STF Livra União e Petrobras of Rombo of about R $ 2 billion

The Federal Supreme Court (STF) has ruled, by majority, that public entities are not automatically responsible for the labor debts of outsourced companies. The decision delivers the Union and Petrobras of a break of about R $ 2 billion, and affects all cases that discuss the same subject in court.

According to information presented in the process in 2020, Petrobras is the target of about 52 thousand processes involving outsourcing, with values ​​that exceed R $ 1.5 billion.

The Attorney General of the Union (AGU) said in 2021 that the theme has an impact of R $ 419 million, on a conservative estimate, for the public coffers.

The discussion focused on defining who is the responsibility of proving whether or not there was a negligence of public administration in cases of outsourcing when the service provider no longer fulfills its labor obligations.

The rapporteur, Kássio Nunes Marques, proposed the winning current. For the minister, it is up to the plaintiff of the labor lawsuit to prove that the Public Administration did not oversee the provision of service or knew the problem and did not take any measure to regularize the situation.

He was accompanied by ministers Luis Roberto Barroso, André Mendonça, Alexandre de Moraes, Cármen Lúcia and Gilmar Mendes.

“I understand the responsibility of public administration in cases where there is an unequivocal proof of omissive or commissive conduct in the supervision of contracts, so that it is essential to prove both knowledge of the situation of illegality and inertia in taking action to remedy it,” stated in his vote.

Divergences

Two differences were opened. One of them was from Minister Edson Fachin, who argued that it is up to the public entity to prove that it acted in accordance with the law. For him, the burden cannot fall on the worker because he does not have the necessary means to produce evidence. “It is, yes, the duty of the service taker to prove that he has supervised. If you do not do so, it answers, ”he said.

Minister Dias Toffoli accompanied Fachin. “My concern is this situation of the worker who is discovered with a company that breaks,” he said.

Minister Cristiano Zanin diverged only in the thesis, and was accompanied by Flávio Dino. He argued that the responsibility of public entities is not automatic, but it is up to the judge to determine in light of the specific case who will have the burden of proof.

“The condition for this subsidiary liability is the proven failure in the inspection,” proposed Zanin. “As a rule, it is up to the plaintiff to prove this failure. Now there may be situations where this is not possible. ”

Versions

Lawyer Felipe Gomes Vasconcellos, who spoke for the Brazilian Association of Labor Lawyers (Abra), argued that the economic repercussion of about R $ 2 billion presented by the Union and Petrobras impacts, on the other hand, the workers who claimed in court the receipt of labor funds. “We are talking about thousands of creditors of these R $ 2 billion who did not receive their labor rights due to the failure of inspection from the public administration,” he said.

Workers’ representatives argue that the burden of proving that the public entity has fulfilled its obligations must be of the Public Administration itself. “Transfer the burden of proof to the employee, who does not have access to the contracts made by the Public Administration, does not have access to the inspection mechanisms adopted or not by the State, is to impose a disproportionate obligation,” said Vasconcellos.

São Paulo State Prosecutor Celso Alves Resende Júnior said the Labor Court has ignored the Supreme Court’s jurisprudence in deciding that the burden of proof is the public entities. “The Supreme has already consolidated an understanding contrary to the automatic accountability of public administration, however, the Labor Court reiterated has been shy away from this guidance,” he said in oral support.

For him, the understanding of the Labor Court of imposing on the Public Administration the duty to prove that it was not negligent creates a “presumption of guilt that finds no support in the law or the jurisprudence of this Supreme Court.”