On September 12, 2017, the first decision recognizing the possibility of outsourcing specific activities in the aviation sector was rendered, under the regulation of Law No. 7,565/86 (Brazilian Aeronautical Code). It was the first decision in this regard in the sector after the promulgation of Law No. 13,429/2017, as of March 31, 2017, which regulates temporary work in non-rural companies, as well as labor relationships in companies providing services to third parties.
This judgment was handed down in the Public Civil Action No. 1001434-91.2016.5.02.0316 filed on August 10, 2016, by the Public Prosecutor's Office for Labor (MPT) before the 6th Labor Court of Guarulhos – São Paulo.
In this regard, the MPT required the fulfillment of an obligation determining that the Defendant, a civil aviation company, refrain from outsourcing activities related to passenger services (sale of air tickets, check-in and check-out of passengers), as well as the payment of compensation for collective damages in view of the alleged violation of Precedent 331 of the Superior Labor Court (TST).
The resulting decision – although still subject to appeal – judged the case to be groundless based on the understanding that "The supervening promulgation of Law No. 13,429/17, which authorizes the outsourcing of certain and specific services, has finalized the discussion about the validity of the normative act ruled by ANAC, being considered valid the legal acts until then performed. It should be noted that the outsourcing of ancillary services described in the case records comply with the provisions of the new law, because there is no reference to outsourcing of indiscriminate activities, but rather of certain and specific services (Article 5). There was no evidence of a purpose for ancillary services different from that of the services agreement. For these reasons, considering the supervening promulgation of the new law, in view of the existing normative instruments, Law No. 7,565/86, ANAC’s Resolution 116/09, Law No. 11,182/05 and Decree 5,731/06, I recognize the legality of contracting a company providing ancillary services to air transport ".
It is important to draw attention to the opinion held in the judgment in regard to the enforcement of Law No. 13,429/2017. Pursuant to the opinion of the 6th Labor Court of Guarulhos, the new Law also applies to services concluded prior to its effectiveness.
It is also worth emphasizing that although the judgment does not expressly allow the outsourcing of core business activities (but rather only of the activities regulated by specific aeronautical legislation), it is an important precedent for the sector.
We would like to point out that our insurance and labor departments are available to resolve any doubts and to provide further clarifications regarding the referred decision