A responsabilidade trabalhista da administração pública na terceirização: como caracterizar a culpa in eligendo e in vigilando.

Abstract

The Supreme Court , in a declaratory action of constitutionality paragraph 16 , recognized the constitutionality of § 1 of article 71 of Law no. 8666/1993 , understanding that the mere breach of labor obligations by the contractor would not be able to transfer to Public Administration the liability for such charges . However, it cautioned that recorded omission of the public entity in the supervision of the obligations of the contract, said secondary liability would remain characterized . The Superior Labor Court , in compliance with drawn guideline, adapted the content of the statement of docket No. 331 , establishing that the members of the administration respond alternatively if proven their wrongful conduct in the fulfillment of obligations under the bidding law , namely , the verify the suitability of the bidder company - in eligendo guilt - and oversee the execution of the contract , including with respect to the due performance of the labor charges due to outsourced employees by service provider - in vigilando guilt . In this context , this paper will analyze not only normative devices which are able to guide the executors of the law the task of identifying , in this case , whether there was wrongful conduct on the part of the public administration , but also how diligent conduct by this could reduce the number of employees harmed by the breach of their rights .