Artificial intelligence is rapidly changing the way workplace disputes are prepared, prosecuted and defended. What began as a useful tool for drafting documents and conducting research has quickly become a source of concern for the Fair Work Commission (FWC), which has reported a significant increase in the number of AI-assisted applications being filed each year.
In response, the FWC has introduced new requirements governing the use of generative artificial intelligence in Commission proceedings. The measures are designed to address concerns that AI-generated materials are contributing to delays, increasing workloads and undermining the quality and reliability of material being put before the tribunal.
For employers, the developments are significant. Not only are employees increasingly using AI to prepare unfair dismissal, general protections and workplace rights claims, but employers and their representatives may also find themselves subject to new obligations when using AI in Commission proceedings.
Why is the FWC Taking Action?
The catalyst for the FWC’s intervention appears to be the dramatic rise in AI-assisted litigation.
According to material released by the Commission, its overall workload has increased by more than 70% over the past three years, with President Justice Adam Hatcher identifying the proliferation of generative AI tools as a major contributing factor. Research commissioned by the FWC reportedly found that around 40% of surveyed applicants had used AI to assist with preparing or managing their cases.
The Commission has expressed concern that many applicants are relying heavily on AI-generated submissions without properly understanding, verifying or adapting the output. This has resulted in lengthy, repetitive and sometimes incoherent applications, as well as the inclusion of incorrect legal propositions, fabricated authorities and unsupported factual assertions.
In one widely reported matter, a Full Bench of the Commission criticised the “unconstrained use of AI” after an applicant repeatedly lodged lengthy AI-generated documents and correspondence which the Commission described as incoherent and unhelpful to the determination of the dispute. The Commission warned that such conduct wastes resources, delays proceedings and hinders its ability to fulfil its statutory functions efficiently.
Importantly, the problem has not been confined to self-represented applicants. The Commission has also identified instances where parties and representatives have relied on AI-generated legal content containing inaccurate or entirely fictional legal authorities.
The New Rules for AI Use in FWC Proceedings
In August 2026, the FWC released a new Guidance Note dealing specifically with the use of generative AI in Commission cases. The requirements will apply from 20 October 2026.
The Guidance Note introduces three core obligations.
Disclosure
Parties must disclose when generative AI has been used in preparing documents lodged with the Commission and explain how it was used. This may include situations where AI has been used for drafting submissions, organising evidence, conducting research, translating documents or editing written content.
Verification
Parties must personally verify that all information contained within AI-assisted documents is accurate, relevant and supported by legitimate evidence and legal authorities.
This includes ensuring:
- factual assertions are correct;
- evidence actually exists;
- legislation and case authorities cited are genuine;
- quotations are accurate; and
- legal authorities stand for the propositions being advanced.
The Commission has made it clear that this verification must be conducted by a human and not simply delegated to another AI tool.
Authenticity of Witness Evidence
The Commission has drawn a particularly firm line when it comes to witness evidence.
Where a witness statement or declaration is prepared with AI assistance, the witness must confirm that the contents reflect their own knowledge, their own words and are true to the best of their knowledge.
Generative AI must not be used to create factual evidence on behalf of a witness. While AI may assist with transcription, formatting or language translation, the factual content must remain the witness’s own evidence.
Consequences of Non-Compliance
The Commission’s guidance is not simply aspirational.
The FWC has expressly warned that parties who fail to comply may face significant consequences, including:
- documents being given reduced evidentiary weight;
- documents being disregarded entirely;
- costs orders;
- dismissal of claims; and
- other procedural sanctions considered appropriate by the Commission.
The guidance also serves as a reminder that knowingly providing false or misleading evidence to the Commission remains a criminal offence, regardless of whether that material originated from an AI platform.
The Bigger Picture
The Commission’s new approach reflects a broader shift across courts, tribunals and regulators. AI is no longer viewed as a niche productivity tool. It is becoming a feature of modern litigation.
Employees now have access to sophisticated drafting tools that can help them prepare claims, analyse documents and research workplace rights. As a result, employers may increasingly face claims that appear more detailed and legally sophisticated than would previously have been expected from self-represented applicants.
However, the FWC’s response sends a clear message: while AI may assist parties, it does not replace human responsibility.
For employers, the lesson is simple. AI can be a valuable tool, but workplace decisions, investigations and litigation strategies must still be grounded in evidence, sound judgment and proper human oversight. Those organisations that treat AI as an assistant rather than a substitute for critical thinking will be best placed to navigate the Commission’s evolving expectations.
If you are unsure whether your employment contracts or policies adequately protect your business, we can assist with a targeted review and update.
Get in touch!
If you’ve got any burning questions about this information or you’re not sure how it impacts your business, reach out to our team by email hello@flawlesshr.com.au
