問9
頻出度★★☆
X社の要員をA社に駐在させ, A社のプロジェクトリーダの指示の下でヘルプデスク業務を行っている。このときA社がX社と取り交わす契約書として適切なものはどれか。
平成24年度 春期 ITパスポート試験 問9
ストラテジ系法務 › 労働関連・取引関連法規
This question's explanation and your answers so far.
解説
問 9
Incorrectア
A contract for work is a contract in which the contractor promises to complete a job and the ordering party pays remuneration for that result. Under a contract for work, direction and orders to the workers who actually do the job are given by the contractor that employs them (Company X), and the ordering party (Company A) is not permitted to give work instructions directly to the contractor's workers. In this question Company A's project leader gives instructions directly, so exchanging a contract for work would not match the actual situation, and it would fall under so-called disguised contracting, which is a contract for work in form but dispatch in substance. A contract for work also aims at completing a deliverable, whereas this question describes a form in which the provision of labor continues, which is another point of mismatch.
Incorrectイ
An employment contract is a contract in which a worker is engaged by an employer and performs work, and the employer promises to pay wages for it; its parties are the employer (the company) and the worker in person. What this question asks about is the contract document exchanged between two companies, Company A and Company X, and an employment contract cannot be concluded between corporations. Note also that the personnel in this question remain employed by Company X while receiving direction and orders from Company A, so Company A does not thereby become their employer. If Company A were to hire those personnel directly, an employment contract would be the document, but that is a separate matter from the premise of this question, in which personnel of Company X are stationed on site.
Incorrectウ
A sales contract is a contract in which the seller transfers a property right to the buyer and the buyer promises to pay the price; its object is a property right such as ownership of goods or software. What is given and received in this question is help desk work, a human service, and nothing whose ownership is transferred is involved. The provision of personnel cannot be handled with a sales contract, so it is clearly inappropriate as a contract type.
- エ
正解 The correct answer is エ, a worker dispatch contract. Breaking the situation down, three facts can be read out: (1) the company that employs the personnel is Company X; (2) the place where those personnel are stationed and actually work is Company A; and (3) the person who gives work instructions (direction and orders) is Company A's project leader. Worker dispatch means an arrangement in which the dispatching company (here Company X) sends workers it employs itself to the receiving company (here Company A), and those workers work for the receiving company under the receiving company's direction and orders. Its greatest characteristic is that the employment relationship remains between the dispatching company and the worker, while only the relationship of direction and orders arises with the receiving company, and the description in this question fits that definition exactly. The contract document exchanged between the two companies, Company A (the receiving company) and Company X (the dispatching company), is therefore a worker dispatch contract, and the Worker Dispatch Act requires it to specify such matters as the work to be performed, the place of work, the person who gives directions and orders, the dispatch period, working days and working hours, and the procedure for handling complaints. In addition, help desk work is the continuous handling of inquiries, that is, the provision of labor itself rather than work whose nature is to complete and deliver a specific deliverable, and that point also backs up judging this as dispatch rather than a contract for work.
ここがポイント
- Whether an arrangement is worker dispatch or a contract for work is judged by who gives the direction and orders. In dispatch the employment relationship lies with the dispatching company while the relationship of direction and orders lies with the receiving company, the two being separated, and a worker dispatch contract is concluded between the receiving company and the dispatching company. In a contract for work, direction and orders are also given by the contractor that employs the workers, and the ordering party cannot instruct the workers directly. Using a contract for work while the ordering party gives instructions directly results in disguised contracting.
- Contract types are used according to their object: a contract for work is about completing a job (a deliverable), worker dispatch is about supplying labor, employment is about work and wages between a company and the worker in person, and sale is about transferring a property right. When companies agree between themselves on stationing personnel and on direction and orders, the applicable document is a worker dispatch contract.
用語