The expression “pejoização” appears in the labor field as a kind of fraud in the hiring of employees through legal entities (PJs), with the supposed purpose of masking an employment relationship and precarious workers' rights.
However, despite the fact that there are, in fact, abuses and fraud involving the hiring of some workers in this format, this contractual modality is a licit type of outsourcing and is implicitly included in article 4-A, §2, of Law 13429/17.
This was the guideline endorsed by the Federal Supreme Court (STF) which, after numerous debates, considered pejotization a licit type of contract, in which the provision of services is carried out by the partner(s) of a legal entity, under the condition of hypersufficient worker(s). Thus, the autonomy of the will of these workers was honored, giving them, as a rule, power to negotiate their working conditions. In this sense, the decisions handed down in Constitutional Claims 47,843 and 56,132 were supported by the judgments in ADPF 324 and RE 958,252.
Analyzing the ratio decidendi of recent STF decisions involving this issue, it can be concluded that the issue of pejotization, when it involves hypersufficient workers — thus considered those professionals who, in the exercise of their negotiating autonomy, celebrate, without vice of consent, other forms of “division of labor” — presents significant changes in relation to the judgment parameters that must be observed by the labor courts, in view of the binding decisions of ADPF 324 and RE 958252.
This new position, which admits and favors the autonomy of the will of the hypersufficient, liberal professional worker, is already echoed by the Superior Labor Court (TST) as inferred from the decision handed down in case n. RR-1976-42.2015.5.02.0032.
Thus, based on the principle of legal certainty and the necessary observance of the binding understanding of the STF, which established in Theme 725 (Outsourcing of services to carry out the core activity of the company) the thesis that “outsourcing or any other form of division of labor between different legal entities”, a new guideline is presented, which should guide the judgments of labor lawsuits.
Aligned with this new orientation of the STF, that the hypersufficient worker, in the enjoyment of his contractual freedom, can establish a contractual bond distinct from the classic CLT model, it can be said that the worker's intention, of subsequently claiming the recognition of an employment bond , still encounters an insurmountable obstacle in objective good faith, supported by articles 187 and 422 of the Civil Code (CC), due to the application of venire contra factum proprium.
Indeed, when proposing or negotiating with the contracting company for its services a work regime through its legal entity, enjoying the contractual and fiscal benefits of this contractual modality, the service provider creates with its initial behavior — factum proprium, a legitimate expectation that was later vilified by a second, disloyal and contradictory behavior — the filing of a labor claim — venire.
Labor jurisprudence has evolved and currently has several decisions that accompany and accept this thesis, dismissing the claims filed in this regard.
It seems clear to us, therefore, that the contradictory behavior of filing a labor claim, with a request for recognition of employment, breaks the expectation of loyalty that was established by the parties at the time of hiring.
Indeed, in addition to functioning as a rule of conduct, good faith also presents itself as a limitation to the exercise of subjective rights. From this perspective, the holder of a right cannot act in an unregulated manner, without any limitation.
In other words, good faith exercises control over the exercise of rights, so that their practice meets objective good faith, so that any conduct that confronts the socially pre-established limit is configured as an illicit conduct , in the form of article 187 of the CC.
For these reasons, considering that the hypersufficient worker's lack of loyalty is an affront to objective good faith, thus revealing itself to be illicit, any labor claim must, in light of the dictates and limitations imposed by this principle, provided for in article 422 of the CC, be dismissed, when it is not alleged and proven defect of consent.