After the 2017 labor reform, many doors opened for the outsourcing of core or core activities within companies. However, companies that carry out this type of contracting need to deal with legal risks.
Hiring third parties can guarantee several advantages for the contracting company, such as specialized labor, economy and service agility, however, there are necessary precautions. In order not to suffer from subsidiary liability, supporting documentation control actions can be the solution to maintain tranquility and legal certainty in the management of third parties.
In the last year alone, the labor inspection in Brazil identified 131,052 irregularities in occupational safety and health, according to the Ministry of Labor and Social Security. In addition, the Labor Courts received 1,648,535 cases in 2022, according to data from the Superior Labor Court.
This data, at first, may seem to have no connection with the outsourcing of activities, but when a service provider company is caught with irregularities or undergoes some type of process, the contracting company may need to bear the subsidiary responsibility
Carlos Augusto Weber, legal advisor at Biason Assessoria Empresarial and a lawyer who works in the labor area, says that “Subsidiary liability occurs when the principal debtor is unable to properly fulfill all obligations. With the outsourcing law, the company that hires the services of an outsourced company is secondarily responsible for labor obligations”.
Therefore, companies that hire service providers need to remember that these activities can bring legal risks if not managed properly. By not having the guarantee that the service provider complies with labor and occupational health and safety laws, it is possible that the contractor faces legal proceedings and suffers damage to its reputation.
Carlos Augusto Weber goes on to say that “It is important to have a contract signed between the Borrower and the Service Provider, but never forget to monitor compliance with the obligations of the outsourced company in relation to tax collections and payments of all installments due to workers” .
Leonardo José Stangherlin, CEO of the Insoft4 Group, points out that there are solutions for companies to avoid this type of risk and carry out this inspection easily “There are third-party management actions that can be taken within the contracting company to avoid these risks. Issues of knowledge of the legislation, monitoring the tax and labor situation of the outsourced company, in addition to caring for people, can give companies greater peace of mind”.
In this way, the first issue to have security in the management of third parties is to have knowledge about the legislation. After that, draw up good contracts with the provider, stipulating rights and duties. In addition, the relationship between the contracting company and the outsourced company’s employees is one of the ways to understand and have a better relationship during the provision of services.
However, the solution cited as the most effective for having legal certainty and tranquility in the management of third parties is the automated control of the documentation that proves the tax and labor suitability of the contractor. “In order to have security in the management of deliveries, durations, validations and control of documents of companies and people who provide outsourced services, a system is needed that standardizes and identifies the company’s documents, as well as specific documents of people according to the degree of risk and type of service to be performed” quotes Leonardo, who goes on to say: “Many companies do not manage documents, others do it manually and insecurely through spreadsheets, however, those that automate the process through specific portals, reduce costs. labor processes, increased agility in new hires and feel safer for having all documentation stored and available in a fully organized way.”
The documentation mentioned is the clearance certificates and vouchers that, when requested, prove the care that the contracting party takes in keeping its production chain within the legality. By maintaining this care Leonardo says that “The current situation of each company and service provider is also available, allowing blocking access to the company or workplace when there is non-compliance with legal obligations.”
More than just the legal security of hiring, Leonardo also raises improvements in the organizational aspect by having solutions like “Another situation observed in companies with manual control, is to see a similar process being carried out several times by different areas, usually Purchasing, HR and Security Equity. It seems absurd, but it happens and ends up generating discontent between the parties.”
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