The administrative competence of the Labor Inspection to verify the existence of employment relationship

Abstract

This paper examines the administrative competence of the Labor Inspector to verify the existence of an employment relationship, including in cases of fraud against the labor legislation. The method of analysis has as its starting point the jurisprudence of the Superior Labor Court, starting from a paradigmatic judgment. Next, the doctrinal incursion is carried out, in which the main theoretical points concerning the issue are identified, especially in the scope of the following branches of Law: Administrative, Constitutional and Labor. After that, the relevant norms are highlighted, in a comprehensive path of the various hierarchical scales of the legal system. In the final part of the article, a critical analysis of the elements collected during the investigation is carried out and the conclusion is that the Labor Inspection and Labor Justice must work with the independence and harmony provided for in the Brazilian Federal Constitution. Regarding the detection of the employment relationship, it does not occur an overlap of the administrative and the judicial competence, but rather combination, in order to combat and inhibit fraud, and therefore to guarantee the effectiveness of Labor Law.