The First Chamber of the Superior Labor Court (TST) on trial day 4 December 2012, provided the Union appeal to reinstate tax assessment notice issued in fiscal audit of the Ministry of Labour and Employment (MTE) which brought proceedings against the Bank of Brazil by hiring 50 employees (receptionists and telephone operators) through cooperatives, without due legal record. The bank sued the Labor Court for the annulment of the self, and a fine of £ 58 000, having thrived only in the second instance.
However, the TST reversed the decision of the Regional Labor Court of the 3rd Region (MG) which was favorable to the BB, and reinstated the judgment which dismissed the claims made by the bank and the consequent integrity of the tax assessment.
The process began with the debt annulment action filed administrative Bank of Brazil against Union / Ministry of Labour. As supported by the defense, the Regional Labour in Minas Gerais - MTE agency - decided to impose a fine on the understanding that there would be employment among 50 employees cooperated and the bank's branch in the city of Belo Horizonte.
In the assessment notice issued by the labor inspection stated it was verified the occurrence of the legal requirements of the employment relationship, especially, the total economic dependency, subordination and direction of employees by the bank (Articles 2 and 3 of the Consolidation of Labor Laws (CLT ). "We conclude that the performance of work under a cooperative intended to defraud the guarantees labor and social law and guaranteed in the Federal Constitution of 1988," states the document.
BB defended himself arguing that workers were cooperative that served through specific contract, through the entities to which they were bound. It further claimed that it is the cooperatives and their members to strict compliance with the contract with the policyholder services and can not be held responsible.
As the judgment of the first instance, formalized the relationship between the bank and the alleged co-operatives can not produce the effects that would result if it were legitimate and legal. "If there is no provision or outsourcing cooperative legitimate way, and having a direct employment relationship with the borrower as if on screen, answers that, even if a member of the Public Administration, for all obligations arising from such a relationship," says the decision dismissing the action.
In the TRT-3, the bank has had success with its appeal to reverse the previous sentence. The regional understood that there was no infringement as to set up an illegal outsourcing of labor unions filed. "It is impossible to analyze the presence of the characteristic elements of the employment relationship interchangeably to 50 workers, telephone operators and receptionists, tasks it seems fully 'be outsourced' within a financial institution," expresses the judgment.
With the arrival of the TST process, the Union obtained a favorable decision on your appeal. The matter was tried in the First Class, having as rapporteur Minister Walmir Oliveira da Costa (pictured). In his opinion, he consigned the Court's jurisprudence is peaceful to consider hiring illegal workers associated cooperative.
He added that the records show the existence of an agreement between the Bank of Brazil and the Ministry of Labor, with effectiveness throughout the national territory, in which the institution refrains from hiring workers through labor unions. "In this context, despite the hiring irregular workers by company filed not create an employment relationship with the organs of Public Administration (Precedent No. 331, item II, the TST and Article 37, section II, of the Constitution), presents regular the role of labor inspection, "he concludes. The Gang accompanied understanding unanimously to reinstate the verdict of first degree and the consequent integrity of the tax assessment issued by the Regional Labour.
The Bank of Brazil filed a new appeal (motion for clarification), still pending.
(Demétrius Crispin / MB)