The Fair Work Commission has published its final guidance note on generative AI, and it applies from 20 October 2026. Anyone who uses a tool such as ChatGPT or Copilot to help prepare a document for a Commission case will have to say so, explain how the tool was used, and confirm that a person has checked the document. That includes small business employers responding to an unfair dismissal or general protections claim, and the managers or HR advisers who write the response for them.
This article is general information for employers and managers, not legal advice.
What the Commission announced on 24 August 2026
On 24 August 2026 the Commission published a news item, Use of AI in Commission cases, together with a statement from its President, the final guidance note and a research report on how applicants are using AI. The Commission's application and response forms will be updated by 20 October so that parties can make the new disclosure inside the form.
The President's statement gives the background. It says the Commission's total workload grew by over 70 per cent in three years, and that the Commission infers the growth is principally the result of potential litigants using AI tools. An exposure draft of the guidance note was published on 24 March 2026 and 28 submissions were received.
The commissioned research surveyed 408 applicants and 211 respondents. According to the statement, approximately 40 per cent of surveyed applicants reported using AI to prepare or manage their case, and ChatGPT was the tool named by approximately 77 per cent of those who used AI.
The three requirements
The guidance note applies when generative AI is used to help create, write, edit, modify or otherwise prepare an application or any other document to be lodged in a Commission case.
- Disclose. You must state in the document that generative AI was used and how you used it. Where a form has a section on AI, completing it is enough. Otherwise the note suggests the wording "GenAI was used in preparing this document", followed by how it was used.
- Check, and say you checked. You must check the document so that all details are correct and relevant, and state in the document that you have done so. That means the facts and evidence exist, every case, law, textbook or article exists and supports what you say it supports, and every quote is accurate and comes from the stated source.
- Witness statements and declarations. These must be based on the witness's own knowledge, reflect their own words and be true as far as they know, and the document must say so.
Two details are easy to miss. First, the checking must be done by a person: the note says you cannot check a document by asking the same AI tool, or a different one, to check it. Second, the note says you should not use generative AI to create the factual content of a witness statement, although it can be used to transcribe speech or translate into English.
What does not count as using generative AI
Using a tool only to check spelling or grammar, or to format a document, is not covered. The definition also leaves out e-discovery software and ordinary search engines. An AI-generated summary of search results is treated as generative AI.
Does this apply to a small business?
Yes. The guidance note is not limited by business size or by which side of a case you are on. It applies to whoever prepares a document that will be lodged, so it covers an owner writing an employer response at the kitchen table as much as a national employer's legal team. The President's statement notes that the research included workshops with the Commission's Small Business Reference Group.
There is an extra duty for a "professional representative". The note defines that term to include a lawyer or paid agent, a human resources adviser employed by the party, and an employee or officer of a union or employer organisation representing the party. A professional representative who uses generative AI must include hyperlinks to all case law referred to in the document, where hyperlinks are available. For everyone else, hyperlinks are recommended.
What happens if you do not comply
The guidance note says non-compliance may affect your case. The outcomes it lists are documents being given less weight or disregarded, an order to pay costs incurred by another party, or the case being dismissed. It also reminds parties that knowingly giving false or misleading information to the Commission is an offence under the Criminal Code.
The note is also clear that disclosure itself is not held against you. Telling the Commission you used AI does not change how it treats the merits of your document, provided you meet the requirements.
The privacy point every employer should read
Separately from the three requirements, the guidance note says you should not give personal information about another person involved in the case, or confidential information about the case, to public generative AI or to any tool that may not keep it secure. It defines public generative AI as tools available to the general public, including both free and paid or subscription versions, and names ChatGPT, Claude, CoPilot and Gemini as examples.
For an employer this matters well before a claim arrives. A dismissal file usually contains exactly the material the note lists as personal information: names, contact details, health information, employment history and claims about misconduct. Pasting a termination letter, a medical certificate or settlement discussions into a public chatbot is the behaviour the Commission is warning against. The Commission's page Using AI to help you with your case explains the benefits, risks and requirements in plain terms.
What an SME should do before 20 October
| Step | What to do | Who owns it |
|---|---|---|
| Know what staff use | List the AI tools used for HR letters, warnings, investigation notes and policy drafting, including personal accounts | Owner or office manager |
| Set a data rule | No employee names, health details, complaints or settlement terms into public AI tools; remove identifying details first | Owner, with IT support |
| Keep a usage note | When AI helps draft an HR document, note which tool and what it did, so the disclosure can be made accurately later | Whoever drafts |
| Verify by hand | Check every case, section number and quote against the Commission's published decisions and the Federal Register of Legislation | Whoever lodges |
| Brief your representative | Ask your HR adviser, lawyer or paid agent how they use AI and how they will meet the hyperlink duty | Owner |
| Use the new forms | From 20 October, download the current form each time instead of reusing an old copy | Whoever lodges |
A short written AI use policy does most of this work. Comingwave is a technology company that provides IT consulting, cyber security and managed IT support to small and medium businesses, including reviews of which tools staff use and what data goes into them. If that would help, you can ask us for a quote.
Key takeaways
- The Fair Work Commission's generative AI guidance note was published on 24 August 2026 and commences on 20 October 2026.
- If AI helped prepare a document, you must disclose that, explain how, check the document yourself and state that you checked it.
- It applies to employers and employees alike, whatever the size of the business.
- HR advisers and other professional representatives who use generative AI must hyperlink the case law they cite.
- Personal and confidential information about a case should stay out of public AI tools.
Frequently asked questions
When do the Fair Work Commission AI rules start?
The guidance note commences on 20 October 2026. The Commission says its application and response forms will be updated by that date.
Do I have to disclose that I used spell check or grammar software?
No. The guidance note says using generative AI only to check spelling or grammar, or to format a document, is not covered.
Can I ask an AI tool to check the document for me?
No. The guidance note says the checking must be done by a person, using reliable sources such as the Commission's published decisions and official legislation.
Will the Commission treat my response differently because I used AI?
The guidance note says disclosure will not change how the Commission treats the merits of your document, provided you comply with the requirements. Failing to disclose is what creates risk.
Do the rules apply to my HR consultant or lawyer?
Yes, and they carry an added duty. A professional representative who uses generative AI must include hyperlinks to all case law in the document where hyperlinks are available.