ÔNUS DA PROVA ACERCA DE CONDUTA CULPOSA NA FISCALIZAÇÃO DAS OBRIGAÇÕES TRABALHISTAS DE PRESTADORA DE SERVIÇOS PARA FINS DE RESPONSABILIZAÇÃO SUBSIDIÁRIA DA ADMINISTRAÇÃO PÚBLICA: UM ESTUDO A PARTIR DA TESE FIRMADA NO TEMA 246 DO SUPREMO TRIBUNAL FEDERAL

Abstract

At first, this article aims at invoking labor rights and the dignity of the human person provided for in the Federal Constitution of 1988 and in Decree Law No. 2017, on the legitimacy of transferring to the public entity that takes the service the burden of proving the absence of guilt in the inspection of compliance with labor obligations due to outsourced workers by the contracted company, for the purpose of defining the subsidiary responsibility of the public power. The Superior Labor Court itself pacified through its summary 331, item IV, that the public administration only responds in a subsidiary way if it is proven that the administration acted with guilt in the inspection. It turns out that despite the pacification, a gap was left; who has to prove guilt? the employee who files the action and must prove that the administration was silent in the inspection? or the judge can invert the burden and order the administration to prove that it was not negligent in the inspection, this is the discussion that is present in the Federal Supreme Court, theme: 1118 whether or not it is possible to reverse the burden of proof. Furthermore, it is emphasized that the conclusion of this work is the result of a scientific investigation and complementary legislation, review of the specific literature, consultation with Brazilian laws, doctrine and the various events that led this approach to the STF.