What does the FWC’s new AI guidance mean?

The Fair Work Commission’s official Guidance Note detailing appropriate use of GenAI in cases has been generally praised, but experts wonder how it will operate in practice.

The release of an AI Guidance Note has arrived not long after a landmark success in the Fair Work Commission (FWC), in which a self-represented litigant successfully harnessed AI in building his case.

HR Leader spoke to workplace law experts to examine whether this marks a milestone in technological regulation, and what this means for managers.

Harmers Workplace Lawyers executive counsel and team leader Amy Zhang said the guidance is a positive step for employers in its specific acknowledgement of the issues arising from the use of AI by self-represented litigants.

She said: “The Guidance Note makes clear in plain and simple English what litigants need to do, the dangers associated with AI use, and squarely puts litigants on notice of what can happen if they do not comply, including the risk of cost orders.”

Further, Zhang said the required checks and declarations will hopefully reduce “AI slop” and the time it takes to comb through it.

“This will hopefully alleviate some of the resourcing pressures on the commission and have positive flow-on effects in respect to the commission’s progression and handling of matters generally,” she said.

Zhang urged employers to comply with the Guidance Note, be aware of the new forms and required declarations in commission documents, and regularly check for updates.

According to Michael Stutley and James Parkinson of the Kingston Reid Perth office, the publication “represents a balanced effort to regulate an emerging technology without stifling its capacity to improve access to justice”.

“The framework is sensible: disclosure, verification and a reinforcement of witness authenticity obligations are proportionate responses to the 7 per cent surge in lodgements the commission attributes to GenAI uptake,” they said.

However, Parkinson and Stutley identified a potential contradiction between requirement 3 in paragraph 12, which says GenAI can be used to prepare a witness statement if the witness ensures its accuracy, and paragraph 35, which says: “You should not use GenAI to create the factual content of a witness statement of declaration.”

In this way, the significant cohort of AI users that are self-represented may risk compliance if they only read the requirements.

Stutley and Parkinson suggested the tension could be resolved by a return to viva voce evidence.

Swaab employment lawyer Michael Byrnes said that action from the FWC “was not just warranted, it was imperative”.

He said: “The use of AI in the FWC by litigants has become a scourge … AI-generated submissions are, for the most part, prolix slop overwhelming the FWC and other parties in any given dispute.”

In this way, Byrnes said the requirements are both appropriate and sensible considering the problems AI has posed to the commission, including the requirement to inform the FWC when and how AI was used. In the same vein, the requirement to check documents will likely mitigate a party relying on hallucinated evidence, as seen across the legal sector.

Byrnes agreed that the witness statement requirements reflect existing requirements that they be to the best of the individual’s knowledge, and that all conditions promote transparency and aid oversight.

However, he noted that enforcement is likely to be a challenge in practice.

“There have been examples where applicants, when asked whether they have used AI for the preparation of evidence or submissions, deny it point-blank even when it is clearly evident to the FWC that they have done so,” Byrnes said.

“There must be consequences for failure to comply with the Guidance Note.”

Byrnes praised the recent FWC costs order against a party that used AI despite being advised it was not likely to succeed, and added that the Guidance Note’s reference to potential criminal offences will make it clear that there will be consequences for using AI in proceedings without declaration.

Want to see more stories from trusted news sources?
Make HR Leader a preferred news source on Google.