A terceirização ilícita pela administração pública e a (im)possibilidade de isonomia salarial entre terceirizados e servidores públicos estatutários

Abstract

This work consists in a study on illicit outsourcing by the public administration, and the possibility of judicial recognition of wage isonomy in between outsourced workers and statutory public servants. The research follows the realization that outsourcing is continually practiced by the public administration in disregard of Brazilian constitutional norms, through which countless workers perform with identity of functions in relation to those servants, albeit being less compensated. The hypothetico-deductive method of approach was chosen along with the monographic and historical procedure methods. Initially, it was examined the concept of outsourcing and the situations in which its use by the public administration can be viewed as illicit, which was done drawing upon legal theory and legislation. Following, the jurisprudence was investigated, by which the controversy about the theme was revealed together with the current absence of judgement by the Supreme Federal Court on the matter. Two solution hypotheses were systematized from the documental and bibliographic research techniques, each of which with four main foundations. Afterwards, both hypotheses were subjected to falsification; the second hypothesis was corroborated, indicating wage isonomy as an outsourced workers’ fundamental right. In conclusion, the solution verified as conformed to the constitutional order guaranteed the possibility of judicial recognition of wage isonomy, provided the presence of identity of functions and work conditions in relation to art. 39, § 1º, of the Federal Constitution. New research possibilities were suggested in regards to public administration’s responsibility, the identity of functions analysis, and state and municipality laws concerning public servants.