Update Fair Work Act to cover AI and automation, report says

Australia’s regulatory landscape is “not sufficient to deal with the impacts” of automated decision making and artificial intelligence in the workplace, a parliamentary inquiry has found.

Last night (Tuesday, 11 February), the House of Representatives standing committee on employment, education, and training tabled its The Future of Work report following its inquiry into the digital transformation of workplaces.

The inquiry, committee chair Lisa Chesters MP said in a statement, found that the digital transformation has exposed “significant” challenges.

This includes, the statement noted, gaps in Australia’s regulatory frameworks and workplace protections and a “very concerning and excessive” use of technology-enabled surveillance and data collection by employers.

As a result, the committee has highlighted the need for the nation to adopt measures for the safe and responsible development and deployment of these technologies across workplaces.

Chapter 2 of the committee’s report, “Frameworks and Initiatives”, noted that the “rapid digital transformation has exposed some concerning regulatory gaps in worker protections”.

It is critical, the chapter posited, that reforms relating to the use of technology in the workplace capture all workplaces and all workers.

“Employer decision making, which can be informed by technology, can have life-altering impacts on workers and their families, including termination of employment,“ the committee said.

“As demonstrated by the robodebt scheme, [automated decision making] remains largely incapable of replicating ethics and empathy found in human decision making.”

Among the recommendations put forward by the report are that:

• AI systems used for employment-related purposes be classified as “high-risk”; that mandatory guardrails for high-risk AI be adopted and implemented.
• The Fair Work Act (2009) be reviewed to ensure decision making using AI and automated decision making (ADM) is covered.
• The Fair Work Commission review the National Employment Standards to enhance employee protections regarding the use of emerging tech.
• Modern awards for high-risk industries be reviewed to ensure workers are protected where AI has “significantly transformed” job design.

The committee reflected on the double-edged sword of regulation in this space, musing that further regulation could stifle innovation relating to AI and ADM and create additional barriers for businesses while at the same time creating certainty and consistency around the protection of rights, mitigation of risks, and maximisation of benefits.

“To achieve an acceptable middle ground, the Australian government will need to navigate this contentious landscape as it seeks to leverage the opportunities of these technologies in a safe and responsible manner, and regulate high-risk settings and uses,” the committee said.

“The committee is of the view that regulatory change is required, but that business must be supported to be able to thrive. Certainty through regulation can help build public trust of AI and ADM to maximise these technologies and mitigate harms.”

It is not enough, the report proclaimed, to rely on technology developers and deployers to mitigate the risks of technologies like AI and ADM.

“Prioritising innovation at the expense of people’s right to participate in a safe, ethical, and fair digital workplace is overestimating the proposed benefits and underestimating the immense risks.”

Speaking about the inquiry and subsequent report, Chesters said: “The use of artificial intelligence (AI) and automated decision making (ADM) is significantly shaping workplaces across sectors, impacting employers, staff, regulators and the community.”

“While AI and ADM can create opportunities for workplaces such as increased productivity and efficiency, and job creation and augmentation, these benefits need to be shared between employers and workers.”

Chesters added: “To help future-proof Australia and its place in an increasingly competitive and digital world, it is essential to have the right frameworks and support in place.”

Australia needs, she stressed, a robust approach, capturing all Australian workplaces and workers. To this end, updates to the Fair Work Act and Privacy Law Act are “necessary steps”, alongside broader AI reform.