FWC’s AI Guidance Note – a step in which direction?
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Stronger AI requirements in the Australian workplace dispute tribunal have experts questioning how they will affect those without legal experience – and by extension, judicial accessibility.
As the Fair Work Commission’s AI Guidance Note officially takes effect today (20 October), HR Leader spoke to legal experts to examine the implications of the regulations on accessibility and judicial outcomes.
Reflecting on a problem that has been growing both quickly and exponentially, barrister Ian Neil SC said the commission is dealing with an overwhelming amount of applications of all kinds - an increase of 70 per cent over the last three years - of which AI is a very significant factor in both scale and quality.
Neil praised the core requirements of disclosure, verification and authenticity that the AI Guidance Note provides, but noted that applicants will likely struggle, specifically those who base their applications on knowledge from AI.
He said: “Verification requires that every reference in a document that has been created using AI, every reference to a decision, to a statutory provision, to an aspect of the evidence, must be verified by the person creating the document, personally checked by them. And I think that requires a degree of knowledge and familiarity with the underlying source material that many applicants will struggle to possess.”
“I think the real problem is, will applicants be able to do what the guidance note requires?”
This sentiment outlines the core issue of AI – especially in a legal setting – while it may open doors and improve accessibility on the ground floor, it is unlikely to achieve favourable judicial outcomes in the long term.
In this vein, Neil said the idea of AI is often more alluring than its practice, adding that “more has been promised than has been delivered”.
Similarly, Tinashe Makamure - special counsel in Barry Nilsson’s Insurance & Health team - identified that “GenAI is a double-edged sword.
He said: “It has, on the one hand, improved accessibility in that more people seem willing to engage with the legal system through the use of GenAI. That being said, there has been a significant increase in frivolous claims with those usually involving voluminous material and placing a strain on the limited resources that Courts and Tribunals have.”
According to Makamure, this delay in outcomes has a negative effect on accessibility.
Neil explained that the quality of AI remains the core issue for those using and receiving content, not only taking up commission time with a greater amount of applications, but content that features, as it is colloquially known, AI slop.
He said: “AI is marked by sycophancy and hallucinations. It’s designed to tell people what they want to hear. And that’s been a real problem in the legal system generally,” Neil said.
Accepting that it is too soon to fully gauge the impact of AI in the sector and the impact of the FWC’s AI Guidance Note, Neil said there needs to be a more common approach across all courts and tribunals in Australia.
For the time being, Neil surmised that the guidelines only reinforce that “no one can rely entirely on AI to generate the content of documents … they have to apply their own mind to it or at least there must be some human intervention”.
“A person must stand behind what the AI creates,” he said.
As recently covered, legal and HR experts generally praised the introduction of AI regulation within the commission, but questioned how it would operate in practice – especially for those without legal expertise at the centre of application.
Makamure urged employers to acknowledge and prepare for likely increase obligations, which may necessitate extra training for HR and legal teams, and a review of internal policies that govern AI use.
He continued: “Employers must also avoid entering personal or confidential information including names, contact details, health records and information obtained through Fair Work Commission orders in public GenAI tools, as this could result in breaches of privacy obligations or Commission orders.”
RELATED TERMS
Accessibility is defined as the degree to which a good, service or setting is intended to be available to as many people as possible. It focuses on offering features that make products and services useful for individuals with impairments or special needs.
A person who presents the necessary documents to a company seeking employment chances is known as an applicant. These documents may include a resume, CV, cover letter, expression of interest, or application form.
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