Breakdown of Probandi Onus in the Labor Process before the New CPC: The Dynamic Impacts Distribution of the Burden of Proof in Holding the Public Administrator in Claims Involving Outsourcing

Abstract

The Supreme Court, in considering the merits of the Direct Action of Constitutionality 16, declared the constitutionality of § 1º of Article 71 of Law 8.666/73. Given that, under the Superior Labor Court, the result was the publication of a new wording to the text of section IV of its Precedent 331, and also the inclusion of two new paragraphs (V and VI), with paragraph V being specifically dedicated to discipline the equity liability of outsourcing within the public service. With those precedents, the thesis about joint and subjective liability of the the administrative entity for labor credits owed to the employee provider of outsourced services was finally established. Given this new context, the accountability of public administrator will take place on two conditions: a) the breach of labor obligations on the part of the provider of outsourced services; and b) the negligent failure of the borrower of services as the obligations of Law 8.666/93, notably as regards the supervision of the due performance of contractual and legal obligations of the company filed as an employer. In this framework, what gained certain importance was the discussion of who bears procedurally prove the necessary elements for accountability of the public administrator. Considering the peculiarities surrounding the factual framework involving a triangular relationship of outsourcing, in which the borrower of services is an entity of the public administration, the fundamentals of the theory of dynamic distribution of the burden of proof and the principle of the better aptitude to prove leaves no doubt: the public administrator assumes the burden of proving the correctness of the selection of services by the company and the existence of regular and adequate enforcement of labor obligations by the latter towards its employees who provided services to the entity within the public administration. The present text will be analyzing the current procedural system, as well as the new model of procedural legislation whose term approaches, that is, the new Code of Civil Procedure (Federal Law 13.105/15), and how can the new system be used to support the dynamic allocation of the burden of proof.

Keywords

• Terceirização de serviços, Administração pública, Distribuição dinâmica do ônus da prova, Novo código de processo civil