“实际劳动权”的理念塑造与现实作用

劳动者是否有权要求实际从事约定的工作,对这一问题我国现行劳动法中没有明确的答案,学术界也基本没有相关讨论,现实生活中,用人单位随意安排劳动者＂待岗＂或者＂调职＂的现象却不少见。德国法经过多年司法实践的发展,逐步承认了一般条件下用人单位有义务在劳动关系存续期间按照合同约定安排劳动者工作,完善了对劳动者＂实际劳动权＂的保护。借鉴德国法的经验,在我国确立＂实际劳动权＂,不仅体现了劳动法理念的进步,而且有利于促进劳动合同实际履行,规范劳动合同变更。

The Idea and Significance of the Right of Undertaking the Work

Does an employee have the claim of undertaking the work according to the labor con- tract？ The answer can not be found in our exiting legislation, and there is no relative discussion in the academy. However, this problem needs to be solved, because it has been often reported that an employee is assigned to wait for a post or transferred to another by his employer at will. It is a com- mon sense in Germany that in general the employer is obligated to arrange a position for an employee as stipulated in the labor contract, and the relative rules have been developed after the longtime ju- ridical practice. Learning these valuable experiences from Germany to acknowledge the right of un- dertaking the work in China is not only consistent with the development of the theory of labor law, but will also conductive to the regulation on the fulfillment and amendment of the labor contract in practice.