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.. ISBN - 85-02-05620-X 1 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 ISBN - 85-02-05620-X 2 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 ISBN - 85-02-05620-X 3 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 ISBN - 85-02-05620-X 4 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. ISBN - 85-02-05620-X 5 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? ISBN - 85-02-05620-X 6 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 ISBN - 85-02-05620-X 7 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), ISBN - 85-02-05620-X 8 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. ISBN - 85-02-05620-X 9