Outsourcing is a reality in the country, used by all sectors of the economy and by all sizes of companies; however, this contractual modality has generated many legal conflicts because there is still no specific regulation in the country for this form of contracting.
the summary 331 of the Superior Labor Court (TST) - which has been the reference to govern this modality in Brazil - recognizes as legitimate outsourcing in specialized services related to "middle activity” of the borrower as well as in the contracting of certain types of services such as surveillance, maintenance and cleaning, but precedent 331 says nothing about the so-called outsourcing of “end activity” of companies.
The problem is aggravated because there is no clear definition for what is meant by core activity or its counterpart, which would be the middle activity, and this lack of definition places companies in a scenario of uncertainty that inhibits investments and limits the country's growth.
In the current economic scenario and in the era of globalization - where it is difficult for a product to be completed by just one company and there is a great deal of cooperation between several companies from different countries, provided by value chains and information technology - it is practically impossible to create this frontier and to separate what would be end activity and middle activity.
Currently, all sectors go through some technology solution in their production or service provision. A very thriving market, TI earned US$ 60.2 billion in Brazil and positioned itself as the 7th largest global IT market in 2012.
The lack of definition of activities that may or may not be outsourced causes great legal uncertainty, since the understanding is quite subjective and inhibits investments in sectors whose dynamics drive the hiring of outsourced services, as is the case of Information Technology activities.
To ensure that the growth achieved in recent years continues and that Brazil can stand out as an innovative and technologically advanced country, it is essential that Congress approve a law with a clear definition of the activities that can be outsourced.
Bill 4330, which has been going through the National Congress since 2004, may be the solution to this issue of outsourcing in the country. He has about "the contract for the provision of services to third parties and the relationships arising therefrom”, allowing the contracting of outsourced services for any activity, establishing the obligations that must be met by those who hire this type of service.
If the bill is approved, Brazil may experience a new moment of economic growth, with internal and external investments, security so that companies from different sectors, especially IT, can operate without the risk of having their relationships with companies third parties questioned in the future. We can live in a moment of greater generation of jobs to take advantage of the coming years of boom demographic that the country will face and generate new technology centers in Brazil, with highly specialized professionals. The result of this will be directly perceived by the consumer, who will be able to purchase a service or product with better quality and lower cost.
On the other hand, as long as the absence of a law regulating outsourcing persists, Brazil will remain in a true legal limbo, forcing companies to hire services abroad, becoming service importers – especially in the Information Technology sector whose activities can be developed at a distance – generating many high quality jobs in other countries.
The enactment of a law establishing that outsourcing can apply to any activity of a company will bring security to investments in the country. Everyone wins and we strengthen democracy itself.
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