What your employer can and cannot do with AI
Australian employers are increasingly using AI in employment contexts: screening resumes and job applications, monitoring productivity, assessing performance, influencing rostering and task allocation, and in some cases making or recommending decisions about pay, promotion, and continued employment. This is legal — Australian law does not prohibit employers from using AI in employment contexts. But it is subject to significant constraints that many workers and, frankly, many employers do not fully understand.
Anti-discrimination law: Federal anti-discrimination legislation — the Sex Discrimination Act, Age Discrimination Act, Disability Discrimination Act, and Racial Discrimination Act — prohibits employment discrimination on protected grounds, regardless of whether a human or an algorithm is the proximate decision-maker. If an AI system produces outcomes that systematically disadvantage people on the basis of a protected characteristic, that is discrimination and the employer is liable.
Fair Work Act general protections: The general protections provisions of the Fair Work Act prohibit adverse action — dismissal, demotion, reduction in pay, adverse changes to conditions — against employees exercising workplace rights. This includes raising concerns about AI governance, requesting consultation before AI changes your role, or asserting your Right to Disconnect. If your employer takes adverse action because you raised these concerns, that is a breach of the general protections — and it does not matter whether a human or an AI made the action decision.
Privacy Act: Your employer's collection, use, and disclosure of your personal information is subject to the Privacy Act — including information collected through AI monitoring tools. The employee records exemption applies only to information directly related to the employment relationship. Data collected through AI productivity monitoring, communication analysis, or behavioural tracking may go beyond this exemption.
If your job is changing because of AI
The Fair Work Act requires employers to genuinely consult employees before making major changes that are likely to have a significant effect on their roles, duties, skills, or conditions. This is a legal obligation — not a courtesy. Most modern awards also contain explicit consultation provisions that require advance notice and genuine discussion before major workplace changes.
Genuine consultation means being given a real opportunity to provide input before decisions are made. It does not mean being informed of a decision already made. If your employer is deploying AI that significantly changes how you work — what tasks you perform, how your performance is assessed, how your work is monitored — without involving you in that process, you have grounds to raise this formally.
Your options include: discussing the concern directly with your manager or HR; raising it through your union if you are a member; or contacting the Fair Work Ombudsman (13 13 94) for advice about your rights. The Fair Work Commission can also hear disputes about failure to consult.
The Right to Disconnect in practice
Australia's Right to Disconnect — introduced through the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 — gives employees the right to refuse to monitor, read, or respond to work-related communications outside their ordinary working hours, unless that refusal is unreasonable. This applies to communications enabled by AI tools: automated task notifications, AI-generated alerts, and AI-powered messaging systems, as well as traditional email and phone.
The right protects you from the expectation — sometimes implicit, sometimes explicit — that AI tools enable and justify always-on availability. If your manager expects you to respond immediately to AI-generated work alerts at 10pm because "the system sent you the task automatically," that expectation may breach your right to disconnect. Disputes go to the Fair Work Commission, which must handle them within 14 days.
If you believe AI has discriminated against you
If you believe an AI system has produced a discriminatory employment outcome — you were not hired, were passed over for promotion, or were dismissed in circumstances that suggest systematic bias on a protected characteristic — you have complaint pathways available. The Australian Human Rights Commission handles complaints under federal anti-discrimination legislation. State and territory equal opportunity commissions handle complaints under state law. A complaint can be made regardless of whether you can prove the AI was biased — what matters is whether the outcome discriminated against you. Investigation and conciliation processes are available, and in some cases court proceedings.
