Responsibility for labor funds not paid by the contractor

sailasathay

From the outset, it is important to clarify that in this article we will deal with the construction owner who does not have commercial construction activities. It is the "Client/consumer" who signs a construction contract, with the intention of seeing their renovation or project built.



In this sense, in relation to the contractor (owner of the work), the jurisprudence of the superior labor court (tst) was peaceful in the sense that the owner of the work was not considered jointly or secondary responsible for the payment of unpaid labor funds by the contractor/employer , in relation to employees or subcontractors.
This understanding was pacified through jurisprudential guidance (oj) no. 191, of the individual disputes section 1 (sdi-1) which until then provided that: "It does not give rise to joint or secondary liability in the labor obligations contracted by the contractor, unless he is the owner a construction company or developer of the work".

It turns out that as of may 11, 2017, after the judgment of the repetitive magazine appeal incident irr-190-53.2015.5.03.0090 of sdi-1, the understanding was changed, and it was defined, in a binding manner, that the owner of the work, regardless of the economic size, may be liable for the contractor's labor obligations, if the contractor's economic and financial unsuitability is found  , by analogous application of article 455 of the clt and by "Culpa in elegendo"  (fault in the choice), to the detriment of oj nº 191 of the tst.

The tst's new understanding generated WhatsApp Number List  great legal uncertainty because the owner of the work, as a rule, was merely seen as the "Client", that is, the "Consumer" of a product. With the new rule, he began to be considered responsible for his contractor's labor obligations.

The problem with this new consolidated understanding is the subjectivity of the issue, since the rule for limiting the condemnation of the construction owner is the "Economic-financial suitability" of the contractor hired.

With the change of understanding by the tst, the regional courts have decided that there is subsidiary responsibility of the construction owner in the case of a contractor without economic and financial integrity. Let's see:



"Owner of the work. No responsibility. Oj 191 of sbdi-1 of the tst and repetitive topic no. 006. The construction contract signed between the owner of the work and the contractor does not give rise to joint or secondary liability for the labor obligations contracted by the contractor, except when the owner of the work is a construction or incorporation company, according to oj 191 of sbdi-1 of the tst col. The owner of the work also remains subject to subsidiary responsibility if he hires a contractor without economic and financial suitability, in view of the analogous application of the article 455 of the clt and culpa in eligendo, as established in thesis iv, of repetitive theme no. 006 by col. Tst. (trt18, rorsum – 0010786-67.2020.5.18.0102, rapporteur celso moredo garcia, 3rd panel, 10/20/2021 )".  (trt-18 – rorsum: 00107866720205180102 go 0010786-67.2020.5.18.0102, rapporteur: celso moredo garcia, judgment date: 10/20/2021, 3rd panel).