GenAI is Here to Stay in the Fair Work Commission

Two recent Fair Work Commission matters and a new AI Guidance Note commencing on 20 October 2026 confirm that generative AI is already reshaping workplace disputes.

AI is reshaping the workplace disputes landscape

Two recent Fair Work Commission matters have drawn attention to uses of generative artificial intelligence (GenAI) in workplace disputation

In one of these recent cases, a worker used AI tools to help prepare material in a successful casual employment dispute.¹ In another, the Commission made a rare costs order after an unsuccessful applicant persisted with AI-generated submissions that did not address the relevant legal issue, despite repeated warnings.²

GenAI can improve access to information and help a self-represented party organise and communicate a case. It can also produce confident but irrelevant, inaccurate or fabricated material.

For employers, both outcomes create risk. Claims may become more polished and persistent, while the real legal and factual issues may be harder to identify beneath a large volume of generated content.

AI has lowered the practical barriers to preparing complaints, grievances, applications, submissions and evidence in a workplace dispute and employers should now assume that AI-assisted advocacy will become a routine feature.

The emerging challenge: more capable, but not necessarily more accurate, advocacy

Historically, the quality and scope of an employee complaint or self-represented claim often depended on access to legal advice and technical expertise. Now, readily available AI tools can help employees draft grievances, complaints and demand letters, analyse employment contracts, policies and correspondence, prepare chronologies, witness statements and responses to allegations, formulate workplace rights arguments and Commission applications and revise documents so they appear more formal, comprehensive and legally sophisticated.

Presentation, however, is not the same as legal merit. A lengthy document may contain a legitimate issue that requires assessment or investigation, or it may rely on inapplicable law, incorrect facts or invented authorities.

Workplace leaders need processes that test substance rather than reacting to tone, volume or apparent sophistication.

Understanding the distinction between a legally relevant issue and an irrelevant one, conducting effective legal research, assessing litigation risk and giving evidence in workplace disputes remain a human task.

Legal advisers will continue to play a critical role in workplace disputes by translating technological capability into legally sound, defensible decisions.

The Fair Work Commission Guidance Note: what changes from 20 October 2026

The Commission’s Guidance Note on the use of GenAI in Commission cases commences on 20 October 2026.³ It applies where GenAI is used to create, write, edit, modify or otherwise prepare an application or any other document to be lodged in a Fair Work Commission case. Use limited to spelling, grammar or formatting is excluded.

The Guidance Note introduces three core requirements:

1. Disclose the use of GenAI

If a document lodged with the Commission uses GenAI it must state that GenAI was used and explain how it was used. This may include using GenAI to organise evidence, research legal issues, generate content, transcribe or translate material, or edit content prepared by the person.

2. Human-check every detail

A person must check the document and make any necessary changes so that its facts, evidence, authorities, quotations and legal propositions are correct and relevant. The document must confirm that this checking has occurred and the Guidance Note recommends a specific declaration to be used to comply with the requirement. Importantly, asking the same or another AI tool to verify the material is not sufficient: the check must be performed by a person using reliable sources.

3. Apply additional safeguards to witness evidence

If GenAI assists with a witness statement or declaration, the witness must ensure that the document is based on their own knowledge, reflects their own words and is true to the best of their knowledge. The Guidance Note states that GenAI should not be used to create the factual content of witness evidence, although it may be used for functions such as transcription or translation, subject to careful checking.

Again, the Guidance Note recommends a specific declaration to be used in the document to satisfy compliance with this requirement.

The Guidance Note also warns against providing personal, confidential or legally privileged information to public GenAI systems, or to systems that may not keep that information secure.

Workplace leaders and their advisers should monitor AI-generated Commission documents for the disclosure of confidential employment or personal information. They should also take care when entering Commission orders or decisions into AI tools, as those documents may be subject to non-publication restrictions.

Non-compliance with the Commissions AI Guidance requirements may affect the proceeding, including by reducing the weight given to a document, causing it to be disregarded, exposing a party to a costs order or contributing to dismissal of the case.

Misuse of AI in Commission proceedings may also attract criminal liability. For example, it is an offence to provide the Commission with false or misleading information, including when giving evidence as a witness.

Legal practitioners remain subject to their professional and ethical obligations. Professional representatives, a category that includes lawyers, paid agents and certain HR and organisational representatives, will be held to a higher standard by the Commission and must comply with the Guidance requirements and also include available hyperlinks to all case law referred to in a document prepared using GenAI.

Why the Guidance Note matters to employers

The new requirements apply to documents lodged in Commission cases, but their significance reaches further. They establish a clear expectation that GenAI use must be transparent, human-supervised and supported by reliable source checking. Those principles provide a useful benchmark for internal workplace processes as well.

For employers, the Guidance Note has at least four practical consequences:

• Commission documents should include a specific GenAI review step before lodgement, with responsibility allocated to a named person.
• HR teams and in-house counsel should preserve a clear record of how a document was prepared, checked and approved.
• Witness preparation protocols should confirm that the evidence remains the witness’s own account and has not been reshaped by generated factual content.
• Information security controls should prevent personal, confidential, commercially sensitive or privileged material being entered into unapproved public tools.

How Moores can help

AI is now a feature of Commission proceedings and workplace disputes. Organisations prepared for this next phase of AI-assisted disputation must be able to demonstrate who used AI and for what purpose, how information was protected and outputs were checked, and who remained accountable for the final document or decision.

Moores’ Workplace Relations team can help organisations and workplace leaders implement the new Guidance Note and provide trusted, human-centred legal review of AI-assisted workplace claims and grievances.

Contact us

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^{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.}

1. Application by Gregory David Baker to deal with a dispute about changing from casual employment – [2026] FWC 3054. ↩︎
2. Sadnan Khan v Aldi Pty Ltd – [2026] FWC 3144. ↩︎
3. You can access the Guidance note on the Fair Work Commission’s website here. ↩︎