By Brad Ferris · 17 October 2026
On Tuesday 20 October the Fair Work Commission's Guidance Note on the use of generative AI in Commission cases takes effect. It was published on 24 August and has drawn little attention outside employment law firms, yet it applies to every business that ends up in the Commission, which for most employers means an unfair dismissal or general protections claim. If generative AI helped prepare an application, a response, a submission or a witness statement, the document now has to say so, and say that the work was checked.
In most mid-sized businesses the person drafting those documents is the HR manager, often working late on a response with whatever AI tool is open in the browser. The guidance note reaches that person directly.
There are three requirements. First, the document must state that GenAI was used and how. Second, the author must check that every fact and piece of evidence referred to exists and is correct, that every case, piece of legislation or article cited exists and supports the position it is cited for, and that every quote is accurate. The document must then state that this checking was done. Third, a witness statement must be based on the witness's own knowledge, in their own words, and must say so.
Using AI only to check spelling or grammar, or to format a document, does not count. Drafting, summarising, restructuring and suggesting arguments all do.
The note lists the consequences plainly: documents given less weight or disregarded, an order to pay the other party's costs, or the case dismissed. According to HWL Ebsworth's reading of the change, the Commission will also modify its forms in individual rights matters to include an AI disclosure section and a checking declaration.
One extra obligation applies to professional representatives only. If they use GenAI in preparing a document, they must include hyperlinks to all case law it refers to, where links are available. For everyone else, links are recommended.
The definition is wider than many employers will assume. Alongside lawyers, paid agents and officers of unions or employer organisations, the note names "a human resources adviser employed by the other person". Put simply, an HR manager who represents their own employer in a Commission matter and uses AI to prepare the paperwork carries the same hyperlinking obligation as an external lawyer.
There is a quieter instruction as well. The note says personal information about another person in the case, and confidential information about the case, should not be given to public GenAI or to any tool that may not keep it secure. In a dismissal dispute, almost everything on the file is personal information about the former employee. That makes it a question about which tools your HR team uses, and on what kind of account.
This week supplied a timely illustration of what the second requirement is designed to catch. The Australian Financial Review reported that Deloitte faces calls to refund part of a $166,000 fee paid by the WA Government for economic analysis of a proposed university merger, after citation errors were found in the report. The AFR noted it is the second time in just over a year that calls have been made for the firm to repay government fees over errors in reports where AI had been used.
What makes the episode instructive is what the report already said about itself. Section 4.8 of the published analysis states that generative AI was used to support research collation, synthesis of information and editorial proofing, and that AI-assisted outputs were subject to a Deloitte quality review. The use was disclosed. A review was asserted. The citation problems were still in the document when it was published.
That is the gap the Commission is trying to close. A line saying AI was used informs the reader. A line saying the work was checked is a claim the author can be held to, and the note is specific about what checking means: open the case, confirm it says what you are relying on it to say, compare the quote against the source. Those are the points where AI-generated material most often fails, because an invented citation looks exactly like a real one.
There is a cost side too. The AFR also reported this week that legal fees are rising as lawyers work to rebut AI-generated material that clients bring to them. Verification is a real line item. Two hours saved drafting a response with AI, followed by three hours of checking or someone else's billable time, is a loss. The saving only holds when the checking is designed into the work from the start.
If you have a Commission matter open, or think one is likely, a short conversation with whoever handles it is worth having before Tuesday.
Agree that any document with AI involvement carries the disclosure and the checking statement, and that every case cited is opened and read by a person, with a link included. Confirm that witness statements are written from the witness's own account and in their words, rather than generated from interview notes. Decide which AI tools are approved for employee information, and make sure nothing about a live dispute goes into a free consumer account.
Then look one step wider. The Fair Work rule covers a narrow class of documents, but the habit it requires carries across the business: know where AI touched a document, and have a named person accountable for checking it before it leaves the building. A business that can answer "where did AI help with this, and who checked it?" for a Commission filing can answer the same question for a tender, a client report or a board paper. Building that habit now, on the documents where a tribunal is asking, is cheaper than building it after a client asks first.
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