Mopping up AI Slop: Fair Work Commission taking action to address excessive AI claims

What you need to know

On 24 August 2026, Justice Hatcher, President of the Fair Work Commission (FWC), released a Guidance Note on the use of generative AI (GenAI) in Commission proceedings. Taking effect on 20 October 2026, the Guidance Note imposes three mandatory requirements on all parties (including employers and their representatives) who use GenAI to prepare documents for FWC proceedings.

The three requirements

Requirement 1 – Disclosure

A party must disclose in the documentation itself whether GenAI was used and, if so, describe how it was used. Common disclosable uses include legal research, organising facts and evidence, transcribing speech, translating languages, and writing or editing content.

Requirement 2 – Verification

A party must check documentation and make any necessary corrections to ensure all details are accurate and relevant to the case. This includes verifying that cases, legislation and articles cited exist and support the propositions stated, and that all extracts or quotes are accurate. Verification must be undertaken by a person, rather than another AI tool, and the document must state that the required checking has been completed.

Professional representatives (including lawyers, paid agents, union officials and HR advisers representing a party) must also include hyperlinks to all case law cited.

Requirement 3 – Witness statements and declarations

Where a document is a witness statement or declaration, the witness must confirm it is based on their own knowledge, reflects their own words, and is true to the best of their knowledge. GenAI must not be used to create the factual content of witness statements. It may however be used to transcribe a person's voice into written words, translate another language into English and can assist in creating, editing, modifying or preparing a witness statement provided the document is checked and necessary changes made to ensure that it accurately reflects the witness' own knowledge and words.

Why the FWC is acting

The President’s Statement reveals the Commission’s workload has grown by over 70% in three years, coinciding with the rise of GenAI.

FWC research found that approximately 40% of surveyed applicants had used AI to prepare or manage their case. However ‘AI-dependent’ users – those who accept AI outputs at face value without independent scrutiny – tend to have inflated expectations about their prospects, even where their case has little merit.

Consequences of non-compliance

According to the Guidance Note, non-compliance with the requirements may result in:

• documents being given less weight or disregarded by the Commission;

• costs orders against the non-complying party; or

• dismissal of the case.

Knowingly providing false or misleading information to the Commission is also a criminal offence carrying up to 12 months’ imprisonment under section 137.1 of the Criminal Code. Compliant use of GenAI will not, in itself, affect how the FWC assesses the merits of a case, but non-compliant use will.

Confidentiality warning

Parties must not input personal information about others involved in the case, or confidential information (including settlement discussions and documents obtained under Commission orders), into public GenAI tools such as ChatGPT, Claude, CoPilot or Gemini. Doing so could breach Commission confidentiality orders and constitute an offence under the Fair Work Act 2009 (Cth).

What employers should do now

While the Guidance Note is a welcome development for employers facing a rise in GenAI-assisted claims, it applies equally to respondents. Employers should act now by:

• reviewing internal processes for preparing FWC documents (submissions, witness statements and chronologies) to ensure compliance with all three requirements from 20 October 2026;

• ensuring HR and legal teams understand the mandatory disclosure and verification obligations, and that staff using GenAI for FWC matters cannot rely on AI-generated content without independent human verification;

• implementing a sign-off protocol confirming that all GenAI-assisted FWC documents have been verified by a responsible person before lodgement;

• updating internal AI use policies to address confidentiality risks in litigation - particularly the risk of inputting personal information, privileged material or settlement communications into public AI tools;

• ensuring witnesses understand that their statements must reflect their own knowledge and words, and that GenAI should not be used to create the factual content of a witness statement; and

• considering whether existing document management workflows capture the required declarations for FWC lodgements.

The Guidance Note applies to all documents lodged in Commission cases, broadly defined to include applications, submissions, chronologies, declarations, witness statements, statements of agreed facts and other evidentiary materials. Employers who regularly engage with the FWC should treat 20 October 2026 as a hard compliance deadline and note that, given the pace of GenAI’s evolution, the Guidance Note itself acknowledges these obligations will evolve too.

Please contact our team if you have any questions or want our assistance with this change.