The public is being called on to provide valuable feedback on the Fair Work Commissions’ (FWC) draft rules on the use of generative AI. These rules encompass mandatory disclosure of AI use when submitting cases, accuracy checks, and special safeguards for witness statements.
To formally regulate how workers, employers and lawyers use AI, the FWC has released an exposure draft Guidance Note that would require such parties to disclose when they have used AI tools to prepare documents. Such AI tools include ChatGPT, Claude, Copilot or Gemini etc.
By the end of 2025/26 financial year, the Commission expects its total workload to have grown by more than 70%, in just three years. Over this same period, the use of AI-generated language in applications, particularly unfair dismissal and general protection matters has grown in widespread use. Thus, the exposure draft Guidance Note sets out three core obligations that would apply when generative AI is used for the preparation of an application, or any other document lodged for a case.
Requirements of AI Use:
Disclose AI Use
Any party who utilises AI for writing, creating, modifying or preparing a document being lodged with the FWC, will be required to explicitly disclose that AI has been used.
Failure to disclose AI use may result in the reduced weight of a document, the total disregard of it all together, costs order, or even complete dismissal of the case.
Forms and templates used by and submitted to the Commission will be updated to include a dedicated “Use of GenAI” section, to allow for users to easily meet this obligation.
Verify Each Detail
Any party using any form of AI, when preparing FWC documentation must thoroughly check and correct all content before lodgment. It is proposed that there will be a requirement for all documents to contain a statement that checks and verification of AI content has been completed prior to lodgment.
Specifically, parties must ensure that:
- References are correct and the facts / evidence actually exist.
- All cases, legislation, textbooks and articles referred to exist and legitimately support the legal propositions attributed to them.
- All extracts and quotations are accurate and are properly attributed to the correct source.
The draft exposure note makes it clear that AI itself cannot be used to verify accuracy of content, but parties must instead rely on authoritative sources such as Commission Benchbooks, case law and the Commission’s decisions database.
Extra Safeguards of Witness Statements
Where AI is used in connection with a witness statement or declaration, additional obligations would apply.
The Commission stresses that documents which are witness statements or declarations must reflect the witness’ own knowledge, rather than AI generated material.
If AI is used to edit, modify or otherwise prepare a statement or declaration, the witness or declarant are to:
- Check the document and make the necessary changes so that it is based on their own knowledge.
- Explicitly declare in the document that it is based on their own knowledge and is true to the best of their knowledge.
Opportunity for Feedback
The Commission is inviting submissions on the exposure draft Guidance Note, including on whether hyperlinking obligations should extend beyond legal practitioners and paid agents to all users of AI in Commission proceedings. Comments require lodgment by 4:00pm on 10 April 2026.
HumanKapital have extensive knowledge in the preparation of FWC documentation without the use of AI. Contact us via the link below for more information.