COURSE OF LAW CLASS OF WORK: Right TOPIC: Outsourcing PROFa.

: Adriana Calvo DATE

: 20/11/2004
OUTSOURCING IN THE PROCESS OF WORK - LEGITIMACY - CONDEMNATION SOLIDARITY OR SUB
SIDIARY AND THIRD PARTY INTERVENTION: IMPLICATIONS Jorge Luiz Souto Maior Labor
Judge, Professor, Faculty of Law of Southern Mines, Masters and Ph.D. in Labor L
aw from USP. "And yet to understand the procedure better labor is crucial to und
erstand what is the orality" The organizers of this event asked me to talk about
a controversial topic. I decided to accept the challenge and I left the securit
y of the traditional subjects of the process and presented the theme statement:
Implications of outsourcing in the Process of Labor: legitimacy; subsidiary or j
oint liability, third party intervention. In fact, there is so much controversy
about that, but not because there is no room for it but because he has been trea
ted from the point of view of the general theory of the case as it should. The i
ssues surrounding this topic have often been assessed from the perspective of pr
acticality. If the claimed present preliminary defenses with illegitimacy, the v
ision is "already there, now is because it will not cause injury" or defers to p
reliminary denying employment with the borrower for services if the claimed thro
wn requires impleader, refusing to measure with the argument that the interventi
on of third parties does not fit in the work process, or defers to measure, for
convenience. Sentencing settles a liability of borrower services, taking as a ba
sis, quite simply, the Statement No. 331, of the TST. So, the question can even
arise: why deal with an issue from the perspective of the theory of the case, if
the practice has already given way? Believe, however, who had exactly that atti
tude to resolve the procedural issues from the perspective of practicality that
caused the huge problems we are facing today in the Procedural Law of Labor. 8.
Labor Summary - No. 131 - May/2000 - 9 DOTRINA This way of doing the work proces
s - that of practicality - it has two main problems. First, the vision of a prac
tice may not be to another and the consequence was that in the absence of a cons
istent theory, the procedure Labour failed to meet its main objective, which is
to establish a predictable performance of the subjects of the process. What you
see today is that there is a procedure labor, but the procedure of the Board. Th
e anguish that afflicts lawyers is not to learn the procedure Labour as a concep
t, but to know the procedure for each board, if not the judge who is serving on
the Board, at any given time. Worth noting, however: this problem was not create
d by judges of the work. The judges, in this respect are as much victims as the
lawyers. However, judges can not fail to fulfill their duty to give effect to de
eds. They need to go ahead and do it according to their persuasions. The problem
of the diversity of procedures has been generated by the lack of a consistent t
heory of doctrine and prevailing labor procedural, based on the general theory o
f the case. Second, the abandonment of procedural technique can not be justified
even with the intention of achieving practical, because the perfect application
of the procedural technique does not lead to results that are contrary to the s
implicity and speed. How BARBOSA MOREIRA warns: "Perhaps when we would say that
the technical solution to a problem eliminates or reduces the effectiveness of t
he process, distrust, first, ourselves. It is quite possible that we are confusi
ng with the limits of the technique of our own inability to dominate it and the
background explorarlhe virtualities "1 In several issues of procedural law that
Labour can hardly be detected. Take, for example, what happens with attachment o
f documents and the analysis of the requirements of initial labor and the substi
tution procedure, the burden of proof, the intervention of third parties, etc..
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COURSE OF LAW CLASS OF WORK: Right TOPIC: Outsourcing PROFa.: Adriana Calvo DATE
: 20/11/2004
But he could not be. The process is not an end in itself. He is merely a tool, a
tool for law enforcement material. A technique, based on predictability, which
allows a subject to know how the process should work the other subjects. Even if
, in substance, the outcome of the proceedings is unpredictable, the procedure s
hould be a card game open. Therefore, it is essential to build a procedural theo
ry of employment that will provide the basis for the improvement of the practica
l issues arising from day to day Together.€To construct a theory that serves as
the theoretical basis of the Labour Procedure Law is necessary, first, that you
will remember that there is a distinction between process and procedure. "Roughl
y speaking, the process is the technical instrument offered by the State to appl
y the substantive law. This instrument has its own theoretical foundations: Conc
epts and principles. Procedure is established so that the various procedural ste
ps are developed. Thus, the work process is not a process separate from civil pr
oceedings. Both have the same goal. Moreover, one can not fail to recognize: the
procedure is different labor of ordinary civil procedure. 10 Labor Summary - No
. 131 - May/2000 - DOCTRINE The lack of this perspective has significantly under
mined the labor process, for some, seeking to identify the autonomy of the work
process, detach themselves from the general theory of the case, and others, deny
ing that autonomy, are binding on all civil proceedings, even as the rules of pr
ocedure. It is important, however, be all the time, recovering the distinction.
The basic concepts of the general theory of the case apply, all in the process a
t work: competence; jurisdiction; action; conditions of action (legitimacy, inte
rest and legal possibility of application); inadmissibility; nullity proceedings
, etc.. So, as their main reasons: contradictory, and availability of ample defe
nse; instrumentality; effectiveness, access to justice, etc.. Moreover, the proc
edure is not labor the ordinary procedure provided for in the Code of Civil Proc
edure. The procedure is labor, so to speak, a species of special procedure befor
e the ordinary civil procedure, as are, for example, the summary proceedings and
summary. Established this distinction, the following challenge is to better und
erstand the procedure in CLT. Analysts in a hurry do not tire of saying that CLT
is a bunch of senseless rules and therefore it is imperative at all times be su
pplementing it with the rules of civil procedure, given the provision of Art. 76
9 of the CLT. But is it really so? Let's see. CLT was published in 1943. At that
time was the current Code of Civil Procedure, 1939. This Code was formulated ba
sed on the principle of orality. Orality, influenced by the work of Chiovenda, w
as the fad of the moment. Moreover, there were few advocates of orality. Whoever
takes the trouble to read the copies of the Journal of Forensic years 1938 and
1939 will have the perfect idea of who is speaking. CLT was naturally impregnate
d with these ideas. There is therefore a basis for the procedural rules labor, t
hat is, orality. It is not, CLT, so a bunch of senseless rules, created by a leg
islature crazy. And even better to understand the procedure labor is crucial to
understand what is the pronunciation. Orality is a mode of operation of the proc
ess, it was established, from the ideals espoused in the French Revolution, to c
orrect the defects of the written procedure that reigned in the Middle Ages. In
medieval times the process was secretive, complicated (each writing a correspond
ed contraescrito) formalist ("what is not in the file is not in the world"); thi
ng of the parties (if developed at the initiative of the parties) and fragmented
( every decision was appealed, and the evidence was collected by an investigati
ng judge). Furthermore, the role of the judge was limited, commanding the system
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COURSE OF LAW CLASS OF WORK: Right TOPIC: Outsourcing PROFa.: Adriana Calvo DATE
: 20/11/2004
legal proof (each type of evidence he had given a previous value and the outcome
of the suit was based on the quantum of evidence adduced by the parties). The p
rocedure that originated the principle of orality, known, therefore, for the ora
l proceedings, it has been, therefore, with the following characteristics: quest
for simplicity and speed, the prevalence of the written word; evidence produced
before the magistrate judge, the judge who instructs the process is the judge w
ho judges, acts performed in a single trial or in a few, are close to each other
; unappealable interlocutory decisions; momentum of the process initiated by the
judge, trial-based system of rational persuasion. Labor Summary - No. 131 - May
/2000 - 11 DOTRINA So are grounds for referral oral labor: a) the primacy of the
Word, which prioritizes the oral over the written test, which can always be for
ged, b) the immediacy provides that the judge means of assessing the veracity of
the allegations, not by analyzing what people - parties and witnesses - you say
, but how. As Plato's view,€"Writing is dead and does not transmit thought but t
he significance of discolored and imperfect signs, while in speakerphone speak t
he countenance, eyes, color, movement, tone, manner of speaking and many other m
iscellaneous Circumstance to modify and develop the meaning of words, making the
m complete and accurate comprehension ".2 The immediacy also is important to hel
p inhibit the parties to deduct the file baseless issues. As highlights BARBOSA
MOREIRA, "claims inconsistent and frivolous arguments are used with minor qualms
about pieces written than in oral presentation, subject to the riposte of the a
dversary and the control law's own judicial body - this assumptions, the evidenc
e the necessary powers and willingness to exercise them. In many preliminary abs
olutely unfounded, which are usually raised in writing in the file, it is doubtf
ul whether they got to make up if the person had to expose himself to do it, ann
oying requests for clarification or the risk of a devastating refutation in faci
em ".3 c) the physical identity of the judge who makes sense of immediacy, becau
se in no point extolling the benefits of immediacy is the judge who will judge t
he deed not the same as instructed . The Statement No. 136, TST, he established
the opposite, but in so doing, denied the effectiveness of the oral proceedings
labor. The statement, moreover, is based upon the false assumption that anyone w
ho thinks judges are classist and being the term of temporary and would not requ
ire compliance with this principle. However, truly, who is the judge presiding j
udge, although formally the decision is the collegiate. Even the temporality of
the mandates of classist obstacle is the dedication of the physical, since it is
realized that the link is restricted to the presiding judge, as, indeed, appear
ed in a number of trial time before the Statement. See the Summary below: "Effec
tively, the identity of the Judge as required by law, relates solely to the pers
on presiding judge of which is linked to the process from the statement until th
e trial ..." (Case of TRT 1 Region - 191-48, Rapporteur Homer Prates, in Labour
Law, 12 years, 1948, p. 251) d) the concentration of the acts, which is the fact
or of realization of the physical identity of the judge, as a process whose acts
are performed at times very distant from each other can hardly be judged by the
same judge who instructed by several factors. 12 Labor Summary - No. 131 - May/
2000 - DOCTRINE Concentration does not mean that all acts should be performed in
a single hearing, necessarily. Can perform more than one hearing to the trigger
ing of all procedural acts, but it is essential that the audiences are on dates
close to each other. Justifies the division of a hearing at the first hearing an
d trial and (as happened in Germany - Stuttgarter Modell), since the initial hea
ring serves to carry out an effective
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COURSE OF LAW CLASS OF WORK: Right TOPIC: Outsourcing PROFa.: Adriana Calvo DATE
: 20/11/2004
activity conciliatory, and is also seen as an act exonerating the process, as in
deed happens in all jurisdictions, that accepting the principle of orality, set
a preliminary hearing. It is noteworthy that non-completion of the initial heari
ng as exonerating act is responsible for many setbacks in iter procedural or eve
n the creation of useless acts. To achieve this ideal it is essential the presen
ce of the presiding judge at the time of the conciliation hearing, which may be
required by the party; e) irrecorribilidade of interlocutory decisions, which is
the result of the merger of the acts, the acts being targeted because there is
no interest from parties to appeal against interlocutory decisions, since such d
ecisions may be challenged on appeal which lodges the final decision. In this se
nse, the concentration of the acts and irrecorribilidade of interlocutory decisi
ons are linked in a relation of cause and effect. The concentration is possible
because the interlocutory decisions are final and interlocutory decisions are fi
nal because the acts are concentrated. Thus, not being respected to the merger,
the interlocutory irrecorribilidade loses meaning. Respect to this characteristi
c of the oral proceedings, without the presence of what gives plea, which is the
concentration of actions, causes more damage to the speed that the recorribilid
ade. Accordingly, you should think about applying the use of bill of review in t
he process of work, mainly to challenge interlocutory decisions of enterprises,
those that cause a material change in the real world (eg: Injunctions and injunc
tions), instead of using the remedy of injunction, because when the judge makes
such decisions in any way, acts with abuse of power because such power is confer
red by the Constitution. f) and increasing the powers of the preliminary investi
gation judge, which causes the judge has a greater responsibility for the delay
of the proceedings and the unfair results that the process can produce. As the c
ourt is specialized labor, the oral proceedings can not be achieved only by a na
tural aversion to the judges and lawyers have to work in a process that requires
quick and immediate responses of the subjects working in it. As emphasized PIER
O Calamandrei, "La necesidad de una tiene oralidad PREPARATIONS inmediata; her w
riting allows deferrals to mejor oportunidad el estudio, y es una buena razón th
is to abogados y jueces prefieren her deed." 4 The recognition that the procedur
e is labor supported this theoretical framework reflected in the analysis of var
ious institutes proceedings. Consider, then, what happens with the procedural im
plications of outsourcing. Firstly, it is important to remember what is meant by
outsourcing. Labor Summary - No. 131 - May/2000 - 13 DOTRINA Outsourcing is a m
anagement technique, effect of model post-Fordist production, which requires the
downsizing of the company, transferring part of the company's services to other
companies. I believe that outsourcing only becomes real, really, when the servi
ce provider has a business activity and its own procurement is for the achieveme
nt of specialist services that are not essential or permanent development of the
productive activity of the contracting company - named borrower. But I'm not he
re to discuss the Office of outsourcing. My purpose is to focus discussion on th
e procedural aspects of an outsourcing raises, on the assumption that outsourcin
g is regular, otherwise we would be facing a fraud, forming the bond directly wi
th the borrower for services. Imagine the most common cases in which outsourcing
is fully accepts: monitoring services, and maintenance and cleaning services. C
heck, initially, the question of the legitimacy passive. The legitimate to appea
r in court as passive part is the "holder of the obligation" (Article 6 of the C
ode) .5 Despite being a strictly procedural sense, the verification of the legit
imacy it gives, therefore, from the perspective of law material because it is th
is that defines the holders of relations jurídicas.6
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COURSE OF LAW CLASS OF WORK: Right TOPIC: Outsourcing PROFa.: Adriana Calvo DATE
: 20/11/2004
In an outsourcing considered valid, the doctrine precludes the setting of the em
ployment relationship with the service contractor. Thus, the contractor of the s
ervices could not be considered a legitimate party to appear in court to demand
that the employee's service provider calls their labor rights, because, as seen
in the passive pole will be part of the legitimate holder of the obligation the
understanding obligation as "a legal relationship under which a person may requi
re the provision of other economically significant" 7 or the obligations derivin
g from the will or the law, ie regardless of explicit expressions of vontade.8 H
owever , says Caio Mario Pereira da Silva, 9 the authors emphasize the duality m
odern civil obligations: debt and responsibility. Debt is the duty of certain ac
tivities that the taxpayer has the obligatory respect to the creditor. Not compl
ying, there is an active subject for the possibility of mobilizing the forces of
the State, the enforcement of the obligation. It is the responsibility that is
generated by debt, which allows to impose sanctions on the debtor, from the poin
t sheet. Thus, liability arises when a default occurs the obligation. The respon
sibility, although one of the factors of duty, walking hand in hand with debt, c
an arise independently, as in cases of someone who guarantees a debt of another
person (a guarantor, for example). 14 Labor Summary - No. 131 - May/2000 - DOCTR
INE The sentence does not create an obligatory relationship. That it is always a
ntecedent, as accents Gaius Marius, 10 but the sentence can declare a responsibi
lity of individual character, with respect to certain obligation, because the re
sponsibility does not necessarily follow the link obligatory. Liability can aris
e from wrongful act, and, indeed, indifferent to the will of the agent to cause
harm, or even aware of the violation. The fault, which gives rise to liability,
may be both contract as tort,€also called aquiliana. Aquiliana Guilt "is the tra
nsgression of a positive legal duty to respect the legal alien, or the general d
uty not to cause harm to others, when the agent's conduct is not regulated by a
convention" 11 lessons of these extracts is that pursuit of accountability throu
gh the courts is fully valid and that the person you wish to impute responsibili
ty must necessarily be passive party in demand. Resolves itself, so the problem
of the legitimacy of policyholder services to appear in court, even if they deny
their status as employer of the claimant. Such liability, which does not follow
the declaration of the relationship of the bond, is therefore limited. Can not
achieve that would be very personal obligations of the real employer, as the not
e in CTPS, delivery guides for lifting FGTS and receiving unemployment insurance
, as though the latter two aspects, the responsibility for compensatory damages
to reach him. In terms of law material, also inhibits this difference that give
the claimant, employee of the provider company, collective rights of workers cat
egory of borrowing firm. Furthermore, since the foundation of guilt, the possibi
lity of monitoring the actions of the company, exclude themselves from this resp
onsibility when services are rendered outside the premises of the borrower. Repe
at, do not take care of cases of fraud, but considered legal outsourcing. If amo
ng these companies there is relationship of subordination control over each othe
r - be it will be before the figure of the economic group, graduating with this
the employment and hence the responsibility of both (Article 2, § 2, CLT). The s
econd issue to be addressed is whether such liability is joint or ancillary (sub
sidiary)? Where there is no solidarity plurality of creditors or debtors, each c
reditor is entitled to the debt each and every borrower is responsible for all d
ebt. Labor Summary - No. 131 - May/2000 - DOTRINA 15 Under Art. 896, Civil Code,
solidarity is either conventional or run from the law.
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COURSE OF LAW CLASS OF WORK: Right TOPIC: Outsourcing PROFa.: Adriana Calvo DATE
: 20/11/2004
With regard to passive solidarity, which concerns us more closely, however, has
been gaining strength among the scholars that the concept allows the presumption
of solidarity, for more efficient satisfaction of the obligation, as happens in
other countries, although 13 this notion has not yet been incorporated into our
planning. The Statement No. 331, of Eg. TST, alludes to a liability. The term,
venia date, is unfortunate. When there are multiple debtors and creditor may req
uire all of the entire debt, it faces the possibility of solidarity, legal insti
tute that translates the situation. When the award recognizes the responsibility
of the contractor of services, their responsibility before the Labor Court, is
by all debt and unreported by dela.14 There is therefore a case of solidarity, a
rguably, as the creditor (plaintiff ) may require both (provider and taker) the
entire debt. What could possibly be in the relationship between borrower and pro
vider, as is the case for bail, it would exercise what is called "benefit of ord
er" (art. 1491, CC), whereby the guarantor is entitled to require that first to
implement the assets of the principal debtor. But the benefit of order depends o
n the initiative of the guarantor - part in the process - and should be addresse
d, along the lines of art. 1491, Civil Code, as Gaius Marius remembers DA SILVA
PEREIRA: "Defendant has the benefit of the guarantor of order, under which it ca
n require up to the defense of the suit, which is primarily run the debtor, and
so to become effective, it must nominate this property belonging rooms in the sa
me city, free, and judge, sufficient to support debt solution (Civil Code, art.
1491). "15 Nevertheless, this situation does not arise in the case of outsourcin
g because there is no express legal provision to this effect and once declared s
olidarity benefit of order is possible, as a rule. Gaius Marius teaches "the ess
ence of solidarity is that the debtor can be sued for the entire debt (totum et
totalitarian) and without the benefit of order" .16 Thus, for legal imperative,
the responsibility of the contractor of the services it is a liability, without
benefit of order. And for those more stubborn, clinging to a legal formalism, ta
ken from the wording of art. 896, Civil Code, this formalism that does not exist
in concrete, 16 Labor Summary - No. 131 - May/2000 - DOCTRINE please note the p
rovisions of art. 455, CLT,€that can be applied by analogy to this case. It has
such an article: "In contracts with the subcontractor subcontractor liable for t
he obligations derived from contract work to celebrate and falls, however, to em
ployees, the right of appeal against the main contractor for breach of those obl
igations by the first. Sole paragraph. When main contractor is excepting under c
ivil law, the regressive action against the subcontractor and the retention of m
onies due to this, to guarantee the obligations of this Article. " It is seen th
erefore that the law established the Labor Solidarity in outsourcing relationshi
ps, as it gave the employee the right of action against the borrower for service
s - contractor - and without benefit of order, because it ensured the this was a
regressive action against providers subcontractor. Indeed, solidarity between t
he maker and service provider is expressly provided for in other legal provision
s, namely Art. 15, § 1 of Law No. 8.036/90 and Art. 2, I, of Decree No. 99.684/9
0, on FGTS, and Service Order No. 87/83 on pension contributions. Finally the to
pic of our investigation, stressed that although the contract between the compan
ies deny any kind of solidarity, that clause is null and void, as its applicatio
n may prevent adimplemento of labor obligations (Art. 9 of the CLT) . We pass th
en to the third aspect of our investigation. Triggered the policy of this servic
e can call to handle the service provider?
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COURSE OF LAW CLASS OF WORK: Right TOPIC: Outsourcing PROFa.: Adriana Calvo DATE
: 20/11/2004
This question raises the issue of relevancy of third party intervention in the l
abor process. Since I already want to expose my conclusion, to consider judging
unacceptable third party intervention in the labor process, with the exception o
f the figure of assistance. The procedure works, as seen, is oral and that kind
of procedure usually does not involve the intervention of a third person, outsid
e the conflict limited initially because of the summarization of cognition estab
lished as a precondition for the effective adjudication for the kind of controve
rsy which aims to instrumentalize. This characteristic of the work process, whic
h is determined by his conduct, should lead the legal reasoning in approaching t
he subject in question, causing a denial of the application of the Institute of
third party intervention in the labor process no longer reflected as an unreason
able appeal the informality, the informality. In addition, third party intervent
ion is a kind of middle ground between the principles of singularity - the exclu
sive participation of the parties - and universality - completion of proceedings
before the general assembly, similar to the Germanic law, which prevailed in th
e Middle Ages. Is justified because such a temperament, in fact, the sentence, "
since it exists in the legal world, causing implications on legal relations of p
eople who are not only the parties, that is, in legal relations of persons who a
re not only author and defendant "17 Labor Summary - No. 131 - May/2000 - DOTRIN
A 17 In the Brazilian Civil Procedural Law prevails the rule of the principle of
singularity, which means that the intervention of a third process depends on ex
press statutory authorization, and they have to the same statutory provision be
construed narrowly, ie not apply to cases not expressly provided for, even analo
gous. In the Consolidation of Labor Laws do not provide for any possibility of i
ntervention of third parties except for the factum principis - because of recogn
ition that this institute would be incompatible with the oral proceedings that h
ad been established, since the intervention of a third would expand the field of
cognition, the proposed summary. However, the rein of art. 769, CLT, gave banks
the inclusion of the Institute of third party intervention in labor proceedings
, being justified by presenting various scenarios in which intervention would be
feasible. This situation, however, eventually materializing in defiance of thei
r own legal standards of procedure, because if the exceptions to the rule should
be expressed and if the procedure provided labor anything about third party int
ervention, which is a standard created by the Office of exception, as seen one c
ould not seek in the civil proceedings by subsidiary application, the rules of t
hird party intervention, clearly aimed at a different legal reality. Furthermore
, the specificity of the field of cognition of the Judiciary Labour (discussing
the employment relationship and its effects) inhibits naturally€concern about th
e effects that can produce the sentence in the jurisdictions of a third, for two
reasons: first, because the primary concern of the procedure is labor with the
speedy and just resolution of the conflict, and second, because, as a result of
specialization of Justice work, labor done, almost always interfere, directly or
indirectly, in the jurisdictions of other employees or employers, making the in
tervention of a third party does not eliminate subsequent conflicts over the sam
e dispute, albeit with distinct parts. The homogeneity of individual labor confl
icts therefore requires a more consonant with the characteristics of the employm
ent relationship. Accordingly, it is recognized that third party intervention in
the labor process only serves to insert complicating the dispute, which prevent
the realization of the oral proceedings and their objectives, without providing
any procedural advantage to parties, stakeholders and Justice. It can be argued
that the strictness of this position will eventually causing more harm to the l
abor process that the host of figures of third party intervention, provided the
Diploma of civil procedure. It happens that the imagined event in support of thi
s argument, which actually occurs on a day-to-day labor Together, in no way rese
mbles the types of intervention
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COURSE OF LAW CLASS OF WORK: Right TOPIC: Outsourcing PROFa.: Adriana Calvo DATE
: 20/11/2004
third parties, provided for in civil proceedings. Indeed, it is customary to acc
ept "third party intervention" in the process of work in favor of the plaintiff,
to correct the passive pole of the demand. 18 Labor Summary - No. 131 - May/200
0 - Doctrine For example, the complainant proposed complaint against X, it claim
s that it was the employer of the claimant and that the real employer was Y, for
various reasons. The judge, recognizing the likelihood of the claim contained i
n the defense and the consent of the complainant himself, ends up accepting the
intervention required by the claim. But, make up, the actor ends up being called
to join the proceedings as the Joint Parties and not as claimed third. And whil
e the inc. I, art. 75, say the condemned, who come to court to challenge the req
uest of the author, becomes part of the deal as "Joint Parties" of the complaina
nt, in fact, it is not Joint Party (RTFR 121/28; JTA 105/51, 124 / 30), or they
would not have felt the provision of inc. II, the same art. 75 of the Code, whic
h does not give any effect to the procedural default and denounced for what come
s to mind simply denies the capacity allocated to it. Having in view the interes
ts of effectiveness of the process, following the trend of increase in the power
s of the judge in conducting the process and reinforcing the idea of instrumenta
lity of procedural forms - ie the process in the service of justice and not an o
bstacle to achieving this - ends up justifying the practice, but as an anomalous
figure of integration of the dispute, never out of place as hypothesis of the i
nvolvement of third in the labor process. Furthermore, it added that the correct
ion of the passive pole of the demand is justified only when between the claimed
and the third, which is called to join the fight, there is a legal relationship
, which might reasonably arise a doubt who the real employer of the claimant. Ot
herwise, it will not fit the measure, and the trial made with respect to the cla
imed fires; decision which may be given based on preliminary, if there is prima
facie the illegitimacy passive, or merit, where the details of the characterizat
ion of jobs that have be analyzed, factually. Moreover, the new summary procedur
e to be applied to the alternative procedure of labor, in preference to the ordi
nary civil procedure, since its logical assumption the principle of orality, as
in the labor procedure, was expressly prohibited the intervention of third parti
es, except as two forms: assistance and resource injured third party, which may
occur also in labor procedure, because, as asserted Candide RANGEL Denmark, simp
le or qualified assistance, "the actor" takes the case as it is in '(art . 50, s
ole paragraph) and he is not given special opportunities in the procedure (even
if double the time), meaning that their entry does not cause procedural delays "
.18 In the case of outsourcing, only when the policy is triggered, appear still,
a different matter. The borrower may not own, and typically does not, neither t
he documentation nor awareness of facts that have permeated the claimant's emplo
yment relationship with the provider. Is unable, therefore, to present a defense
on the merits.€Unless you accept that the service provider come to fight, defen
ding his right to be left significantly impaired. It must be accepted therefore
that the provider will mind, but not as third, but as a party. Moreover, the pre
sence of the provider is not even optional is mandatory, forming what is called
passive joinder necessary (art. 47 of the Code) because the sentence must achiev
e equally to both. Labor Summary - No. 131 - May/2000 - DOTRINA 19 Accordingly,
even if the part does not require so, the judge, ex officio, may order the notif
ication of the service provider because, in certain cases there may even be coll
usion between disputing parties to harm him. As explained VICENTE GRECO SON, 19
depending on the effectiveness of the sentence of the presence of all the Joint
Parties, the hypothesis iussue iudicando intervention (intervention ordered by t
he judge),
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COURSE OF LAW CLASS OF WORK: Right TOPIC: Outsourcing PROFa.: Adriana Calvo DATE
: 20/11/2004
determining that the author provide a citation of Joint Party, under penalty of
revocation of the deed, without ruling on the merits (Rule 47 and the sole parag
raph of the Code). Note, also, that in civil proceedings, citing the Joint Parti
es required depends on the initiative of the party (without which the achievemen
t will be dismissed without trial on the merits). In the case of the work proces
s-citatória notification is made at the initiative of court, which must also occ
ur in the case of passive joinder necessary, and the responsibility for submitti
ng the address of the company have to make the deal could even be attributed to
the company that is already part of the process, because the contract was made b
etween them which led to this situation. CONCLUSION Based on these theoretical f
oundations, we can then establish a doctrine about the impact of flexibility in
the labor process. Notes: 1) Effectiveness of the Process and Procedural Techniq
ue. Journal of Procedure, paragraph 77, p. 175. 2) Apud FRANCISCO MORATO. Oralit
y, Oral Process in. Compilation of Legal Studies and Foreign Nationals, 1st seri
es. Rio de Janeiro: Forense, 1940. p. 3. 3) Cleaning up the process and prelimin
ary hearing, in Issues of Procedural Law. Fourth series. São Paulo: Saraiva, 198
9. p. 136. 4) Proceso y democracia. Buenos Aires: Ediciones Juridicas Europe-Ame
rica, 1960. pp. 168-9. 5) Grinover, Ada Pellegrini; CINTRA, Araújo and Denmark,
Candide. General Theory of Process. São Paulo: Malheiros, 1995. p. 259. 6) º F.
GRECO, Vicente. Procedural Law Sterling. Volume 1. São Paulo: Saraiva, 1989. p.
79. 7) PEREIRA, Caio Mario da Silva. Institutions of civil law. Vol II. Rio de J
aneiro: Forense, 1978. p. 12. 8) Gaius Marius, idem, p. 40. 9) Ibid, p. 28. 10)
Ibid, p. 41. 11) Ibid, pp. 286-7. 12) Ibid, p. 288. 13) "Some systems, notably t
he French and Belgian admit an extension of solidarity apart from the cases prov
ided by law, which received the name of solidarity amphibology judicial or custo
mary." (CAIO MARIO DA SILVA PEREIRA, op. Cit., P. 77). 14) It would not be requi
red because in the divisible divisible benefits, occurring insolvency of one of
the co-debtor-creditor loses to share part of the insolvent (Gaius Marius, p. 72
), and that, notoriously, does not occur in labor debts. Remember, moreover, tha
t the indivisibility is not material, but legal. "Sometimes it matters, and othe
r no matter what the object might crumble up." (Gaius Marius, p. 67) 15) Op cit.
, Vol. III, p. 462. 16) Ibid, p. 463. 17) º F. GRECO, Vicente. Brazilian Civil P
rocedural Law. Vol I. São Paulo: Saraiva, 1989. p. 134. 18) The Reform of the Co
de of Civil Procedure. 3. ed. São Paulo: Malheiros Editores, P. 254. 19) Op cit.
, P. 131.
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