A lawyer said the draft guidance on how to deal with the increased workload as the use of GenAI expands recognized the need for a pragmatic approach, given that the number of applications to the Fair Work Commission had increased by more than 70% in three years.
The use of AI in Fair Work Commission applications is rapidly increasing, and as a result, the Fair Work Commission has proposed new requirements to police it. unjustified claim.
The committee found that by the end of the 2025-26 financial year, its workload was likely to have increased by more than 70 per cent over three years, and attributed this to increased use of GenAI tools by potential litigants.
On Tuesday (March 24), Fair Work Commission chairman Adam Hatcher (pictured) announced the publication of the draft. Guidance note: Use of generative artificial intelligence in committees caseIt sets out three new requirements that apply to the use of GenAI in the preparation of unfair dismissal and general protection applications submitted to the Commission.
The three requirements mandate declarations of GenAI use in Fair Work Commission applications and introduce legal check requirements and witness affirmations on witness statements.
Additionally, the Commission will require attorneys or paid representatives preparing applications for their clients to include hyperlinks to all case law referenced in the document.
These requirements are: Fair Labor Commission Rules 2024. Additionally, a new “Using GenAI” section will be added to all committee forms, as well as committee submission summaries and witness statement template documents.
“The requirement to independently check and verify information produced by AI is critical. We all know that GenAI is prone to hallucinations. Many practitioners will likely cite authorities who are not present in the submissions that GenAI helped draft,” said Emily Baxter, partner at Kingston Read.
Baxter noted that the commission’s draft guidance note allows GenAI to continue to be used in applications.
“Rather than restricting or prohibiting its use (which would likely be impossible), the Commission is providing parameters for its use and disclosure, which will only aid the efficient progression of cases before the Commission,” Baxter said.
“This appears to be a more practical way to address the rapidly expanding use of technology. However, it will not reduce the influx of claims that the Commission has been experiencing recently.”
In its draft guidance, the commission advised potential litigants not to include personal or sensitive information in GenAI prompts, highlighting the risk of violating restraining orders under the law. fair work law.
“GenAI collects and retains user data such as conversation history and prompts given to it. Even if conversations are deleted, the information given to GenAI may be stored in the training database. This may include documents and photos uploaded to GenAI,” the draft guidance note states.
Unrealistic optimism powered by AI
The commission said GenAI tools could provide potential litigants with unrealistically optimistic predictions about the prospects for success and possibly compensation.
“Especially if a litigant is self-represented, it is useful to understand whether GenAI was used to draft applications, evidence and submissions, as this can help understand the context of those documents and provide better insight into the litigant’s personal understanding of legal principles that may impact how practitioners or committees communicate with individuals,” Baxter said.
The committee warned that the material generated by the tool could be inaccurate, incomplete, outdated or simply fabricated.
“GenAI does not understand the unique factual circumstances, cultural and emotional factors, or the broader social and legal context of a particular case. The sources of information that GenAI interprets may be unreliable and the output may be biased,” the commission said in a guidance note.
Baxter recalled testing the GenAI tool, which pointed to a number of Fair Work Commission cases to support its answer.
“I asked a few more questions to verify these cases, and they provided me with references and the names of the decision members. I wasn’t satisfied with that, so I asked again, and they provided me with a hyperlink to the cases in a popular online litigation database,” Baxter said.
“I clicked on a link to access the source material, only to discover that the link (and the case) was a hallucination. Time and time again, the GenAI tool reinforced the hallucination and finally admitted that it was fabricating the answer.”
These requirements allow the Commission to reduce weight, ignore or dismiss applications, or make costs orders for applicants who fail to comply.
The Commission invites comments regarding the potential requirement for all applicants using GenAI to include hyperlinks to case law referenced in the application text.
“The inclusion of hyperlinks to case law will help users of GenAI, other interested parties, and the Commission to confirm the existence of and provide access to case law,” the commission said in a statement.
“Currently, this requirement is limited to legal practitioners and paid representatives, as it may be difficult for unrepresented individuals to include hyperlinks in their documents.”
You can submit your comment to FWC by April 10, 2026.
Carlos Tse
Carlos Tse is a graduate student journalist who writes for Accountants Daily, HR Leader, and Lawyers Weekly.
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