FWC defined by workload and financial pressures, Hatcher says

The challenges faced by the Fair Work Commission are reminiscent of those faced by Australian employers, necessitating a reform program to address its contemporary function.

In a speech to the Australian Industry Group PIR Conference last week, the president of the Fair Work Commission, Justice Adam Hatcher, highlighted trends within industrial and employment relations and the challenges they pose to the commission.

One of the key challenges, as identified by Justice Hatcher, was workload, which, he said, is a pressure felt by employers broadly.

The Fair Work Commission has experienced an unprecedented and seemingly exponential increase in applications, with the 2024–25 financial year receiving 44,075 lodgments, and the recently concluded FY2025–26 seeing 53,617.

Further, the bulk of this change, a 70 per cent increase, occurred within a relatively short period of three years.

Traditional matter types saw the greatest growth, with unfair dismissals up 40 per cent, general protections matters involving dismissal up 123 per cent (compared to four years ago), and other general protections disputes up 151 per cent.

Applications for unfair deactivation, which is a new jurisdiction following the Closing Loopholes legislation and only took effect in mid-2024, have risen to over 500 cases a year.

The labour market and unemployment, having exhibited relative stability during this time, have not greatly contributed to this increase; nor, according to Justice Hatcher, is the growth in applications attributable to amendments to the Fair Work Act and resulting new powers and functions conferred on the commission.

As would be expected, however, this increase did coincide with the first publicly available version of ChatGPT and further AI tool releases. In potential connection, the growth in self-representation is overwhelmingly due to the growing capabilities of AI.

In this respect, AI has transformed the type, content, and potential outcome of commission applications. As recently reported, the Fair Work Commission recently accepted Gregory Baker’s application for part-time employment classification – an application that he identified was prepared in part by artificial intelligence.

According to Justice Hatcher, “there is no sign yet that this growth is plateauing or even slowing down … that means we are not yet in a position to assess what the ‘new normal’ is going to be”.

Justice Hatcher also identified two major stress points that have slowed down commission proceedings and clearance rates. While the commission finalised a record 50,139 matters with a 94 per cent clearance rate, the number of open matters increased by 75 per cent for members and 127 per cent for matters being dealt with by staff.

A second “troubling development”, as noted by Justice Hatcher, is the increased median age of applications from 28 to 39, which, he identified, shows early signs of delays in the system that are yet to be addressed.

In this vein, he also noted that the commission is facing significant funding constraints, which are also adding pressure to the system and its ability to function.

Justice Hatcher said: “Leaving aside the funding issues, the price of taking a ‘business-as-usual’ approach to what we are experiencing would be that backlogs of unresolved cases would start to build up in the system, with the result that you would see extensive delays in getting cases heard … I am not prepared to allow that situation to develop in the Fair Work Commission”.

Noting the commission is required to function in a manner that is “quick, informal and avoids unnecessary technicalities” and in a “fair and just” way, Justice Hatcher reinforced that remedies need to be delivered in a timely way to be effective so they can move on with their life.

Similarly, for respondent employers, “they likewise need to be able to move on with their business as soon as possible without the ongoing distraction of litigation in the commission”.

Reinforcing the resource-intensive nature and significance to the national economy and public interest of the commission, he surmised the core challenge as dealing with the increasing load of individual rights work while discharging its functions appropriately.

As such, he noted the significance of the commission’s reform program, detailing that it “involved the application of new technology, including AI, the end-to-end restructuring and streamlining of our case management processes, and targeted cost savings”.

“It’s important to note at the outset that we are not necessarily undertaking this reform program at a time or pace of our choosing. We have been forced to respond in real time to the significant developments I have described, which has required us to move fast and, while hopefully not breaking things, definitely shaking them up,” Justice Hatcher said.

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