A system under strain: The “unsustainable” rise in Fair Work Commission applications

In a statement released earlier this month by Justice Hatcher, President of the Fair Work Commission, the current workload of the Fair Work Commission (Commission) has been put under the spotlight.[1]  Justice Hatcher expressed concern that the continuing growth in applications is “unsustainable within the Commission’s current operational, performance and funding structures” and compromises “the Commission’s capacity to devote resources to matters of high public value”.[2]

The statistics behind Justice Hatcher’s comments are alarming. Relevantly, the Commission received 44,075 lodgements in total across the 2024/25 financial year.[3] These numbers represent an almost 10% year on year increase and 24% increase to the five year average.

General protections and unfair dismissal applications have been identified as a driving force behind the increased applications received by the Commission. Relevantly, there has been a 13% year on year increase to general protections applications and 11% year on year increase in unfair dismissal applications.[4]

General Manager of the Commission, Murray Furlong, maintains that the Commission has “continued to deliver timely and accessible justice for the community”, however the question of how long this can continue looms larger than ever.

Suspected causes

The general protections and unfair dismissal protection mechanisms have been a part of the Australian employment landscape, both coming into play federally through the introduction of the Fair Work Act 2009 (Cth) (FW Act).  So, why the recent increase?

It is suspected that the following causes are changing the game:

Paid agents

The Commission allows for parties, with permission, to be represented by lawyers or paid agents.  Recent trends show that paid agents, rather than lawyers, are becoming a greater force in the Commission, as the number of applications involving paid agents continues to increase each year.

This has sparked concern in the industry as paid agents are not subject to the same professional obligations or ethical, financial or conduct regulations that lawyers are required to uphold.

The Commission has responded to this concern by forming the ‘Paid Agents Working Group’ which seeks to ensure paid agents are conducting themselves ethically, in an honest manner, in the best interests of their client and broadly in line with the standards expected of a lawyer.

The Commission also published a report titled ‘Paid Agents and the Fair Work Commission’[5] which flagged rising concern with paid agents. The report specifically highlighted the following concerns with paid agents:

1. payment arrangements and fee structures;
2. quality;
3. responsiveness;
4. aggression and misleading conduct;
5. acting contrary to, or without, instruction; and
6. other conduct, including ceasing to act in a way that may prejudice their client’s interests.[6]

Former Deputy Commissioner Reg Hamilton has also raised his concern on the topic, stating that some paid agents have been known to re-use application material across different clients and frequently make fundamental errors, such as incorrect dates and names.

Artificial intelligence

Self-represented applicants are increasingly turning to artificial intelligence (AI) tools to assist in drafting applications to the Commission. While AI tools can undoubtedly be useful in assisting in preparing applications, they pose a significant risk of leading to claims that have little merit.

This was recently seen in the case of Mr Branden Deysel v Electra Lift Co.,[7] where ChatGPT assisted an applicant in bringing a general protections application against his former employer. Unfortunately for the applicant, who filed his claim two and a half years after dismissal, ChatGPT failed to flag the requirement under section 366(1)(a) of the FW Act to make an application within 21 days of dismissal.

Deputy President Slevin commented on this risk in his decision, stating that “the circumstances highlight the obvious danger of relying on artificial intelligence for legal advice”.[8]  He went on to comment that the use of AI had brought on proceedings that could be “best described as hopeless and unnecessarily wasting [of] the resources of the Commission and the Respondent”.[9]

While there are issues with regards to the use of AI, Commission President Hatcher has outlined his expectation that AI can still play a larger role within the Commission in the future, potentially assisting in generating “standard correspondence” and assessing enterprise agreements for process requirements and the better off overall test.

Recent reforms

On 12 November 2025, the Commission announced significant reforms with immediate effect that change how it will manage general protections claims involving dismissals moving forward. The reforms implemented by the Commission are as follows:

1. Employee applicants filing their Form F8 with the Commission must clearly state the alleged breaches. This will require applicants to provide a more rigorous articulation of their claim, replacing the old practice of just ticking boxes.
2. Employee applicants who lodge a claim after the 21-day deadline, they must explain why exceptional circumstances apply. A Commission member will review these claims before sending the application to the respondent. Where exceptional circumstances are not proven, the case may be dismissed without the employer needing to respond.
3. Employer respondents must give detailed reasons for any jurisdictional objections in their response Form F8A as this may be their only opportunity to do so with the Commission.
4. Parties to a dispute must explain in their forms to the Commission why they need representation. These requests will generally be decided before any conciliation conference, so parties know with certainty that they can have representation.

Advice for employers

Moving forward employers faced with general protections claims involving dismissal should be aware that the information in their Form F8A response will now be more important than previously. Jurisdictional objections need to be explained clearly, and any request for representation must include detailed reasons.

Employers should also stay tuned as the Commission will commence a review of general protections applications not involving dismissal and unfair dismissal applications in 2026 to consider what further efficiency reforms can be implemented.

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[1] President’s statement on reforms to general protections dismissal application processes.

[2] Ibid at [3].

[3] Fair Work Commission Annual Report 2024-25.

[4] President’s statement on reforms to general protections dismissal application processes at [2].

[5] Paid agents and the Fair Work Commission options paper.

[6] Ibid at [6].

[7]  [2025] FWC 2289.

[8] Ibid at [7].

[9] Ibid at [7].

Authored by:

Jonathon Hadley, Partner
Luke Brusco, Lawyer