Fair Work Commission responds to surge in AI-generated claims with new Guidance note

Unlike courts dealing primarily with legal practitioners, the Commission is at the frontline in its receipt of what has been described as ‘AI slop’. This includes professional-looking but frequently flawed filings produced at scale by self-represented litigants who have no professional obligation to verify what they submit. 

The Research Report identifies several AI-driven factors contributing to increased lodgements:

• jurisdictional triaging, including directing ineligible unfair dismissal applicants to general protections;

• reduction of the friction that previously caused some applicants to self-select out of the process; and 

• inflation of applicant confidence through sycophantic outputs. 

One employer reported a near-tenfold increase in contested terminations since early 2024, attributed directly to generative AI adoption, with companies spending hundreds of thousands of dollars defending speculative or hallucination-based claims.

Commission members identified generative AI use in 50–75 per cent of cases in the six months to March 2026. Conciliators described applicants whose language became noticeably more professional following breaks and whose positions shifted mid-session inconsistently with prior stances, suggesting real-time AI use during proceedings. 

The President’s Statement attributes the unprecedented 70 per cent increase in the Commission’s total workload over the past three years principally to growing AI use by potential litigants.

The Guidance Note does not exist in isolation. It places the Commission alongside four Australian courts that have issued formal AI guidance in the last six months since the Victorian Law Reform Commission’s Artificial Intelligence in Victoria’s Courts and Tribunals: Report was tabled in Parliament in February 2026, which we discussed in our Smarter Lawcast podcast series, AI and legal professional privilege.

The four courts have issued the following instruments, with our related analysis linked below:

Certain themes consistently emerge across these instruments:

• A clear distinction is drawn between public and closed AI tools, with more stringent restrictions placed on the use of publicly accessible platforms.
• The requirement to protect confidential or privileged material from being disclosed through the use of generative AI is paramount. 
• The responsibility for verifying AI-generated content rests with the individual court user.
• The Victorian Law Reform Commission's eight guiding principles serve as the common foundation underpinning the emerging guidance across jurisdictions.

Each instrument also carries enforcement consequences for non-compliance. These may include costs orders, referral to the Victorian Legal Services Board and Commissioner, and the court taking failures into account when exercising case management powers. 

For employers, the Guidance Note is a welcome first step. The verification obligations address circumstances where employers may incur significant costs defending material that can be produced quickly, with minimal effort and at almost no cost using generative AI. 

The Research Report recommends that the Commission continue to monitor AI use, refine its forms, develop practical guidance on effective AI use (including suggested prompts and worked examples), and consider longer-term options including enhanced eligibility gating and a Commission-specific generative AI tool. 

These recommendations signal that further interventions are likely as the evidence base strengthens.

The Commission’s statement adopts a measured approach, as recommended by its own research, acknowledging that generative AI can support access to justice while still requiring accountability. This approach distinguishes it from a blanket prohibition and recognises that AI use is not going away. Rather than prohibiting its use, the Guidance Note expressly states that disclosing AI use will not change how the Commission assess a document on its merits, provided the requirements are met.

Whether the new requirements meaningfully reduce the volume of ‘slop’, or poor-quality AI-generated material the Commission is currently wading through, remains to be seen. 

The Guidance Note addresses behaviour after the decision to apply has been made. However, the Research Report makes clear that AI’s most consequential influence occurs at the pre-lodgement stage, when applicants are deciding whether bring a claim at all. 

The era of unchecked AI use in Australian proceedings may be drawing to a close. From the Federal Court to the Fair Work Commission, the message is consistent: generative AI may enhance access to justice, but verification, transparency and accountability are the non-negotiable trade-offs.  

Watch this space for further developments.

This article is prepared with assistance from Marcus Jones, Law Graduate.