The use of AI in Fair Work Commission cases
AI is increasingly making its way into employment litigation cases, and employers need to pay attention.
The Fair Work Commission (Commission) has released new guidance on using generative AI in proceedings before it.
The guidance is pretty straightforward: if you use AI in the preparation of documents for a Commission case, you need to own what comes out the other end.
There are three key requirements:
- Tell the Commission if and how you used AI.
- Check the document is accurate and relevant to the case, including that you have referred to any legal authorities or evidence correctly.
- If it’s a witness statement or declaration, the witness must check it reflects their own knowledge, their own words and declare it is true to the best of their knowledge.
What does this mean for employers?
AI can be a useful tool in employment litigation. It can help with drafting, organising information and getting you started. But it shouldn’t be treated as a shortcut, particularly when you’re dealing with evidence and legal authorities.
An AI tool can produce a document that sounds convincing but is inaccurate, irrelevant or simply not what a witness actually said or knows. The Commission also warns that AI tools are not a substitute for legal advice – AI may provide unrealistic predictions about your likelihood of success in a case and may be based on laws that have changed or that apply in different jurisdictions – and in some cases, that don’t even exist!
There are also broader issues to think about, including confidentiality, privacy, preserving legal privilege and what information you’re putting into an AI tool in the first place.
If you use AI as part of your preparation of documents for a Commission case, failing to meet the requirements set out above may result in your documents being disregarded by the Commission, an order of costs being made against you, your case being dismissed, or if you knowingly give false or misleading information to the Commission – imprisonment!
Our biggest takeaway?
Use AI as a tool, not as a substitute for judgement or legal advice.
If you’re dealing with a Commission matter, getting legal advice early can help you understand what can (and can’t) be safely delegated to AI, and make sure your evidence and documents meet the Commission’s requirements.
The new guidance takes effect 20 October 2026, so now is a good time for employers and HR teams to think about how AI is being used in workplace matters.
We’d love to help you navigate what this means for your organisation. Contact us at info@justitia.com.au