Among industry experts, frustration with the Fair Work Commission (FWC) is growing – even if few are willing to say so on the record
HR leaders and employment lawyers say employers are losing confidence in the consistency and predictability of decisions handed down by the workplace tribunal, even as they acknowledge the system is under significant strain and grappling with more complex laws and rising claim volumes.
Is there truth to these concerns or is it just the disgruntled annoyance of losing an employment dispute? Conversations with professionals across HR, law and industry suggest a more nuanced picture: a system perceived as cumbersome and unpredictable at the very time it is being asked to do more.
‘Depends who you get on the day’
Among those who regularly appear before the FWC, the biggest concern is inconsistency.
Many now joke that outcomes “depend on who you get on the day”, undermining confidence in case law and making it difficult for HR to brief executives on likely results. Even seasoned employment lawyers report being surprised by some recent decisions, particularly in unfair dismissal matters.
Conciliations, some say, can feel less like a testing of the merits and more like a quick attempt to reach a settlement.
That pressure is playing out in a context where AI-assisted claims have become easier and more frequent. With generative AI tools able to produce lengthy, highly formatted applications in minutes, employers say they are seeing more claims lodged – and more that are poorly grounded in the law.
Regular FWC users are careful not to say the system is “broken”, but even they acknowledge a wide variation in approach between members and a lack of clear, structured feedback channels from employers. The call from most stakeholders is not to weaken worker protections, but to restore balance, predictability and genuine two‑way dialogue.
‘Harsh, unjust or unreasonable’ – a built‑in grey area
Australian Industry Group director David Cross cautioned against characterising the Commission as simply inadequate, noting the agency is stretched thin and working within legislation that deliberately leaves room for judgment.
This was put on full display as HRD reached out the Commission for comment, in which it replied that workloads “continue to grow daily.”
Cross noted that employer concerns about unpredictability in FWC outcomes are not new – and are largely baked into the system itself.
“Consistency has been an issue that people have commented on for all of the 35 years that I've been working with matters that go to the Commission,” Cross said.
At the heart of the challenge, he argued, is the unfair dismissal test that has been in place since 1994, which asks whether a dismissal was “harsh, unjust or unreasonable”.
“They're really broad concepts and there's a lot of play in them,” Cross explained. “You ask 10 people in the community, when is something unreasonable, and you'll get 11 different answers.”
For employers, that can be particularly frustrating in cases where misconduct is proven but the dismissal is still overturned or compensation is awarded.
Cross is also quick to dispel the idea that outcomes can be neatly explained by a union-versus-employer divide.
While some in the HR and legal community still point to the backgrounds of FWC members – for example, whether they come from unions or employer organisations – Cross believes that is now a secondary issue.
Compared with 25 years ago, he said, the modern FWC is far more legally homogenous.
“Although people have different backgrounds, pretty much everybody who gets onto the Commission has a legal background now, or something that approximates a legal background,” he said.
“There is a sense in which everybody on the Commission is united by having a common sort of rationality that provides the grounding for their training and experience.”
In earlier decades, he noted, appointments from more operational or industrial backgrounds attracted criticism of their own.
Instead of chasing a single ‘right’ profile, Cross supports a balanced “melting pot” of members – from employer, union, operational and legal backgrounds – not to iron out every difference in judgment, but to reflect the social and economic reality the Commission operates in and to underpin its legitimacy.
“The stuff that the Commission deals with is really all about where Parliament has decided to draw the line in balancing the rights of labour and the rights of employers,” Cross said. “If you have a diverse Commission membership, that's going to help.”
A system under pressure: rising claims and AI‑assisted filings
Unlike a superior court, the FWC’s effectiveness depends heavily on parties’ willingness to engage in conciliation and accept outcomes, Cross said.
“It's an arbitral, it's a conciliation body. The Commission would sink under its own weight if the vast majority of disputes did not settle at the conciliation phase,” Cross explained.
“For conciliation to work, people generally have to trust the Commission, view it as legitimate. If we ever had a crisis over that, there’d be a real problem.”
That legitimacy is being tested at a time when the FWC is facing a sharp rise in workload. BGIS director of people and culture, Sarah Novelli, pointed to the Commission’s own acknowledgement of a significant increase in unfair dismissal and general protections claims – and the strain this is placing on capacity.
“The Commission has been clear that it is dealing with a significant increase in unfair dismissal and general protections claims, and that the current rate of lodgements is placing real pressure on the system,” Novelli said.
“Right now, the hardest part for employers isn’t access to the system, it’s predictability.”
Generative AI is part of this picture. Cross agrees that AI is changing the nature of filings, even if starting a claim has always been relatively straightforward.
Worryingly, he said some AI‑assisted submissions now cite cases that either do not exist or are entirely irrelevant. Superior courts have begun to respond, with at least one Chief Justice warning lawyers that filing AI‑generated material with fake citations could result in professional discipline or even loss of practising certificates.
Complexity ‘driving disputes rather than preventing them’
For Novelli, the problem is not only volume but design. She argues Australia’s workplace relations system has become so complex and compliance-heavy that it is now fuelling disputes instead of resolving them.
“Across 2025, employment lawyers and employer groups have been saying the same thing, that the system has become more complex and more compliance heavy, and that complexity can actually drive disputes rather than prevent them,” she said.
“What employers are struggling with isn’t access to the system, but confidence in how outcomes are reached and how consistently legal thresholds are applied.”
That lack of confidence has practical, commercial consequences, particularly for sectors operating on slim margins and with small HR functions.
“For employers, particularly those with lean HR teams, these changes mean a lot more work happening right at the start of a matter, well before you ever get to conciliation or a hearing,” Novelli said.
“Outcomes can feel highly dependent on timing and process, which makes it harder to give boards clear advice.
“In low-margin industries, long-running disputes and layered processes have very real commercial impacts. Even when an employer has a strong legal position, the time, cost and disruption involved can be significant.”
Longer time to resolution, heavier evidentiary requirements and greater uncertainty are making it more challenging for HR leaders to brief executives and boards with confidence.
Rights awareness up, but thresholds unclear
At the same time, employees are entering the system better informed about their rights, but often less clear on how those rights operate in practice.
“Employees are more aware of their rights than ever, which is a positive development, but there’s still a gap in understanding how those rights operate in practice and where the legal thresholds actually sit,” Novelli said.
“Commercial settlements are filling gaps where legal clarity would otherwise exist, and that creates uncertainty about how the law actually applies.”
When disputes resolve quickly via settlement rather than through fully tested decisions, she warned, it can blur the line between commercial compromise and legal merit.
A path forward: earlier filtering and clearer guidance
Despite the mounting frustrations, neither Cross nor Novelli argue for restricting access to the system. Instead, they highlight practical steps that could ease pressure on both employers and the Commission while preserving workers’ rights.
Novelli believes “earlier filtering” of claims that do not meet jurisdictional or legal thresholds, combined with clearer, more practical guidance in newer areas of law, would go a long way to restoring confidence.
“The Commission plays a critical role in the system, and confidence in that system relies on clarity and matters being resolved efficiently, not just on access alone. Greater clarity and consistency at the front end would go a long way to improving confidence for both employers and employees,” she said
She also called for more robust education on jurisdictional thresholds and evidentiary requirements, delivered early in the process, to stem unnecessary escalation.
“This isn’t about discouraging people from accessing the system. It’s about making sure everyone has enough information to engage with it realistically and efficiently.”
For Cross, the long-term health of the system will depend on maintaining a diverse, credible Commission membership and a high level of trust among users.
If those elements can be strengthened – and if the growing complexity and claim volumes can be managed through clearer guidance and smarter filtering – both he and Novelli believe the FWC can still play the central, trusted role in Australia’s workplace relations framework that Parliament intended.
