5 WHS Right of Entry Construction Lessons | Construction Site Security & Bullying

WHS Right of Entry: Lessons in Site Security and Stopping Workplace Bullying From Union Officials

In the high-stakes world of Australian infrastructure, a principal contractor’s site entry policy is often the first line of defence.

The recent Federal Court ruling in B.M.D. Constructions Pty Ltd v CFMEU (No 3) [2026] FCA 169 highlights a growing tension on Brisbane worksites: the line between a Union’s “Right of Entry” and a worker’s right to a site free from harassment and bullying and drama. This case was terribly sad to read.

The Case: When Entry Becomes Obstruction

The Centenary Bridge Upgrade project became a legal battleground when BMD Constructions alleged that Union officials repeatedly bypassed safety protocols. While the legal technicalities focused on “non-admissions” in court, the underlying evidence revealed a disturbing pattern of behavior toward WHS staff.

Shocking Allegations of Workplace Bullying

One of the most engaging (and troubling) aspects of this case is the alleged conduct of officials toward site personnel attempting to enforce WHS inductions. Documentation and footage presented to the court detailed an environment of extreme intimidation, including:

• Gender-Based Harassment: Reports of officials making derogatory and highly inappropriate sexual comments to WHS staff, including phrases like “Do you want to look at my dick?” when asked for identification or to sign a register.
• Intimidation Tactics: Aggressive verbal abuse aimed at safety officers who were simply trying to fulfill their legal “Primary Duty of Care.”
• The “Blockade” Mentality: Allegations of physical obstruction that prevented concrete pours and disrupted the contractual flow of the project.

Why This Matters for the Construction Industry

For a PCBU, allowing this behaviour isn’t just a culture problem it’s a WHS breach. Under the Work Health and Safety Act, you have a legal obligation to protect your workers from psychological harm and bullying.

Critical Guidance for Principal Contractors

To protect your site and your staff, your WHS strategy must be proactive. Here is how to handle high-pressure Right of Entry situations:

1. Zero Tolerance for Harassment

• Document Every Word: Use body-worn cameras (where legal) or have a secondary witness present during entries. In the BMD case, the CCTV and body-cam footage were the primary reasons the Union couldn’t hide behind a “we don’t know” defence to all charges!
• Report Psychological Hazards: Verbal abuse like the sexual comments mentioned above should be logged as a safety incident. This builds a “paper trail” of behavioural risks that can be used in future court injunctions.

2. Enforce the “Induction First” Rule

The Court confirmed that a site induction is a valid WHS requirement.

• Don’t Waive Compliance: Even if a visitor claims a “Right of Entry,” they must still comply with reasonable WHS directions. If they refuse to sign the register or undergo a safety briefing, they are in breach of section 499 of the Fair Work Act.

3. Use the “BMD Evidence Formula”

The reason BMD won this procedural round is that their evidence was undeniable. To replicate this:

• Maintain Digital Logs: Store all visitor registers and “Notices of Entry” digitally and immediately.
• Identify the Individuals: Ensure your staff is trained to identify specific officials. The Union often tries to claim “corporate ignorance,” but clear footage of a specific person makes that defense impossible.

The Bottom Line

Workplace bullying is a safety hazard. Whether it’s an “idiot consultant” or an aggressive Union official making lewd comments, a PCBU must intervene. The BMD case proves that when you have the evidence, the court will no longer allow organizations to “play dumb” regarding the conduct of their representatives.

Important Links:
https://www.safework.nsw.gov.au/hazards-a-z/violence
https://www.nsw.gov.au/employment/mental-health-at-work
https://www.worksafe.vic.gov.au/workwell

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WHS Right of Entry & Site Security Master Checklist

Category	Action Item	Legal Reference	Responsibility	Best Practice for Difficult Situations
1. ENTRY PERMITS	Verify valid WHS Entry Permit	s 125 WHS Act (QLD)	WHS Manager	If refused: No Entry. State clearly: “No permit, no access.”
1. ENTRY PERMITS	Verify valid Federal Entry Permit	s 494 Fair Work Act	WHS Manager	Required for Union officials. Check expiry dates carefully.
1. ENTRY PERMITS	Confirm Photo ID matches Permits	s 125 WHS Act	WHS Manager	Official must prove they are the permit holder.
2. SAFETY LOGS	Complete Site Safety Induction	s 128 WHS Act / BMD Case	Visitor / Official	Mandatory. Refusal to induct is a breach. Stop work if they bypass.
2. SAFETY LOGS	Sign Visitor / Site Register	BMD v CFMEU [2026]	Visitor / Official	Essential for emergency muster and court evidence.
2. SAFETY LOGS	Inspect PPE Compliance	WHS Regulation	WHS Manager	Must meet site standards (Steel caps, Hi-vis, Hard hat, etc.).
3. EVIDENCE	Activate Body-Cam / Recording	s 37M FCA (Evidence)	WHS/Site Manager	Do not wait for conflict. Record from the first “Hello” at the gate.
3. EVIDENCE	Record Detailed Site Diary Entry	Federal Court Evidence	WHS Manager	Log specific times, names, and exact quotes used by officials.
4. BEHAVIOUR	Challenge “Improper Conduct”	s 500 Fair Work Act	Site Manager	Quote lewd/abusive remarks directly in the log for “Improper Manner.”
4. BEHAVIOUR	Stop Psychological Harassment	PCBU Duty of Care	PCBU / PM	If staff are bullied (e.g. sexual comments), direct official to leave.
4. BEHAVIOUR	Manage Exclusion Zone Breaches	s126 WHS Act	All Staff	If official enters a high-risk zone, call an Emergency Stop immediately.
5. SITE CONTROL	Prevent Physical Obstruction	s146 WHS Act	Project Manager	If blocking concrete pours or gates, document as “Hindering/Obstructing.”
5. SITE CONTROL	Verify “Reasonable Suspicion”	s117 WHS Act	WHS Manager	Ask: “What is the specific safety risk?” They cannot just “fish” for issues.