By The Fair Work Commission now requires parties to disclose the use of generative AI in preparing case documents, according to OnNotice. The requirements apply from 20 October 2026 and extend to legal practitioners and other professional representatives, who must also hyperlink cited case law in AI-assisted documents.
The Commission’s stated requirements are direct. Parties must tell the Commission that they used GenAI and how they used it. A person relying on GenAI must confirm the document is accurate and its content bears on the matter before the Commission. Where GenAI was used to prepare a witness statement or declaration, the person must check that it is based on their own knowledge, reflects their own words and is true to the best of their knowledge. GenAI is defined as AI tools that produce text and other content on request.
What the rules mean for employers and HR teams
The Fair Work Commission’s workload surged 70 percent from 2022-23 to 2025-26, according to Fair Work Centre, and an estimated 40 percent of applicants used AI to prepare claims. That means HR teams responding to unfair dismissal, general protections and unlawful termination matters are increasingly likely to receive AI-generated applications.
The practical consequence is twofold. First, employers defending a claim should check whether the applicant has disclosed AI use. If not, the employer can raise that omission. Second, employers preparing their own responses must apply the same disclosure and verification standards. The rules apply to anyone who prepares Fair Work Commission case documents with generative AI, not only to applicants.
The Commission has already shown it will act on AI misuse. A rare costs order was made against an applicant who let AI run the case, described by HWL Ebsworth as “Copy, paste, pay”. A separate named example involved a Macquarie University academic who used AI agents in an unfair dismissal matter. These cases signal that the Commission treats AI-assisted documents as the responsibility of the person who files them.
Disclosure, verification and witness integrity in practice
The three core obligations are disclosure, verification and witness integrity. Disclosure means stating that GenAI was used and explaining how. The Commission has not published a template, but a practical disclosure should name the tool, describe the task it performed, and confirm the human review that followed.
Verification is the heavier burden. A party must confirm that every fact, legal authority and quotation in the document is accurate. That means checking each case citation against an authorised report, confirming statutory references are current, and reading any quoted passage in its original source. AI tools are known to fabricate authorities, and the Commission will not excuse a party who files a hallucinated citation because the AI produced it.
Witness integrity is the third requirement. Where GenAI helped prepare a witness statement, the witness must confirm the statement reflects their own knowledge and words. A statement drafted by AI and merely signed by the witness may be challenged on credibility grounds. Employers should ensure any witness statement prepared with AI assistance is reviewed line by line by the witness and revised to reflect their actual language.
What the ranking pages leave unanswered
The current coverage does not address several practical questions. It is unclear whether the rules apply to documents filed before 20 October 2026 but heard after that date. The Commission has not stated whether minor or incidental AI use, such as grammar checking, triggers disclosure. The distinction between generative AI and assistive tools like spellcheck or legal research databases with AI features is not defined in the published requirements.
The interaction with section 47 of the Fair Work Act is also unexplored in the visible sources. Section 47 deals with the Commission’s powers and procedures, but the published material does not explain how the AI disclosure rules sit alongside existing case management powers. Employers should confirm the current position with the Commission or their legal advisers before relying on any assumption.
Penalties for non-disclosure are not codified in the published requirements. The costs order example shows the Commission can act, but the amount and the precise conduct that triggered it are not stated in the available sources. The maximum unfair dismissal compensation figure of $95,050, which is half the $190,100 high income threshold from 1 July 2026, gives context for the financial stakes but does not define the AI-specific penalty range.
Steps for employers before 20 October 2026
Employers should treat the next twelve months as a compliance window. The first step is to audit internal document workflows. Identify where HR, payroll and legal teams use generative AI to draft responses, submissions or witness statements. Document those uses now so the disclosure obligation is manageable when it takes effect.
The second step is to build a verification routine. Every AI-assisted document should pass through a human review that checks case citations, statutory references, quotations and factual claims against primary sources. That routine should be recorded, because the Commission may ask how a party verified a document.
The third step is to prepare for AI-generated claims from applicants. When an employer receives a claim that appears AI-generated and does not disclose AI use, the employer can raise the omission and challenge any fabricated authorities or inaccurate facts. Fair Work Centre notes that employers can challenge AI-generated submissions on those grounds.
Frequently asked questions
Does using Grammarly or spellcheck count as generative AI use?
The Commission’s definition covers AI tools that produce text and other content on request. Grammar and spellcheck tools that correct existing text without generating new content are likely outside that definition, but the Commission has not published a formal boundary. Where there is doubt, disclosure is the safer course.
Do the rules apply to lawyers or only self-represented parties?
The rules apply to anyone who prepares Fair Work Commission case documents with generative AI. Legal practitioners and other professional representatives have an additional obligation to hyperlink cited case law in AI-assisted documents.
What happens if a party forgets to disclose AI use?
The published requirements do not specify a fixed penalty. The Commission has made a costs order in at least one case involving AI misuse, which shows that non-compliance can have financial consequences. The practical risk is that the other side challenges the document and the Commission draws an adverse inference.
Sources: onnotice.com.au, Yahoo Finance Australia
Photo: Courtroom One Gavel - Flickr - Joe Gratz by Joe Gratz, CC0
