Australia: New legislation to address AI and the Fair Work Commission's caseload challenge

The Albanese Government has moved to address the Fair Work Commission's mounting caseload, particularly in unfair dismissal and general protections dismissal matters.

On 3 June, the Government introduced the Workplace Relations Legislation Amendment (Building Cooperative Workplaces No. 1) Bill 2026. The Bill responds to a sustained increase in Fair Work Commission lodgments, driven largely by the use of AI tools by self-represented litigants. It follows a speech delivered by Fair Work Commission President Justice Adam Hatcher to the Victorian Bar Association in February 2026, in which he publicly called for legislative reform and set out the scale of the problem.

In her second reading speech, Workplace Relations Minister Amanda Rishworth said the Bill builds on the Government's first-term workplace reforms with a further set of practical changes aimed at improving how the workplace relations system operates. Consistently with that, the explanatory memorandum presents the amendments as a way of reducing procedural rigidity in the Act and improving its day-to-day operation.

The Bill

The Bill is intended to enable the Fair Work Commission to perform its functions more effectively in the face of increased applications driven by AI and paid agents. Its key measures include:

• Dispensing with jurisdictional hearings: Instead of requiring a formal threshold hearing about whether a dismissal occurred before conciliation can commence, the Fair Work Commission will generally be able to move straight to a conference directed to resolving the dispute.
• Determination on the papers: With the parties' consent, the Fair Work Commission will be able to resolve certain matters on written submissions alone, without convening a conference or hearing.
• Barring repeat applicants: Where an application has been dismissed as frivolous, vexatious or without reasonable prospects of success, the Fair Work Commission will have the power to order that the applicant cannot file further applications of a specified kind without first obtaining the Commission's permission.
• Dismissal of unmeritorious gig economy claims: The Fair Work Commission's existing power to dismiss unmeritorious applications will be extended to cover unfair deactivation and unfair termination claims brought by regulated workers in the gig economy.
• Delegation of certification power: The President will be able to delegate to senior staff the power to issue certificates confirming that a dismissal-related dispute has not been resolved, enabling parties to proceed to arbitration or court without waiting for a Commission member to perform that step.
• Supported bargaining: Employers party to a supported bargaining authorisation made less than two years ago will be able to resume bargaining without the need for a new authorisation, saving time and cost for the Fair Work Commission and the parties.
• Road transport: The Bill introduces a fit-for-purpose high-income threshold for small road transport operators who would otherwise be denied access to the Fair Work Commission's unfair contract protections.

What this means for employers

The Bill, together with the Fair Work Commission's own procedural reforms already underway, should reduce two of the main sources of pressure on the system: inefficiency in general protections proceedings and the volume of low-merit applications that AI has made easier to file.

The Fair Work Commission has also updated its case management approach. For example, some extension-of-time applications can now be considered and rejected on the papers, without first requiring a response from the employer, where the application is not reasonably arguable. The Commission has also indicated that conciliations will be shorter and confined to settlement discussions, and that they may be brought to an end promptly once it becomes clear that no resolution is likely.

Against that backdrop, early advice is more important than ever. The reforms place a premium on identifying jurisdictional objections and grounds for early dismissal at the outset of a claim, before the matter progresses further. Employers who engage advisers promptly will be better placed to assess whether a claim is susceptible to dismissal on the papers or at an early jurisdictional stage, to use the Fair Work Commission's new forms in a way that frames any objection clearly from the outset, and to avoid conceding procedural ground that might otherwise make it harder to dispose of a weak claim efficiently. Given the volume of applications now being filed, the ability to dispose of claims without a full hearing is a material practical advantage — and one that rewards early preparation.

Employers should review their current processes for managing dismissal-related claims in light of these developments, and consider whether their record-keeping and decision-making frameworks are robust enough to support an efficient response to the Fair Work Commission's revised procedures.

If you have any questions about the implications of these reforms for your organisation, please reach out to your HSF Kramer contacts.