SUPREMO TRIBUNAL FEDERAL E A NEUTRALIZAÇÃO DA RELAÇÃO DE EMPREGO: RETROCESSO SOCIAL NA INCLUSÃO PREVIDENCIÁRIA

Abstract

With the enactment of Law 13.467/17, which introduced the Labor Reform in Brazil, the new wording of art. 442-B of the Labor Code starts to discipline in the Labor Code text the self-employment in contrast to the employment relationship qualified by the factual-legal elements of article 2 in conjunction with article 3 of the Labor Code. From the beginning there was a doctrinal uproar about the meaning and scope that can be reached by the legal provision, and moving away from the doctrinal proposal of a third gender corresponding at the independent contractor, we propose a reading of the provision that takes into account not only its dialogue of sources with art. 593 of the Civil Code, but also the grounds of general repercussion extracted from the judgments laid down by the Federal Supreme Court in: ADC nº 48, ADC nº 66, ADI nº 5625. In this way, we would be admitting three categories in the world of work, with normalization distinct, namely: employment relationship, employment relationship governed by a special law (with the neutralization of the employment relationship), and, autonomous service provision. Within a Bismarckian pension system of mandatory affiliation in a contributory system, this movement represents a social setback to the process of social security inclusion in the informal labor.