FWC releases draft Guidance Note on GenAI use in Commission proceedings

On 24 March 2026, the President of the Fair Work Commission (Commission), Justice Hatcher, released draft guidelines to help users understand their obligations on using generative artificial intelligence (GenAI) and related technologies for the purposes of drafting applications and other commission documents.

In a statement published on 24 March 2026, Justice Hatcher provides that the GenAI Guidance note is intended to assist in dealing with common problems that the use of GenAI may cause the parties to a case and the Commission.

The Guidance Note provides three distinctive requirements that parties need to abide by: 

1. If parties have used GenAI to assist in the process of preparing a document to be submitted to the Commission, they have to state in the document that GenAI was used in preparing the document. 
2. Parties must also check the document, make any necessary changes so that all the details in the document are correct and relevant to the case. They should also state in the document that they have done this. 
3. If the document is a witness statement or declaration, the parties must check the document and make the necessary changes so that the witness or declaration accurately reflects the witness’ knowledge, or that it is to the best of their knowledge. This must also be declared in the document.

Parties are further obliged to not give personal information about another person involved in the matter, or confidential information about the case to a public GenAI or any GenAI that may not keep this information secure.

Additional requirements are imposed on legal practitioners and paid agents, whereby a legal practitioner or a paid agent who uses GenAI in preparing any document that is to be lodged in the Commission must include document hyperlinks to the cases being referred to in the document.

The Commission has invited interested parties to comment on the draft Guidance note, particularly with respect to whether the requirement to include hyperlinks to case law should be applicable to everyone.

Basis of the Guidance Note

The Commission has been experiencing an unprecedented amount of growth in its workloads, particularly with respect to unfair dismissal and general protections disputes. Justice Hatcher provides that it could be reasonably inferred that this is principally the result of the increasing use of GenAI tools.

The use of these technologies have caused a number of disruptions procedurally and in relation to the merits of the cases brought to the Commission. Documents are inaccurate, incomplete, made up or provide unrealistically optimistic predictions of a parties’ success and potential compensation.

Implications on employers

The Commission have indicated that the failure to abide by the requirements provided above, can have several implications on the parties such as:

1. documents being given less weight by the Commission in its consideration, or being disregarded entirely;
2. the FWC ordering parties to pay costs incurred by another party; or
3. the case being dismissed.

Justice Hatcher has also indicated that the requirements in the draft guidance are likely to be given effect in the Fair Work Commission Rules 2024 through new “Use of GenAI” sections.

There is no doubt that advancements in GenAI have reduced a number of barriers faced by employees when seeking dispute resolution at the Commission. It allows employees to quickly interpret relevant legislation and its application to their current circumstances and where due process is followed, is effective for their claims.

What employers should do

Employers can take the following measures to minimise their exposures to claims:

1. Implement clear workplace policies and contracts which provide clarity on employee’s workplace rights. Don’t rely on accessing these using GenAI. 
2. Train managers and employees on the responsible use of GenAI 
3. Review internal dispute resolution/grievance procedures
4. Ensure decision-making processes are documented, stating key considerations and reasons behind the decisions.

My Business Workplace contains well-drafted policies and contracts which are regularly reviewed for its compliance in accordance with changes in the workplace and employment legislation.

Interested employers can further submit their input on the draft Guidance Note here.

Need Help?

If these changes raise concerns or you need a second opinion, our team at Australian Business Lawyers & Advisors are ready to assist. For further guidance or to discuss your specific circumstances, please get in touch.