Lei da terceirização só vale para contrato encerrado a partir de 2017, diz TST

Lei da terceirização só vale para contrato encerrado a partir de 2017, diz TST

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A Subseção 1 Especializada em Dissídios Individuais (SDI-1) do Tribunal Superior do Trabalho decidiu nesta quinta-feira (3/8), por unanimidade, que a lei de terceirização só vale em contratos celebrados e encerrados depois que a norma entrou em vigor, para respeitar o direito adquirido do empregado. Quando a dispensa ocorreu antes, portanto, continua a valer tese da corte que proibia a prática nas atividades-fim (Súmula 331).

Esse é o primeiro precedente da SDI-1 sobre a aplicação intertemporal da Lei 13.429/2017, sancionada em março pelo presidente Michel Temer (PMDB). Como o colegiado uniformiza a jurisprudência do TST, a decisão sinaliza como juízes de primeiro grau e tribunais regionais devem enfrentar a questão, de acordo com o corregedor-geral da Justiça do Trabalho, ministro Renato de Lacerda Paiva.

O caso analisado nesta quinta envolve um banco condenado por terceirizar empregados de telemarketing. O acórdão considerou que os serviços telefônicos de cobrança se inserem na atividade-fim bancária da instituição financeira. Uma das rés apresentou embargos de declaração para a subseção se manifestar sobre a aplicação da nova norma.

Para a empresa, a lei afasta qualquer ilicitude e dispensa a aplicação da Súmula 331, que só teve sentido quando havia “vazio” normativo sobre o tema. Outro pedido tentava suspender o andamento do processo até que o Supremo Tribunal Federal julgue recurso extraordinário com repercussão geral.

Cenário mais vantajoso
Mesmo sem ver omissão, contradição, obscuridade ou erro material na decisão anterior, o relator, ministro João Oreste Dalazen, acolheu os embargos para prestar esclarecimentos.

“A entrada em vigor da nova lei, geradora de profundo impacto perante a jurisprudência consolidada do TST, (…) não se aplica às relações de emprego regidas e extintas sob a égide da lei velha, sob pena de afronta ao direito adquirido do empregado a condições de trabalho muito mais vantajosa”, afirmou.

Ele declarou ainda que o STF não determinou o sobrestamento da tramitação dos processos sobre o assunto. “Em semelhantes circunstâncias, nem a entrada em vigor da Lei 13.429/2017 nem o reconhecimento de repercussão geral do tema versado no ARE 713211, no âmbito do STF têm o condão de alterar o entendimento firmado no acórdão ora embargado”, concluiu.

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Data de validade
Para contratos antigos e ainda em vigência, a lei diz que é facultativa a aplicação das novas condições: podem ser adotadas se as partes concordarem.

O Supremo ainda pode decidir qual entendimento vale para os casos já em tramitação na Justiça do Trabalho. A Associação Brasileira de Telesserviços, amicus curiae em processo na corte contra a súmula do TST (ADPF 324), pediu neste ano que a corte decida o destino dos processos em andamento.

Além disso, o STF já recebeu pelo menos quatro ações pedindo que a Lei 13.429/2017 seja declarada inconstitucional. Em uma delas, a Procuradoria-Geral da República diz que permitir funcionários terceirizados em funções essenciais às empresas viola o regime constitucional de emprego, a função social constitucional das contratantes e o princípio isonômico (ADI 5.735).

PT e o PCdoB também são contra o texto (5.687), assim como a Rede Sustentabilidade (ADI 5.685) e a Confederação Nacional das Profissões Liberais (ADI 5.686). O relator em todos os processos é o ministro Gilmar Mendes. Com informações da Assessoria de Imprensa do TST.

ED-E-ED-RR-1144-53.2013.5.06.0004

*Texto atualizado às 18h48 do dia 3/8/2017 para acréscimo de informações.

Fonte: Consultor Jurídico
Data: 03 de agosto de 2017
Acesso: 11 de agosto de 2017

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