AI and employment law

What is AI?

AI stands for artificial intelligence. It is a tool that you can use to perform tasks that you would normally have to do yourself, like, search for information or fill out documents.

There are different types of AI tools:

• Generative AI or Gen AI refers to tools that create content like text, images, music, audio and videos based on your instructions or prompts
• Closed AI is a tool that is not open to the public and protects information from being shared publicly or used to train the AI tool
• Public AI is a tool that is publicly available via the internet.

Employer’s obligations when using AI

There are many AI tools on the market that can help employers with a range of human resources (HR) tasks, like recruitment, performance reviews, rostering, allocation of tasks, wage increases, and termination of employment.

If your employer uses AI for HR tasks, they must use it responsibly and continue follow their legal obligations regarding workplace health and safety, discrimination, job displacement and redundancies, and dismissals.

Your employer should:

• be aware of the limitations and risks of AI
• choose a tool that follows Australian laws, instead of a generic or foreign AI tool
• check that any information or content created by the AI tool is correct and accurate
• make sure that they are following the law, regardless of what the AI tool says or does.

Recruitment

AI tools are being used in the recruitment process to screen applicants against the selection criteria and create a shortlist of suitable applicant.

This can be a problem if an AI tool used to recruit employees unfairly discriminates against applicants based on their background or personal characteristics, like race, age or disability.

AI learns from the data it’s trained on. If the data has gaps or bias, the AI tool may rely on stereotypes or unfair assumptions when performing tasks.

If your employer uses an AI tool to help with recruitment, they must review the results to ensure they don’t unfairly discriminate against applicants.

If you believe you have been discriminated against because of your background or personal characteristics, you may have experienced unlawful discrimination.

For more information, see Discrimination at work.

Dismissal

AI tools can make HR tasks easier and quicker, like writing termination letters. However, not all AI tools are created for HR tasks or follow Australian law.

If your employer uses AI for HR tasks, they still have to follow the law. This is especially important when making decisions about ending someone's employment. Extra care is needed when using generative AI tools, such as ChatGPT, or AI tools developed overseas.

If your employer doesn’t follow the law when ending someone’s employment, the dismissal may be unfair, or in breach of a general protection.

For more information, see Termination of employment.

Using AI in your employment case

You can use AI to research the law and prepare your case in the:

• Fair Work Commission
• Federal Circuit and Family Court of Australia
• Federal Court of Australia.

There are different rules for using AI in the commission and court. You must follow these rules. If you don’t, serious penalties may apply.

Fair Work Commission

You can use AI in your case if you:

• protect sensitive and confidential information
• check the accuracy of the information and documents you give to the Commission
• tell the Commission when and how you have used AI.

For more information, see Using AI in the Fair Work Commission.

Federal Circuit and Family Court of Australia cases

You can use AI in your court case if you:

• only used use AI responsibly
• check the accuracy of all information and content you get from AI
• not share any confidential or sensitive information
• tell the court if and how you have used AI, when asked.

For more information, see Using AI in your employment court case.

Federal Court of Australia cases

Protecting sensitive and confidential information

You must not share any confidential or sensitive information that is protected by the law, a court order or a legal privilege. This includes putting this information into a public AI tool.

You can only put information from your case into an AI tool to complete tasks related to your case. You cannot do it for any other reason.

Creating court documents

You must make sure that the information and documents you give to the court are accurate and complete. This includes:

• all court documents, especially affidavits or written statements
• written submissions
• chronologies.

Your affidavit or witness statement must be in your own words and only cover things you have seen, heard or experienced.

An expert report must only cover the expert’s area of expertise and discuss their own opinion.

You are responsible for the information that is in your court documents.

Disclosing the use of AI

You must tell the court when you have used AI to:

• summarise or analyse information that you used to state a fact or give an opinion
• create images, video recordings or sound recordings.

At the beginning of the document, you must tell the court where in the document AI was used, and how.

The court may ask whether you used AI and how you used it, even if you do not have to disclose it.

Consequences

You may face serious consequences if you don’t follow the rules for using AI, including costs orders.

Risks of using AI

There are some serious risks of using AI in your case.

AI can:

• create inaccurate, incomplete or wrong information on Australian law
• refer to old laws or cases that don’t apply anymore
• plagiarise information
• make-up fake cases, quotes or references to legal sources
• create information using overseas laws that do not apply in Australia
• create wrong or misleading information about how the law applies to your case
• tell you that wrong legal information is right.

You must be aware of the limitations of AI and the risks of using it.   

For more information, see Using generative AI in the legal system.

Get legal advice

AI cannot give you accurate legal advice about your case that fits your individual circumstances. It cannot:

• understand the unique facts of your case
• understand your cultural or social circumstances
• tell you about the strengths or weaknesses of a legal claim
• understand the differences between facts and opinions in court decisions
• make ethical decisions.

AI is not a substitute for legal advice from a qualified lawyer.

If used properly, AI can help you to complete some tasks for your case.

But you should still get legal advice to help you understand your legal obligations and how to prepare and run your case.

Last updated: August 2026