By JORGE LUIZ SOUTO MAIOR*

The more one gives in to the logic of conciliation, the more social and economic losses the working class experiences

I have insisted on stressing how the ideological fragility of the Lula government, which is identified by the alliance it has promoted with the dominant sectors to defend a “democracy” based on bourgeois interests and, with this, maintain “governability”, and which is reinforced by the recurring argument that the government cannot be pressured to act in explicit defense of the immediate interests of the working class because this would allow the government to be politically undermined by opening space for the opposition, an argument also supported by the assessment that the correlation of forces in Congress would not allow progress on such agendas, actually results in the consolidation and normalization of the stage of lowering of the social legal protection network, while at the same time facilitating the advancement of the agenda for an even greater reduction of labor rights.

The more one gives in to the logic of conciliation, the more social and economic losses the working class experiences. And these defeats manifest themselves in a renewed and continuous process. What was conceded at a certain point in time, so that something worse would not happen, becomes the only concrete fact that appears in reality.

It is worth noting that the concession, when we consider the issue from the point of view of legal protection for workers in the capitalist mode of production, is, in fact, a defeat, but one that is not assumed as such. However, the game does not end there; it continues. And, at a later point, a new eventual clash will take place based on the previously established level, and the resistance of the working class, when effective, seems like a victory, but within the standard that had previously been lowered. The defeat is forgotten and assimilated.

An even worse scenario occurs when, at this second moment, another concession is made, based on the same argument of the lesser evil.

There are countless situations, verified in the dynamics of Labor Law, that prove how much the policy of class “conciliation” (which annihilates and even recriminates the class struggle) has generated this progressive process of lowering the labor legal protection network, promoting the increase in the suffering of the working class in Brazil.

The legal issues that most demonstrate this are outsourcing and labor “reform.”

And two facts related to these themes, which occurred last week, clearly demonstrate this entire process: the publication of the Statement of Theme 1118 by the STF, on 13/02; and the editorial in Folha de S. Paulo, the following day.

STF Theme 1118

On February 13, the STF, herald of “democracy”, issued a decision, with general repercussions, on the subsidiary liability of the Public Administration in the event of outsourcing.

The STF, by majority vote, with Ministers Cristiano Zanin, Flávio Dino, Edson Fachin and Dias Toffoli partially defeated, thus stated Theme 1.118:

“There is no subsidiary liability of the Public Administration for labor charges generated by the default of a contracted service provider company, if supported exclusively by the premise of the reversal of the burden of proof, with the proof remaining essential, by the plaintiff, of the effective existence of negligent behavior or causal link between the damage alleged by it and the commission or omission of the public authority”.

“There will be negligent behavior when the Public Administration remains inactive after receiving formal notification that the contracted company is failing to comply with its labor obligations, sent by the worker, union, Ministry of Labor, Public Prosecutor's Office, Public Defender's Office or other suitable means”.

“It is the responsibility of the Public Administration to guarantee the safety, hygiene and health conditions of workers, when the work is carried out on its premises or in a location previously agreed in a contract, in accordance with art. 5º-A, § 3º, of Law nº 6.019/1974”.

“In outsourcing contracts, the Public Administration must: (i) require the contractor to provide proof of paid-in share capital compatible with the number of employees, in accordance with art. 4º-B of Law No. 6.019/1974; and (ii) adopt measures to ensure compliance with labor obligations by the contractor, in accordance with art. 121, § 3º, of Law No. 14.133/2021, such as making payment conditional on proof of payment of labor obligations from the previous month.”

On the same day, social media was flooded with indignant expressions from the labor law community, with particular emphasis on the demand for the production of “negative evidence” by the claimants.

Some, of course, have already come forward, proposing interpretations of the content of the decision that could “minimize” the damages, or even nullify them. Thus, labor lawyers would be left with no choice but to lament or distort the STF’s decision until the text becomes plausible and applicable without major attacks on the effectiveness of labor rights.

The point is that, if we take the necessary steps back, we will have to remember that outsourcing, in any form, is, in itself, an offense to the constitutional order, in which labor rights were established as fundamental, within the program of progressive improvement of the social conditions of workers. The intermediation of labor, euphemistically called outsourcing, is an affront to the social project established in the Federal Constitution, guided by the primacy of labor, the pursuit of full employment and the protection of employment relationships against arbitrary dismissal, also guaranteeing workers collective organization in unions and the full exercise of the right to strike.

Outsourcing, as a strategy of capital to divide the working class, prevent collective organization, make strikes difficult and undermine the effectiveness of labor rights, promoting the generalization of labor legal insecurity, is a direct affront to the Constitution, and it is also true that no economic argument has the strength to counter this, especially because the Constitution itself makes it clear that the economic order must be guided by the dictates of social justice.

And if it should be like this in private relations, how much more so in the public sector, given that, according to the Constitution, which outlines the form of a Social Democratic State, it is the State's duty to be the agent of the constitutional program.

But that's not all. In terms of Public Administration, the impediment to outsourcing is explicit, since access to the provision of services that are permanent and related to the dynamics of the functioning of administrative structures must be preceded, obligatorily, by a public tender.

In fact, there is not a single article in the Constitution that authorizes the transfer of these services to private companies, especially since the transfer that is actually made is shrouded in clear discrimination, since, in general, it only occurs in relation to cleaning and security services. These services are culturally despised, provided by socially subordinated people (mostly black men and women), in relation to which, therefore, the formality of the public examination and the benefits of the social and legal status of a public servant could be disregarded.

Since 1993, labor doctrine and jurisprudence have welcomed outsourcing in the private sector, but they have stated that they do so without undermining the principle of protection, since outsourcing would only be permitted in so-called support activities. This, in essence, has opened the door to the logic of precariousness and has resulted, in concrete terms, in the officialization of the legal downgrading of cleaning and security activities and the discrimination of black people.

The same formula was passed on to the public sector, rendering the constitutional requirement for public examinations a dead letter and, once again, enshrining racial discrimination, in addition to fostering the advancement of the neoliberal ideology of the minimal State and favoring the formulas of deviation and corruption favored by the million-dollar contracts of public entities with private companies, for the execution of these services.

Over the years, outsourcing has claimed millions of victims, whether in terms of the number of work accidents, the reduction in wages or the deliberate and assumed disregard for their labor rights, including, above all, the receipt of the appropriate severance pay.

This is a true story that no one can deny.

Even in the face of these undeniable results, doctrine and jurisprudence, also from the left wing, remained firm in validating outsourcing, even overriding the Constitution, with the argument that either this possibility was granted to the market, or the situation could be worse. And, because of this permission, the victims continued there, inhabiting the daily routine of labor relations in Brazil. Until the worst, even so, came.

In 2017, in the context of the labor “reform,” outsourcing was expanded without restrictions, thus also affecting the so-called “core activity” of service-receiving companies. Furthermore, regarding the responsibility of the service recipient for the effective fulfillment of the labor rights of outsourced workers, the inconceivable formula of “subsidiarity” was maintained, which would not even be accepted in Civil Law, since, in order to promote the realization and proliferation of legal transactions, civil law rules protect the creditor.

The legal/political debate that arose at the time was only around an objection to the expansion of outsourcing, but it was promoted without much mobilization or argumentative force, after all there was no practice of repulsion towards outsourcing itself and the separation created between means-activity and end-activity was incredibly artificial and devoid of any legal basis.

And it was by following this path that we arrived at the current situation, in which, through the hands and minds of the STF, with its Theme 1118, a new defeat for the working class is being achieved.

In light of this, what do we see in the labor law community? Merely arguments aiming for the situation to remain exactly as it was before the STF decision. In other words, the arguments criticizing the STF decision, for representing a legal setback, are also aimed at preserving all the legal aberrations involving outsourcing, especially in the public service, as well as all the harm to workers that this form of hiring has caused over the decades. The very case in which the STF decision was handed down is an example of this.

As highlighted in the text by Valdete Souto Severo,“The STF decision: whose fault is it?”, Maria Cecília Soares filed a labor claim in August 2014, reporting that she had worked for EMPASERV, an outsourced company, performing her services as a cleaning assistant at the Courthouse in the city of Conchas, in São Paulo. After being dismissed, Maria Cecília did not receive her severance pay. The company disappeared without making the payment and did not appear at the hearing. The public administration also did not appear, but filed an appeal against the ruling that recognized the worker's rights. The TRT of São Paulo excluded the award of moral damages and maintained liability, only for wages. It emphasized that the public entity did not demonstrate that it had monitored the situation.

The State appealed again, but the TST upheld the decision. Not satisfied, it appealed to the STF. At the STF, Maria Cecília's case was considered to be of general repercussion, despite “only” dealing with severance pay that was not paid in 2014.

On 13/02/25, eleven years later, the STF dismissed the public entity's liability and, with this, decreed that Maria Cecília will not receive the funds she was entitled to for the work she carried out for the São Paulo Judiciary through an intermediary company.

The Ministers of the STF are therefore fully aware of the effect of this decision and how much it will negatively impact the lives of millions of Brazilian workers, especially black men and women.

That is why imagining that interpretative strategies will circumvent the will of the Ministers is quite illusory. It is enough to see what almost all of the ministers of the STF have been promoting in relation to the issue of the legal configuration in the hiring of workers as legal entities, considered, consciously and assumedly, as “outsourcing” contracts, which, in fact, do not result in the formation of an employment relationship.

But the most serious thing about viewing this course of action that only targets “the biggest attack of all time in the last week” is that, by way of a side effect, it continues to legitimize, without any challenge, outsourcing in the public sector.

It is certainly necessary to denounce the extent of the legal brutality committed, this time, by the STF, to impose yet more suffering on workers who are condemned to outsourcing.

To say that it is up to the plaintiff to prove the “existence of negligent behavior or a causal link between the damage alleged and the commission or omission of the government” is something that goes against all legal constructions produced over the centuries. Negative facts cannot be proven. One person cannot prove that another does not know how to play the guitar, for example. The only way to prove this is the opposite.

Signing a statement with this content is an explicit demonstration of legal ignorance and an offense to logical rationality itself. However, in the name of serving the interests of the ruling class, anything goes, especially because the ruling class will never criticize the STF for this type of action.

The editorial of Folha de S. Paulo

If the labor sector finds itself hostage to the absence of the so-called “opportune moment”, the other side does not impose any limits on itself, not even that of exposing itself to ridicule.

A Folha de S. Paul, for example, which is out there defending respect for the Federal Constitution, with regard to the salary cap for public employees, pretends that there is no Constitution when the issue is the rights of workers. It also fails to realize that it is through the reduction of salaries of those who work in public service through outsourcing that the necessary surplus in the budget to boost salaries is obtained. A crossroads for Folha, because, after all, it will not bother to formulate a criticism of outsourcing.

In the editorial, “The increase in the number of labor lawsuits is alarming”, published on February 14, 2025, the newspaper says it is alarmed by the increase in the number of labor complaints. It even seems that for the newspaper, if the number of labor complaints is small, all the country's economic and social problems will be solved, or, in other words, that all the country's economic and social problems are caused by the high number of labor complaints, and so, in order to achieve the result of reducing complaints (and, with this, improving the country), it is worth imposing costs on workers, so that they are discouraged from filing labor lawsuits.

The reasons why workers are “condemned” to take legal action are not even considered by the news company, which assumes that these people enjoy going to court.

The author of the editorial even outlines an attempt at understanding: “It is surprising, at first glance, that there is so much judicialization with the economy at full capacity and with strong income generation. One of the main reasons is the high turnover, which also drives public spending on unemployment insurance. The current rules even favor this behavior, as it is often more advantageous to exchange workers, even under similar salary conditions and even under worse conditions.”

But he stops there and does not even consider talking about the repeated disrespect for labor legislation that permeates labor relations in Brazil, notably in outsourcing. And from there he goes straight to the point that really interests him: attacking the decisions of the STF and the TST that reduced, somewhat, the harmful effects of the labor “reform”, with regard to the shaking of the constitutional and human right of access to justice.

The editorial says: “Another reason for the increase in lawsuits is the 2021 decision by the Federal Supreme Court (STF) to invalidate a provision of the 2017 labor reform. According to the section, the losing party in the lawsuit would pay the costs and attorney fees of the winning party – even when they are beneficiaries of free legal aid, which is guaranteed to those who earn less than 40% of the Social Security ceiling, or R$3.263 per month.”

For Sheet, herald of the Constitution with regard to the constitutional ceiling, it matters little that the Constitution has guaranteed all people with economic insufficiency the fundamental right to “free and comprehensive legal assistance”.

It doesn't matter! Sheet he wants it not to be like that and that's it. And he goes further and criticizes the STF and the TST because they, at least in this case, did not demand proof of a negative fact from the worker, because no one can prove that they have no money. What is proven is the opposite, and therefore, by rational logic, the statement in this regard is valid - until proof to the contrary is provided.

Then he continues and confuses everything, as he admits that “the guarantee of free legal aid is correct for those who do not have the means”, but that the same right would not be due to those who “litigate in an abusive manner, or even in bad faith”.

Abuse of rights and bad faith litigation, however, are specific procedural institutes, which are configured in accordance with legally related conduct, generating repercussions that are specific to them, and are therefore neither an obstacle to free legal aid nor a basis for the annihilation of this fundamental right.

But the worst comes next. In its eagerness to defend its interests and those of its sponsors, Sheet goes on to directly offend workers, labor lawyers and the labor judiciary as a whole, stating that not imposing high costs represents an incentive for “excessive demands”, because, by pleading “beyond what is correct”, one will “obtain something”. In fact, it is worth remembering that when it comes to imposing punishments on employers who deliberately fail to comply with the legislation, the position of the Sheet has always been to accuse judges who issue decisions with this content of being “activists”.

For Sheet, workers are dishonest in essence and only the threat of punitive coercion can bring them back to the level of regularity of their conduct. The legal profession, in turn, would be made up of a group of activists willing to accept the dishonesty of workers, in their intention to extract “something” from the boss. The labor judiciary, on the other hand, is a body of professionals who are easy to deceive or have bad intentions.

In the end, the editorial praises conciliation, outsourcing, hiring without employment ties and intermittent work, that is, all forms of weakening labor rights and precarious working conditions, under the argument that “they are tools that facilitate the exit from informality”.

In short, the Sheet pretends to defend the formalization of labor relations and even the judicial search for rights, but what it really considers appropriate are the forms of greater labor exploitation, contrary to the Federal Constitution, with no opportunity for the working class to react.

But what is most important to understand is that this manifestation comes in the context of news, carried out and disseminated to the four corners of the world by the Folha de S. Paul, referring to the record reduction in President Lula's popularity, including among his voters, as a way of sending a message that the political scenario points towards a greater “flexibilization” (read: reduction) of labor rights.

With this, it seeks to spread the weapons to undermine once and for all the possibilities of government involvement with any progressive agenda, such as the elimination of the 6x1 workday, regulation, with recognition of employment relationships and full rights, work through apps and, mainly, the repeal of the labor “reform” – which, in fact, was never seriously considered by the government, it is worth noting.

For the government and the sectors of the left that support it, there remains, once again, the lesson that conciliation with the ruling class only results in recurring and progressive losses for the working class and, currently, with the implication of the loss of the very base of popular support.

How long will we continue to be held hostage by the ideological narratives and resulting blackmail of the ruling class?

*Jorge Luiz Souto Maior is a professor of labor law at the Faculty of Law at USP. Author, among other books, of Moral damage in employment relationships (Studio editors) [https://amzn.to/3LLdUnz]

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