O que muda com o projeto de lei sobre trabalho temporário e terceirização

O que muda com o projeto de lei sobre trabalho temporário e terceirização

Por |

Dentre as notícias trabalhistas que estão tomando conta das preocupações de todos está a recente aprovação do Projeto de Lei 4.302, de 1998, do Poder Executivo. Este projeto se caracteriza pelo tratamento, em um só texto, de trabalho temporário e da prestação de serviços a terceiros.

O projeto, na sua origem, preserva os conceitos da natureza jurídica de trabalho temporário na forma da Lei 6.019/1974 e estende o prazo de três para seis meses relativamente à possibilidade de permanência de um mesmo trabalhador na execução de trabalho de natureza temporária.  Portanto, mantém a previsão anterior de que o prazo do contrato está vinculado ao tempo de execução do trabalho e não, como equivocadamente se pratica, de inserir na contratação de trabalhadores o prazo da execução do trabalho.

A ampliação do prazo já se pratica perante o Ministério do Trabalho, por meio de justificativa da empresa fornecedora de mão-de-obra. Dadas as condições em que ocorre a necessidade da contratação de fornecimento de mão de obra temporária, seria dispensável a previsão legal de que o trabalho temporário poderá ocorrer em atividade fim e atividade meio.

Entretanto, como o tema pode sugerir interpretações contrárias ao modelo jurídico especialíssimo e excepcional, melhor esclarecer do que deixar livre o solto, ainda mais em momento de avanços conceituais em torno da subordinação.

O trabalhador inserido nesta relação jurídica de trabalho não mantém condição jurídica de empregado, mas recebe direitos trabalhistas semelhantes àqueles atribuídos ao trabalhador com vínculo de emprego. Por esta razão não se confunde com contrato a termo e não há reconhecimento de garantia provisória de emprego, conforme decidiu o Tribunal Superior do Trabalho (RR-1163-28c.2014.5.09.0655).

O outro aspecto do projeto de lei aprovado faz referência às empresas prestadoras de serviços, regulamentando a forma pela qual poderia ocorrer a prestação de serviços especializados. Neste sentido, não se distingue entre a atividade fim e atividade meio que, no nosso sentir podem conviver desde que não seja utilizada a prestação de serviços como forma de exclusão de direitos e desde que não submeta o empregado da empresa prestadora de serviços à condição de subordinado pessoalmente ao tomador. Não se trata, com a aprovação do projeto de lei, de transformar os atuais empregados em pessoas jurídicas.

Terceirização pressupõe especialização nos serviços e autonomia na sua execução. A diferença fundamental entre o regime jurídico do trabalho temporário e a prestação de serviços é que no primeiro caso há cessão de mão de obra e, no segundo, o objeto é a prestação de serviços especializados a cargo e responsabilidade da empresa prestadora.

Todavia, em épocas de crise, falar em legalização da terceirização como necessária a fim de alavancar o desenvolvimento econômico tende ao aguçamento de radicalizações dos prós e contras.

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A terceirização sempre envolve três aspectos relevantes: (i) o risco da relação jurídica; (ii) o conteúdo da relação jurídica; e, (iii) os direitos atribuídos aos empregados da empresa prestadora de serviços.

A questão da relação jurídica quanto ao risco está resolvida porque a tomadora de serviços será sempre responsável subsidiária pelos direitos não satisfeitos pela prestadora, mantendo a orientação da jurisprudência do TST.

O conteúdo da relação jurídica parece também já ter sido resolvido pela Súmula 331 do TST, impedindo que a terceirização sirva como forma de marchandage, ou seja, não poderá o trabalhador vinculado formalmente à empresa prestadora de serviços permanecer subordinado às ordens do tomador de serviços.

Finalmente, quanto aos direitos a serem atribuídos aos empregados de empresa prestadora de serviços terceirizados, não podem ser inferiores àqueles que já são reconhecidos pela lei acrescidos daqueles direitos decorrentes de negociações coletivas.

O que preocupa os sindicatos, organizados no modelo de categorias profissionais, ao que parece, é, de um lado, o deslocamento de trabalhadores para categorias diversas da preponderante e com isto ter prejudicado a receita sindical e, de outro lado, a mudança de negociações coletivas previstas na Reforma Trabalhista encaminhado em final de 2016 e que ainda está em andamento e que sugere negociações no âmbito das empresas com representante eleito pelos trabalhadores, deslocando as reivindicações e controvérsias para o ambiente da empresa e, desta forma, beneficiando todos os trabalhadores, sem distinção de categorias, com fortalecimento dos grupos nos locais de trabalho.

Enfim, na essência, o projeto de lei aprovado não traz grandes alterações porque preserva a proteção da relação de emprego e os desvios fraudulentos e ilícitos, quando constatados, serão coibidos.

Por Paulo Sergio João

Fonte: ConJur
Data: 24 de março de 2017
Acesso: 24 de março de 2017

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