By JORGE LUIZ SOUTO MAIOR*
Will the STF effectively determine the end of Labor Law and, consequently, of Labor Justice?
1.
Many texts have already been written denouncing the destructive actions of the STF in relation to Labor Law and Labor Justice. I myself have written some.
But the task that is imposed at the present moment is not to compile all these texts, but rather to understand that all of the STF's interventions in labor matters formed the context of a process, demonstrated, including, by the chronology of the texts and the progressive seriousness of the issues highlighted in them.
This process has now reached its extreme limit and forces us to ask: will the STF effectively determine the end of Labor Law and, consequently, of Labor Justice?
The question is pertinent because, after so many doctrinal, legislative and jurisprudential downgrades, labor legal protection has reached the point at which a new shock will only occur by destroying the foundations of Labor Law. And, although, as mentioned, there have been many forces, inside and outside the legal field, outside and inside the Labor Court itself and the labor doctrine, one cannot deny the decisive role assumed by the STF in this regard, as denounced by the aforementioned texts.
This is even more evident when, after the TST, on 18/03/25, taking the bait of precariousness thrown by the STF and with the objective of deciding, with binding effect, whether the “pejotização” is legally valid, institutes an IRR – Repetitive Appeal Incident in the process E-RRAg-373-67.2017.5.17.0121 (even setting a 15-day deadline for the filing of public statements), the STF, not wanting to lose the leading role in the destruction, quickly reacts and, on 1/04/25, that is, still within the term granted in the TST procedure, takes the bait and schedules the issue.
It is quite important, in fact, to record how this most recent move by the STF took place, both to demonstrate that it was not a mere coincidence or chance, and to understand that the process of attacking the foundations of Labor Law has also been driven by the Labor Court itself.
2.
Everything takes place within the scope of an Extraordinary Appeal (ARE 1532603), filed by the claimant (a worker), with the aim of reforming a decision handed down by the TST, which, in an Appeal for Review (CASE NO. TST-AIRR-262-33.2020.5.09.0014), had reformed a decision by the Regional Court which, contrary to the first instance decision, recognized the employment relationship, on the basis of the existence of fraud in hiring through “pejotização”, operated, in this case, through a “franchise”.
According to the rapporteur of the case, at the TST, Minister Alexandre Luiz Ramos, the STF, in Theme 725, with general repercussion, “decided on the lawfulness of outsourcing by 'pejotização', given the non-existence of irregularity in the hiring of a legal entity formed by liberal professionals”, citing the following Summary:
“Constitutional, labor and civil procedural. Internal appeal in the claim. Offense to what was decided by this court in the judgment of ADPF 324 and theme 725 of general repercussion. Appeal granted. 1. The controversy, in these proceedings, is common both to what was decided in the judgment of ADPF 324 (rel. min. Roberto Barroso), and to the object of analysis of theme 725 (re 958.252, rel. min. Luiz Fux), in which this court established a thesis to the effect that: 'outsourcing or any other form of division of labor between distinct legal entities is lawful, regardless of the corporate purpose of the companies involved, maintaining the subsidiary liability of the contracting company'.” “2. The First Panel has already decided, in a similar case, that outsourcing through 'pejotization' is lawful, and there is no talk of irregularity in the hiring of a legal entity formed by liberal professionals to provide outsourced services in the contracting party’s core activity (rcl 39.351 agr; rel. min. Rosa Weber, red. for judgment: Alexandre de Moraes, First Panel, tried on 11/5/2020). 3. appeal which is granted.” (rcl 47843 agr, rapporteur: Cármen Lúcia, rapporteur for judgment: Alexandre de Moraes, First Panel, tried on 08/02/2022, electronic process dje-068 disclosed 06-04-2022 public 07-04-2022)”.
The claimant protested against this decision and filed an Extraordinary Appeal with the STF, but the appeal was denied. The claimant then filed an Instrument of Appeal, seeking to have the decision overturned and, thus, the Extraordinary Appeal acknowledged.
On 10/02/25, the rapporteur of the case at the STF, Minister Gilmar Mendes, in a single-judge decision, did not accept the embargoes, maintained the decision not to accept the Extraordinary Appeal and increased to 10% the percentage of the calculation of attorney fees to which the claimant had been sentenced.
Dissatisfied, the claimant filed an Appeal to the Court, seeking to have this last decision overturned by the respective Panel to which the rapporteur belongs at the STF. However, as previously announced, on 1/04/25, the rapporteur, considering the admissibility of the Appeal, reconsidered his decision and decided to accept the Extraordinary Appeal, with the aim of submitting to the full Court the proposal to grant the case General Repercussion.
Extremely quickly, on 12/04/25, the Ministers of the STF, by majority, with Minister Edson Facchin outvoted, recognized the existence of general repercussions of the constitutional issue raised, accepting the entry of, now, Theme 1389:
“Competence and burden of proof in proceedings that discuss the existence of fraud in the civil/commercial service provision contract; and the legality of hiring a legal entity or self-employed worker for this purpose”.
It is important to highlight, by the way, the entire content of the proposal made by Minister Gilmar Mendes (and accepted by the plenary of the STF), which demonstrates the real scope of the Theme.
The Minister explains in his decision: "In view of this scenario, it is clear that the constitutional controversy is not restricted to the specific case described in the appeal and has clear legal, social and economic relevance. The solution, to be given through the final and binding decision by the Supreme Federal Court, will contribute to the pacification of the issue throughout the country. Finally, it is important to note that the discussion is not limited to the franchise agreement. It is essential to address the controversy broadly, considering all types of civil/commercial contracts. This includes, for example, contracts with sales representatives, real estate agents, associate lawyers, health professionals, artists, IT professionals, motorcycle couriers, delivery people, among others.”
“In view of the above, I declare that there is constitutional matter and general repercussion in the controversies regarding: (i) the jurisdiction of the Labor Court to judge cases in which the existence of fraud in the civil/commercial contract for the provision of services is discussed; (ii) the lawfulness of the civil/commercial hiring of a self-employed worker or legal entity for the provision of services, in light of the understanding established by the STF in the judgment of ADPF 324, which recognized the constitutional validity of different forms of division of labor and the freedom of productive organization of citizens; and (iii) the burden of proof related to the allegation of fraud in civil contracting, ascertaining whether this responsibility falls on the author of the labor claim or on the contracting company.”
And yesterday, 14/04/25, completing the siege, Minister Gilmar Mendes issued a decision determining the suspension of all proceedings in progress in the Labor Court that deal with “pejotização”: “…I determine the national suspension of the processing of all proceedings that deal with the issues mentioned in these proceedings, related to Theme 1.389 of general repercussion, until the final judgment of the extraordinary appeal.”
3.
This suspension also affects the aforementioned procedure, with public consultation, which had been instituted by the TST, and it is worth noting that the TST itself, in the procedure in question, had already determined the suspension of the proceedings, under the same terms now established by the STF: “Incident of repetitive appeal for review no. 30, by the eg. TST, with a restrictive determination of procedural suspension, according to circular letter no. 04 TST.NUGEP.GP, written by the Chief Justice of the Eg. TST, Aloysio Corrêa da Veiga and decision handed down by the Rapporteur Justice Luiz José Dezena da Silva, attached, regarding the following legal question: “Is the hiring of a worker who constitutes a legal entity to perform a function habitually performed by employees within the contracting company ('pejotização') valid? And the conversion of an employment relationship into a pejotized relationship?””.
“Repetitive appeal incident No. 29, by the Eg.TST, with a restrictive order of procedural suspension, according to circular letter No. 07 TST.NUGEP.GP, written by the Chief Justice of the Eg.TST, Aloysio Corrêa da Veiga, and decision handed down by the Rapporteur Justice Alexandre Luis Ramos, attached, regarding the following legal question: “In light of the binding case law established by the Supreme Federal Court in ADPF 324 in Themes 725 and 739 of general repercussion, is it possible to recognize an employment relationship between the outsourced worker and the service recipient, due to the identification of fraud in the legal transaction established between the companies? If so, under what conditions?”.
4.
This entire report demonstrates, once again, that attacks on Labor Law and the labor judiciary come from all sides. The indisputable fact is that, given the content of the decisions that preceded the establishment of Theme 1389 and the scope that was given to it, there is a real and concrete possibility that, in practice, Labor Law will be completely annihilated and, with it, the Labor Courts, the Labor Prosecutor's Office and the Labor Inspection, in addition to labor law, teaching and academic production.
This is because if the STF establishes the understanding, in a generalizing manner and with binding effect, favorable to the absolute autonomy of the individual adjustment of wills to deny the employment relationship and the incidence of labor rights, without questioning the way in which work is performed, the concrete result will be the disappearance of the figure of employment and, consequently, of Labor Law, at least initially.
What remains to be seen, as proposed in this text, is whether the STF is in fact willing to take this step!!! For many historical critics of the STF's stance on labor issues, there is no doubt that the end is already coming and will occur before the end of the term of the current president of the Court, this being, in fact, the most important legacy that he intends to leave!
The problem is that the issue is not so simple and cannot be reduced to an assessment of the will or personal conviction of the Ministers. Ending Labor Law means throwing millions of Brazilians into greater exploitation, lower wages, more work accidents, longer working hours and greater suffering, since this type of social relationship governed by the law of supply and demand, in the reality of structural unemployment, nullifies the will of the worker, who, in concrete terms, has no other way of surviving than by submitting to the conditions offered by those who have the capital to buy their labor force.
But this situation is not only bad for the individual worker. Lower wages mean lower consumption in general, negatively impacting, at the end of the cycle, those who anticipated an immediate increase in profits with the reduction in labor costs.
Lower wages and reduced consumption mean a significant drop in revenue, hindering the provision of essential public services, especially in the areas of health and assistance, which is an even greater problem if we also consider the increase in the number of people mutilated by unregulated work relationships.
Lower wages, lower consumption, lower revenue, greater suffering, and the failure of public social security, health and assistance services lead both, primarily, to food insecurity and, in a reflexive manner, to insecurity in general.
The argument of “free enterprise” in labor relations is therefore presented as a project to destroy the solidarity pact, the basis of the Social Democratic State of Law. A project convinced of the construction of barbarism, since the truth, well known since the 18th century and which became even more evident in the multiple conflicts that occurred throughout the 19th century and the beginning of the 20th century, is that the free market is not self-regulating and is destructive of everything and everyone.
And, in truth, it must be recognized that we have been moving steadily in this direction for many years, since we have not been able to enforce, even minimally, the Social Security project established in the 1988 Constitution, which has as its principles the primacy of work, the economy following the dictates of social justice and labor rights considered as Fundamental Rights, to fulfill the function of progressively improving the social conditions of workers.
5.
However, some limit is still imposed and with this it is possible to prevent the complete collapse of social organization, especially because, in the context of the scarce state regulation that survives, especially due to the (well mitigated) action of the Labor Court, capital cannot do everything and, not infrequently, advances are seen in legal protection, through the action of collective workers' organizations.
The elimination of this limit, by the unilateral will of the STF, would be like opening a Pandora's box, as the consequences of the fact cannot be measured in advance.
Would the Ministers of the Supreme Federal Court, disregarding the Federal Constitution, be willing to assume this historical and personal responsibility? My bet is that they will not! But I no longer know if this will actually be possible, as I will try to demonstrate.
The bet made comes from the observation that the Supreme Court, in recent years, since it assumed that labor rights had a constitutional basis, has strategically used the placement of labor lawsuits on the agenda, whenever some of its positions are placed under critical eyes of dominant and influential sectors of the political class and economic power.
Creating the expectation of a new retraction of labor rights and, often, achieving this result in a concrete way has been, over the last few years, especially during and after the 2017 labor “reform,” an efficient way of calming the spirits of Faria Lima and changing the media agenda. In other words, putting cases involving labor rights on trial has constituted an authentic policy of institutional stabilization of the STF.
And it is important to note that even before the judgments are handed down, the Ministers are publicly criticizing Labor Law and Labor Justice, praising the market, the “modernization” of labor relations and free enterprise.
This way of acting, in fact, is often enough to produce the desired result, because, in addition to nurturing business desires, the Ministers publicly transmit their “messages”, both to the legislator and to the Labor Court itself, which, threatened with extinction, finds itself, in a certain way, forced to comply with the rules that, however, lead to its self-destruction.
6.
It is important to note that in this process of public “convincing,” the STF is always assisted by the mainstream media, which reproduces corporate interests. The decision by Justice Gilmar Mendes to suspend the processing of all lawsuits in the Labor Court that deal with “pejotização,” for example, was openly celebrated and is now being reported on the homepages of the largest news outlets.[I]
It seems to me, therefore, that the STF will not be willing to directly assume this responsibility and to give up this mechanism of legitimization before the dominant forces, especially because, as stated, it has managed, in some specific situations, to achieve the objective of retracting labor rights through the indirect route of “convincing” the legislator and the Labor Court itself to carry out the task, as well as through the provision of legal instruments so that employers can obtain from workers' union organizations the “acceptance” of worse working conditions.
The problem is that, given the current stage of degradation to which Labor Law has been led, the strategy of using the labor agenda may have reached a stage of exhaustion and, thus, there is no possibility of another move by the STF, in the same direction, that does not lead to the effect of, as they say, “closing the coffin” of Labor Law, especially because a change in direction by the STF is not imagined at this moment.
So, in order not to reveal all this so explicitly, it may be that the STF sees the “way out” of “creating” yet another legal division of the working class, establishing the precept that “pejotização” is valid for certain types of workers, the so-called liberal workers and those who seek “autonomy” at work, so that, in this way, they would not be completely eliminating Labor Law.
It turns out that Labor Law, based on this theoretical postulate, would be reserved for an even smaller portion of the working class, with regard to whom the argument will always be that they are privileged people, even though they are the ones who have historically been most exploited and for whom the most precarious and violent forms of hiring are already “valid”. At the same time, in the wake of this understanding that apparently would not eliminate Labor Law, it would have the effect of putting an end to the social, legal and political importance of Labor Justice, by denying its jurisdiction to assess the regularity of “pejotização”.
Such a position, therefore, is the same as putting an end to Labor Law and Labor Justice once and for all, and this needs to be said and recognized in a very clear way!
It may be, then, that the STF says nothing and, in this way, hiding in the indefinite course of the procedural process, tries to kill the “patient” by asphyxiation, without failing, of course, to send its “messages” at every moment.
The fact is that the STF, with this latest, more incisive and direct move, ended up inaugurating a new, irreversible phase of the historical process, in which rhetorical arguments will no longer have any power to disguise real intentions. Furthermore, since there is no reason to believe that the STF will back down, the concrete consequences of this step will soon be felt in the world of work, and it is certain that the immediate concrete effect that is foreseen is that of full social and economic maladjustment. But all of this, on the other hand, also has the potential to generate a rearrangement of the productive forces, since history is built on dialectical materiality and not on the meanders of the Courts.
Remember that labor rights were not gifts from the State, but rather achievements of workers, and given the revelations that the explicit breach of the solidarity pact provides, it will certainly be much more possible for workers to understand themselves in the historical process as the social class that they are and, with this, begin to recognize, in a more effective and open way, the importance of exercising the class struggle with collective strength, since, in order to contain them, capital will no longer have, in its favor, the limitations imposed by the form of categorical union organization that has existed since the 40s of the last century.
Thus, the new reality that is being announced in the world of work will not necessarily be that of the definitive “scorched earth”, of individual private autonomy, of the free adjustment of wills between capital and a worker individually considered and subjected to the state of necessity, but could instead be the reality of the revitalization of class consciousness and the struggles of workers for better living conditions, as an emergency measure, inside and outside of work.[ii] and, ideally, in another model of society, in which there is no private appropriation of the means of production and the sale of labor power, consequently, does not constitute a means of survival.
There are many people scared and outraged by the positions of the STF and, above all, by the proposal contained in Theme 1389. It is necessary, however, to react!
Legally, it will remain to denounce how the positions of the STF on labor matters have no normative support, constituting, therefore, ideological manifestations and serious offenses to the constitutional and democratic order. It will also be necessary, of course, to use all other legal forms, extracted from the most diverse normative Diplomas, national and international, to prevent, in concrete terms, the degradation of the human condition of workers.
Politically, what already results from understanding the historical actions of the STF, regardless of what is decided in the case in question, even due to the body of work, which reflects a distant and repeated process of attacks on the constitutional rights of workers, which, in addition, reveals its alignment with neoliberal ideology and its class position, is still a historical window that opens to rekindle the class struggle!
The worst thing you can do at this point, therefore, is to pretend that nothing is happening, or to consider that everything is over and that there is nothing that can be done.
The facts are all there for all to see! And they are extremely serious, in many ways, as stated above. On the other hand, they show us the urgency of collective organization of the working class to, once again, save civilization, avoiding the chaos that is looming and, at the same time, free ourselves, once and for all, from the shackles of a system that exploits and discards human lives, based on racial, gender and ethnic discrimination, and which is also sustained by the destruction of the environment.
*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]
Notes
[I]. https://www1.folha.uol.com.br/mercado/2025/04/gilmar-suspende-todos-os-processos-na-justica-sobre-pejotizacao.shtml
[ii]. See the example of the recent strike by delivery drivers, who simultaneously halted their activities in the largest cities in all regions of the country: https://exame.com/ultimas-noticias/brasil/greve-dos-entregadores-quais-estados-serao-afetados/
the earth is round there is thanks to our readers and supporters.
Help us keep this idea going.
CONTRIBUTE
