Decree No. 9,507/18, published on September 24, extends the possibility of hiring outsourced workers by the direct federal public administration and public companies and companies controlled by the Federal Government.

After the judgment on the Objection of Breach of Fundamental Precept No. 324 and Extraordinary Appeal No. 958252, in which the Federal Supreme Court (STF) recognized the legality of outsourcing in all stages of the productive process of private sector business activities, the enactment of Decree No. 9,507/18 revoked Decree No. 2,271/97, which governed the same subject, but specifically established that activities should be performed indirectly (outsourcing): conservation, cleaning, security, surveillance, transportation, copying, reception, reprography, telecommunications, maintenance of buildings, equipment, and installations.

In addition, the former decree referred to the direct federal public administration, government agencies and foundations, while the new decree covers public companies and companies controlled by the Federal Government.

With its entry into force set for January 22 of next year (repeal period of 120 days), Decree No. 9,507/18 will be in line with Law No. 13,467/17 (the Labor Reform), which extended the concept of outsourcing. The text of the decree provides for the publication of an act by the Ministry of Planning, Development, and Management that will define the services to be hired preferentially through outsourcing.

The new decree concentrates its provisions on an indication of situations in which the use of outsourcing is prohibited. For the direct federal public administration, government agencies and foundations, services may not be outsourced when they: (i) involve decision-making in the areas of planning, coordination, supervision, and control; (ii) are considered strategic for the body; (iii) are related to police, regulatory, public service, and sanctioning power; or (iv) are inherent to the functional categories covered by the body's career plan, except for when there is a legal provision to the contrary or in the event of an extinguished position within the scope of the general staff.

Auxiliary, instrumental, or ancillary activities to the abovementioned services may be carried out by outsourced workers, except for activities related to the exercise of police power, which cannot be performed indirectly.

For public companies and companies controlled by the Federal Government, services that require the use of professionals with assignments inherent to the positions included in their job and salary plans cannot be outsourced, except in cases of temporary services, technology upgrades, or service specialization, and also when the company cannot compete in the competitive market in which it operates.

The new decree stipulates that contracts entered into with outsourced companies must contain clauses that cover the labor risks to which the public administration is subject, since there is only secondary responsibility on the part of the public administration when it fails to properly supervise the obligations assumed and provided by the company hired.