals with a macro analytical plan, focusing on the study of the inter-relations between the labour market and the social, political and economic dimensions.
A review of brazilian literature on organisational studies, produced in the period between and and coinciding with the period during which Bill No. In view of the position taken in this article regarding the institution of outsourcing, this literature review has prioritised articles that have taken a critical position in relation to the subject, even though to different degrees and adopting different ontological, epistemological and methodological points of view.
A global analysis of the material that was researched suggests that the authors cover, simultaneously, a variety of dimensions in their research, given their inter-relationships. It is worth noting that the managerial dimension appears in transversal form in the texts, but is not the focus of their primary analysis, because of the non-managerial approach employed by the authors. With regard to the concrete dimension of the labour market, its presence in the texts is merely residual, despite the increasing precariousness of the objective conditions of labour.
This precariousness manifests itself in the growing number of workplace accidents that have occurred, as well as in work that is often carried out under conditions akin to slavery, common not only in the primary sector of the economy but also in the second and tertiary sectors. Oltramari and Piccininiin a comparative study of two industrial concerns in the textile sector, point to the adoption of different levels of automation and managerial and technological innovation and their relationship with different aspects of labour relations, including their significance to the workers.
Their focus is, therefore, on the concrete dimension of analysis. These authors stress, in both cases studied that the essence of having a job and job satisfaction are lost, either because of an intensification in the work that is linked to multifunctionality, or because of the mechanical routine of the work, both of which may be associated with a lack of prospects in terms of professional career advancement. With regard to the symbolic dimension, research has prioritised the perspective of outsourced workers, looking at areas such the subjective construction of the psychological contract, moral harassment, and the construction of a collective identity of workers.
In the case of the psychological contract, Rios and Gondim highlight, from among the results they obtained in their research, the reduced expectations of outsourced workers. This is compared to full-time employees doing the same kind of work, and refers to the receiving of proper treatment on the part of their employer, and the adoption of a more flexible negotiating position on the part of the former, because of the extreme fragility of their employment status.
Lopes and Silvameanwhile, point out that outsourced workers in the IT sector, because they are faced with the uncertainties of the weak employment ties that are typical in their field of employment, tend to value a more solid employment relationship, constructing their professional identities in such a way as to be largely disassociated from any kind of organisational belonging.
They describe themselves as IT professionals and adapt themselves, even if within a conflictive environment, to the pressures of longer working hours caused by the fear of unemployment. However, the heterogeneity of the subjects of this research suggests that the condition of being an outsourced worker affects, in different ways, the expectations of the workers surveyed and, therefore, their psychological contracts.
In research focusing on the analysis of the construction of the collective identity of outsourced workers, Brito, Marra and Carrieri described the negative image that these workers have of their work and their own identities, with a relevant impact on the fragmentation of this working-class identity. Elements such as discrimination, feeling undervalued and insecurity in relation to the future seen among outsourced workers compete, in the view of these authors, to create the social construction of the perception portrayed.
The question of moral harassment suffered by outsourced workers was also a focus of the study, which sought to show some of the ways in which such harassment might manifest itself in the workplace. Other authors have analysed labour relations and their subjective impacts from the perspective of the psychodynamic of work, showing not only evidence of pleasure being experienced but, above all, suffering experienced by outsourced workers in the workplace. Along the same lines, Costa looked at the suffering reported by outsourced workers, caused, among other things, by the lower wages received when compared to those received by directly employed workers, by the lack of training, by the lack of job stability and by the lack of a strong relationship with the company with which they maintained direct ties.
Dias, Facas, Morrone et al. In terms of the ideological dimension of analysis, a recurring theme that was observed in literature on the subject referred to the criticism of the discourse that deals, in terms of partnership, with the relationship between contractees and subcontractors, in industrial sectors such as: Overall, these articles showed deep divergences between discourse and practice, especially in the case of those mobilised by the contractee firms.
In short, the articles that were analysed covered four of the five dimensions suggested by Borges and Yamamotowith the socioeconomic dimension, and especially the aspects referring to the inter-relations of organizations with the external political environment, dealt with only on a residual basis. It was, therefore, to fill this void that this study sought to map the institution of outsourcing in the case of Brazil, focusing on its historical dimension and thereby provide some context to the current scenario.
Using this approach, the idea was to highlight the on-going debate over the potential impact of Bill No.
Along the same lines, Brito, Marra and Carrierip. In order to contribute to a better understanding of the outsourcing phenomenon, this study has outlined the lengthy process to which the above-mentioned Bill of Law has been submitted. Our research has helped reveal the battle being fought, for more than a decade now, by a wide range of different collective actors, reflecting the different positions and interests of the employer and the worker classes, as well as the views on the subject defended by different collective actors within civil society, such as the Brazilian Bar Association OAB and Anamatra.
Among the flexibilization measures adopted by the latter, one should highlight the following: One should also highlight the legalisation of worker cooperatives, a labour structure widely used to get around the standard rules governing employment.
It is worth noting that within Brazilian society, especially as from the middle of the first decade of this new century, there was a sizable increase in the social mobility of a major contingent of Brazilians, who overcame unemployment and were lifted out of abject poverty.
According to Pochmannp. This group included, among others, work in call centres, in cleaning and private security services and as couriers, most of which were outsourced jobs.
In addition to referring to the asymmetric and unfavourable conditions faced by outsourced workers, the majority represented by the more vulnerable members of society, including women, youths, people of colour and immigrants, the survey also highlighted that the use of outsourcing has a negative impact on wages, the levels of which tend to be The working week was also longer in this comparison, by 3 hours. Another aspect dealt with in this study went beyond the merely economic issue and looked at the physical integrity of these workers.
Another point raised, dealing with the proportion of outsourced workers found to be working in, and saved from conditions akin to slavery, showed clear evidence of the precariousness of the working conditions facing these individuals.
In line with Castelone might say that the trend observed, despite occurring in a scenario different to that described by the author, represents, to large numbers of Brazilian workers, a definite risk of increased levels of precariousness. This portrait of precariousness is primarily based on the regression of social, labour and pension rights, signalling the emergence of a new vulnerability of the masses. The main difference between this and that seen during the 18th and 19th Centuries lies in the fact that currently, this vulnerability is not marked by an unrestricted absence of rights, but rather by a dismantling of the social protection mechanisms that were fought for, and won over the course of the 20th Century.
Methodological aspects In order to achieve the objective of this study, the process of research adopted here was based on two explanatory forms of reasoning, usually used within the scope of Critical Realism: The study, initially targeted at analysing the historical evolution of the institution of outsourcing in Brazil, branched out in two very different directions.
Firstly, the discovery, during the literary review, of the existence of a number of different actors involved in the debate over the passing into law of Bill No. In order to analyse the arguments of the actors targeted by this study, we resorted to the public statements made by entities representing the interests of employers and workers in relation to Bill No.
The text in full of the Bill itself was also analysed. An analysis of this process, from the moment the Bill was first proposed, has shown relatively irregular behaviour over the years, with it progressing through Congress at a very slow pace indeed, as shown by the large number of representations or briefs brought against the Bill, except in and Table 1 summarises the evolution of this process.
We therefore resorted to the usual forms of research logic used in the field of Critical Realism, as well as employing a hermeneutic approach to the perceptions provided by the different actors, by the Bill itself and by the literature under review. Nevertheless, it was only from the s onwards that the adoption of flexible management practices, especially in the automotive sector, which experienced an increasing automation of its production process, began to see a deverticalisation of the processes and productive structures.
As from the s onwards, the use of outsourcing took on epidemic proportions, even extending to nuclear-related business activities DRUCK,but still lacking a proper legal framework. One should once again stress that, in the vast majority of cases, the increased reduction in social and labour-related rights can be directly linked to the practice of outsourcing MELO, In this case, the contractee and the contractor are both considered as liable for any labour claims resulting from the non-compliance with its labour obligations by the contractor.
Outsourced workers are therefore free to demand payment in full of any debts owing them from either one of these debtors. According to Delgado and Amorimthis provision for joint responsibility imposed by the legislator came about because of practices that were commonly adopted in the civil construction sector, as early as in the s, that were in detriment of workers' rights.
It was only in the mids that the use of outsourcing expanded to beyond the sectorial restriction provisioned for by the CLT.
According to Biavaschip. The legal provision, in this case, stipulates that the contractee only has a subsidiary responsibility in such labour issues. Thus, where a contractor fails to fulfil his obligations in relation to an employee, the contractee can only be called upon to settle any outstanding debt when the due legal process has been completed in full, that is, when all avenues for the contractor to fulfil his obligations have been exhausted.
The contractor is, therefore, considered as the prime debtor responsible for any such labour obligations. This change differs from cases where the joint responsibility of the contractee is stipulated contractually. From the point of view of receipt, by the worker, of his rights due, the subsidiary responsibility of the contractee implies, for example, in the extension of the legal process, which can result in extensive delays in the receipt of payments by workers for maternity leave, holidays, severance pay and wages.
If one considers that the majority of these workers are on low wages, prompt payment of such obligations is a matter of urgency, especially as they are invariably needed to help feed families.
Nevertheless, the hiring of temporary workers, as provisioned for in Law No. During the s, the scope of outsourcing was once again extended, this time to include security services Law No. Through its Precedent No. When this precedent was revised, however, inits scope was extended again, to include the public sector as well. According to Delgado and Amorimp. Such an assertion suggests, therefore, the contextualisation of demand for more flexibilization in labour relations within a scenario of the worsening legal standing of companies, resulting from the recurrent adoption of illegal outsourcing practices.
A brief outline of the legislative process to which Bill No. In suggesting the existence of reasons and motives behind the agents' actions that might offer a potential explanation for the interventions of these social actors, as seen over the course of the period in which the Bill has made its way through Congress, one might be led to believe that the urgency seen in the progression of this issue might be related to sanctions suffered by corporations in certain sectors of the economy.
In other words, one might postulate that the practice of illegal activities relating to outsourcing, by influential companies, may have influenced to some extent the pace at which the Bill in question has made its way through the law-making process. Thus, at least in terms of Bill No. One can therefore detect, as shown below, certain interests, reasons and subjacent motives that are directly related to short-term corporate economic interests.
Table 1 provides information relating to the progression of Bill No. We only list the more relevant briefs, without delving into those that fall outside the scope of this article. Produced by the authors. The small number of briefs presented duringin relation to previous and subsequent years, may be explained by the approval of a request to hold a seminar to debate the implications of the Bill in relation to labour relations, which was subsequently transformed into a public hearing held in November of that year.
If one looks at certain other events that were in progress in parallel to the progression of Bill No. Firstly, one should highlight a Decision on the Merits, in the TST in June ofof legal action brought against OI, a telecoms company, prohibiting it from outsourcing its call centre activities, and the potential impact of this on the pace of progression of Bill No. From that point on, in the following legislative years, and especially in andthere was a notable increase in the debate on the subject and a mobilisation of the different social actors with a vested interest.
One should stress the reduced parliamentary activity witnessed in the second half ofwhich was the result of elections to fill executive and legislative positions in that year. If in November ofa public hearing was held at the request of the House of Representatives, one should also remember, as previously mentioned, another public hearing held inproposed by the TST, which gave rise to the Permanent Forum in the Defence of Workers Threatened by Outsourcing.
Coincidently or not, it was in this same month of that the first brief was submitted within the scope of Bill No.
Such events, when combined, suggest not only the recursive nature inherent in the agent-structure relationship, but also the presence of generative mechanisms, not always clear to the casual eye, capable of helping us understand some of the movements being made by different social actors in the struggle to protect their interests.
As part of the continuing and gradual process of flexibilization of labour relations there emerged, at the end of the s, the provision for generalizing outsourcing to the core activities of organisations, set down in the filing of Bill no. This Bill had, at its core, a series of relevant impacts, which even included a revised meaning of the term 'outsourcing'. The legal mechanism in question changes this definition when it states, in its Article 4 Chapt. Taken on its own, the passing of Bill No.
According to Melothere are a total of 22 alternative bills aimed at regulating the institution of outsourcing making their way through the Lower House, with the main difference between them being the scope of their application, in other words, whether they include or not core activities and what their definition is in relation to the responsibilities or liabilities of the contractees of outsourced services, i.
Among the bills highlighted here, in addition to Bill No. This latter Bill, introduced by federal deputy, Vicente Paulo da Silva, a leading figure in the history of the Brazilian trade union movement, has a completely contrary stance in the case of the two points mentioned above for the former Bill. Considering the support given by the business community, and the opposition of the workers to Bill No.