The use of generative AI tools by Australian workers is “significantly disrupting” the operations of the Fair Work Commission, with a huge uptick in caseload and submissions that are inaccurate or have no chance of success.

To combat this, the Fair Work Commission (FWC) will soon require all applicants to state if they have used AI and if they have checked its work.

It’s also pushing for legislative changes from the federal government.

In a speech to the Victorian Bar Association last week, FWC president Justice Adam Hatcher outlined the huge increase in caseload for the commission, which he attributed primarily to generative AI.

Up until 2023, a typical year would see the FWC deal with about 30,000 matters. But by 2024-25 this had jumped to 45,000 and is projected to hit up to 55,000 in the current financial year.

“The bottom line is that, by the end of this financial year, it is likely that the FWC’s total workload will have increased by over 70 per cent in the space of three years,” Hatcher said.

“That this is principally caused by the increasing use of AI tools by potential litigants is, in my view, the only reasonable inference which can be drawn.”

‘Sheen of legal plausibility’

Generative AI tools such as ChatGPT are being used to help write submissions to FWC, but it is also making it easier to access information about workers’ rights under the Fair Work Act, and how to go about making applications and submissions.

Hatcher admitted that this has benefits for workers but said that AI tools can often give a “sheen of legal plausibility" to cases which do not have a reasonable chance of succeeding.

“Anything which can tell an aggrieved dismissed employee, within the space of a few minutes and with no prior knowledge required, that there is a thing called the FWC, that you can apply to it for an unfair dismissal remedy, what the criteria for doing so are, and that you have 21 days to apply has to be regarded as a win in terms of access to justice,” he said.

“But when the AI tool starts inventing facts to justify a weak unfair dismissal claim or, worse, can gloss up a general protection claim for a person who does not meet the qualifying period criterion for an unfair dismissal claim, then the balance of benefit and detriment becomes less clear.”

The FWC has a KPI of deciding 90 per cent of cases within 12 weeks. It is no longer meeting this and is expecting “further slippage” in the coming years, Hatcher said.

“The FWC’s capacity to deal with major cases and other time-consuming functions is being compromised,” he said.

“We have a significant number of major cases in the pipeline, including gender-based undervaluation matters, reviews of award provisions relating to work from home and part-time employment, and the establishment of minimum standards orders for digital platforms workers.”

Put to the test

To test the effectiveness of using generative AI to help with FWC matters, Hatcher tried an exercise on ChatGPT, saying he had been dismissed and asking for advice.

He provided the chatbot with some basic facts, such as the reason for the dismissal and his opinion that he had been sacked because he had complained about something a few years earlier.

ChatGPT then provided an application under the Fair Work Act, with a form ready to file along with a witness statement that contained a “substantially invented story”.

It also said that Hatcher could receive up to $40,000 in compensation.

This process took less than 10 minutes, Hatcher said.

“This was for a putative case which, on the facts I provided to ChatGPT, could not be assessed as having reasonable prospects of success,” he said.

To combat the disruptions from the technology, the FWC will soon embed in its procedures a requirement to disclose the use of AI in all forms and documents.

The form will ask applicants if they used generative AI and state they must check all work provided by AI and include hyperlinks to case law.

FWC is also lobbying the federal government for legislative amendments to allow it to deal with more matters on paper, and increased powers to dismiss matters which aren’t properly prosecuted by a party or that have no reasonable prospect of success.