Tuesday, December 3, 2019

Bill 26 strips farm workers' basic employment rights

This post originally appeared on the Parkland Institute blog.

Farm workers were granted basic employment rights beginning in late 2015 when the former New Democratic government enacted the Enhanced Protections for Farm and Ranch Workers Act (colloquially referred to as Bill 6). Farmers and conservative politicians were extremely hostile to Bill 6, asserting that basic employment rights would imperil the viability of agricultural operations. Despite the absence of evidence that Bill 6 harmed any farms, the United Conservative Party (UCP) promised to eliminate basic farm worker rights if elected.

On November 20, the Kenney government fulfilled this promise when it introduced Bill 26 (the Farm Freedom and Safety Act). This bill strips Alberta agricultural workers of many basic employment rights. Specifically, it precludes farm workers from unionizing, reduces the occupational health and safety protections for workers, makes workers’ compensation coverage optional, and expands exceptions to employment standards. These changes will be particularly harmful to women and children employed on Alberta’s farms and ranches.

Labour Relations

Bill 26 amends the Labour Relations Code to exclude farm and ranch employees from the definition of employee. This exclusion effectively precludes these workers from forming or joining a trade union. This exclusion is contrary to Section 2(d) of the Charter of Rights and Freedoms, which protects workers’ freedom to engage in associational activity.

In 2001, the Supreme Court of Canada (SCC) decided (in Dunmore v Ontario (Attorney General)) that completely excluding agricultural workers from the ambit of Ontario’s Labour Relations Act (LRA) was unconstitutional. Specifically, the vulnerable nature of farm workers means that, farm workers were “substantially incapable of exercising their fundamental freedom to organize without the LRA’s protective regime.”

If challenged, those portions of Bill 26 that exclude agricultural workers from forming or joining a union will almost certainly be struck down as unconstitutional. A Charter challenge is, however, unlikely because a challenge normally requires a factual case to get started. Specifically, it requires a live case of farm workers who have attempted to exercise their associational rights (e.g., collectively bargaining) and failed.

As far as I know, there have been no efforts to unionize or collectively bargain in Alberta’s agricultural industry. This reflects the vulnerability of farm workers as well as the small size and transient nature of most farm workforces. The exclusion of farm workers from the ambit of the Labour Relations Code by Bill 26 makes it unlikely any will try in the future because they would have no protection against termination for organizing and no capacity to strike to enforce their collective bargaining demands. This, in turn, means no challenge is likely to arise.
Injury Prevention

Although Bill 26 is silent on the matter, the government has indicated that farms will no longer be subject to the detailed safety rules set out in the Occupational Health and Safety Code. The rudimentary safety rights set out in Occupational Health and Safety Act would continue to apply.

Injury Compensation

At present, farms and ranches with paid, non-family employees must enroll their workers in the workers’ compensation system—like virtually every other employer in every industry across Canada. Workers’ compensation coverage provides wage-loss, rehabilitation, and fatality benefits to workers. Workers’ compensation also precludes workers from suing their employers if the worker is injured.

Prior to 2015, such coverage was optional and relatively few farms purchased it. Some farms purchased private injury insurance. A 2015 study commissioned by the former Progressive Conservative government found that relying on farmers to purchase private insurance left a significant number of farm workers uninsured or underinsured and the private premiums were more expensive than were workers’ compensation premiums. Private insurance also left farmers open to civil suits when injuries or fatalities occurred.

Bill 26 makes two changes to workers’ compensation. First, it allows farmers to choose to carry either workers’ compensation coverage or private insurance coverage. The scope and nature of the private insurance coverage will be determined by regulation. Consequently, the private insurance may not necessarily provide injury-compensation benefits equivalent to those provided by workers’ compensation. Workers may be required by their employer to pay a portion of private insurance premiums (often called co-pay).

Second, Bill 26 exempts any farm with 5 or fewer employees from the requirement to carry any insurance. Further, family members and workers who have been employed for fewer than 6 consecutive months do not count towards the total of 5 employees. This criterion (see Scope of Exclusions below) means that vast majority of farm workers are likely to be under- or uninsured against injury. Employers may still provide insurance or they may leave it to workers to secure their own insurance coverage.

A less obvious concern is that allowing farmers to purchase private insurance in lieu of enrolling in workers’ compensation may open the door to a greater role for private-sector insurance providers in other industries. Some US jurisdictions allow for the private provision of workers’ compensation insurance. This typically results in poor outcomes for injured workers because private providers seek to minimize claims in order to maximize profitability.

Employment Standards

In 2015, farms and ranches employing paid, non-family workers were made subject to most of the provisions in the Employment Standards Code. The Employment Standards Code sets minimum standards around wages, vacations and statutory holidays, various job-protected leaves, and the termination of employment.

Bill 26 makes two main changes. First, farms and ranches that employ 5 or fewer workers are entirely excluded from the ambit of the Code. This means that none of the basic employment rights that every other worker has apply to workers on these farms. Again, family members and workers employed for fewer than 6 consecutive months do not count towards meeting the 5-person threshold. This change has the effect of excluding most farms from the ambit of the Code (see Scope of Exclusions below) and thereby strips most employment protections from most farm workers.

The effects of this exclusion will be significant for farm and ranch workers on farms with 5 or fewer employees. For example, there will be no minimum wage, vacation time, statutory holidays, or required termination notice for these workers. Excluded workers under 18 will continue to have no limits on what sort of work they can do, under what conditions, and for how long because child labour laws don't apply. Excluded workers will have no access to job-protected parental, compassionate care, family responsibility, or domestic violence leaves, all of which are disproportionately accessed by female workers.

Employers can, of course, voluntarily comply with employment standards. But the reason governments enshrine these rights in legislation is that employers typically do not voluntarily comply with such standards. One consequence of eliminating these rights is that paid farm work will become even less attractive than it already is, thereby likely heightening the existing farm labour shortage.

Further, Bill 26 extends the definitions of agricultural operations to include mushroom farms, sod farms, nurseries and green houses. This change increases the number of workers whose rights have been taken away. The small number of farm workers on farms with 6 or more workers (and thus who continue to fall within the ambit of the Code) continue to have no protections around hours of work and rest periods, or access to overtime provisions.

Scope of Exclusions

The government has not released any public estimates of how many workers are employed in operations of five and fewer employees and, thus, will be excluded from employment standards and mandatory injury insurance. The best source of data on agricultural employment is Statistics Canada’s Agricultural Census. We can use this data to estimate the impact of Bill 26.

The 2016 Agricultural Census suggests there were 33,498 paid farm workers employed on 9,565 farms, yielding an average of 3.5 workers per farm. These workers are evenly split between full-year and part-year (i.e., seasonal) positions. Of the 9,565 farms that employed paid workers, 3,472 farms (36.3%) employed solely part-year workers. The other farms employed some combination of full-year and part-year workers.

The Census data does not perfectly map onto the categories proposed in Bill 26. For example, the Census totals include paid family members (other than owner/operators), who are explicitly excluded from the calculations in Bill 26. And the category of part-year employment does not perfectly map onto the “employed for six consecutive months” criterion of Bill 26. Further, the average number of employees is likely to mask significant differences between a small number of large and/or labour-intensive operations (with more than 3.5 workers each) and a very large number of operations with fewer than 3.5 workers each.

That said, we can draw some tentative conclusions based upon this data:
  • Almost all employees on farms that employ only part-year workers will be excluded from employment standards and mandatory injury insurance because these employees will be excluded from the employee count due to the short duration of their employment and, thus, will push the farm below the “more than 5” threshold.
  • Many workers on farms with at least some full-year employees will also be excluded because the farm will still be below the “more than five” threshold.
I would estimate that Bill 26 will exclude workers on 80% of farms from basic employment rights guaranteed in legislation and the requirement to have at least some form of injury insurance.

Absence of Rationale

Bill 26 will have a significant deleterious effect on farm workers, who are already economically vulnerable. Oddly, there is seemingly no compelling reason to make these changes. In the press release announcing Bill 26, the government asserts that the bill “fulfils the government’s commitment to consult with farmers and ranchers to build farm workplace legislation that works for them.”

This rationale ignores that the purpose of employment legislation is primarily to protect workers from, and attenuate the consequences of, exploitative and injurious work. Bill 26 entirely ignores the primary purpose of employment law. Instead, the government emphasizes the need to minimize the direct and indirect costs of regulation for employers in order to address the “damaging policies of the previous government to ensure sustainable farms.”

There is, however, no evidence that the provision of basic employment rights to farm workers in 2015 resulted in significant economic harm to agricultural employers. For example, there has been no change in the trajectory of farm numbers, which has been slowly diminishing since the 1940s (mostly through the consolidation of smaller, unviable farms into larger ones).

Obfuscation of Effect

The government’s press release goes out of its way to obscure the actual impact of Bill 26:
  • Allowing farmers to purchase inferior or no injury insurance (thus leaving workers vulnerable to being uninsured or underinsured) is framed as “allow[ing] employers to have choice".
  • The elimination of basic employment rights (e.g., minimum wage, child labour laws, job-protected parental leave) for most farm workers is framed as “reducing regulatory costs” and the practical impact on workers is ignored.
  • Precluding workers from forming or joining a union (thereby violating workers’ freedom of association) is not even mentioned.
  • Eliminating most detailed safety rules (which will make farms less safe) while retaining only the most rudimentary of safety rights is framed as “ensur[ing] basic safety standards on all farms”.
Overall, the government’s communication about Bill 26 has been heavily torqued and the impression it gives about Bill 26’s impact is misleading.

Analysis

Overall, Bill 26 has three broad effects. First, its strips farm workers of basic employment rights enjoyed by every other worker in Alberta. This includes the right to join or form a union, the right to be enrolled in workers’ compensation, and (for 80%) the possession of basic employment standards rights. It also eliminates the application of most safety rules.

Second, the elimination of farm workers’ right to join or form a union violates these workers’ Charter freedom to associate.

Third, these changes will reduce costs to agricultural employers by transferring them to workers in the form of poorer working conditions. Ironically, a bill touted to “help get Albertans back to work” makes paid farm work less attractive and may further intensify the agricultural labour shortage.

In rolling out Bill 26, the government has intentionally hidden the negative consequences of the bill and ignored the absence of a defensible rationale for these changes. It is difficult to see the changes as anything other than political pandering to farm operators and their allies while punishing vulnerable workers.

-- Bob Barnetson

Tuesday, November 26, 2019

New course: LBST 415: Sex work and sex workers

After more than a year of work, LBST 415: Sex Work and Sex Workers is now open for registration, with new intakes on the first of every month. This course examines the operation and regulation of sex work in Canada.

The course focuses on the experiences of sex workers—often told through their own writings—to identify how the structure and regulation of the sex industry affects them. This includes examining how sex workers experience exploitation and exert agency over their lives at the same time.

Of particular interest is how different jurisdictions approach regulating sex work. These very different approaches result in better and worse working conditions as well as shape the relationships between sex workers and law enforcement, managers, and clients.

This course is not for the faint of heart. But if offers students in labour studies, women’s and gender studies, or sociology with an opportunity to explore this very interesting intersection of work and sex.

-- Bob Barnetson

Tuesday, November 19, 2019

Will Alberta's unions resist?

Two weeks ago, a friend and I were kicking around labour’s response to the Kenney government’s series of attacks on workers’ rights. In no particular order, they include:
  • Forcing votes on union drives no matter the level of worker support.
  • Interfering in signed collective agreements and then demanding rollbacks of 2-5%.
  • Giving itself the power to enact secret and binding bargaining mandates on public-sector employers, thereby making future bargaining almost meaningless.
  • Transferring management of some public-sector pensions to a lower-performing management company, perhaps to shore up the oil-and-gas industry.
  • Looking ahead, likely public-sector layoffs.
The question we wrestled with was whether these actions were business as usual for conservative governments (resulting in perfunctory union resistance) or if (perhaps together) they represented an escalation that would trigger a significant response from labour.

The basic deal underlying modern labour relations is that (1) employers agree to bargaining in good faith with unions and (2) unions agree to limit strikes to small, predictable windows. This all gets codified in labour law that the state administers.

The state isn’t, of course neutral, being both an employer itself and beholden to capital. And there are many examples of governments having bigger or smaller goes at organized labour (Klein, Harris, Redford, but cf Harper and Ford). For the most part, though, conflict tends to be episodic, contained and relatively muted (quiet cooperation is actually the norm). This reflects that governments are interested in social stability. (More recently, Charter-based restrictions on what they can get away with in the medium term).

Unions generally cooperate with governments because there are organizational benefits to doing so and penalties to resisting. In practice, there is a degree of mutual accommodation, worker demands tend to be monetized, and the union manages any worker discontent. (These dynamics are described by labour scholars as incorporation, economism, and bureaucratization.)

When governments pick fights with unions, this can embolden the more radical voices with unions. Union often act to manage demands for overt conflict by emphasizing communication-based responses and seeking to reign in direct job action.

Union responses to Kenney’s recent series of attacks have been a bit different. There certainly has been an air war, but unions are also investing resources in developing the capacity of their members to take direct action against their employers (whether the government or a government-appointed agency, board or commission).

It is an open question whether Alberta unions have any real appetite for worker-directed job action (e.g., sick outs, over-time strikes, wildcat strikes). My friend correctly noted:
  • Alberta’s labour movement has a history of folding up when labour conflicts with the government start to intensify (as they did in 1995),
  • certain unions have folded up their tents early in exchange for favourable deals (e.g., Alberta Teachers Association), which often makes it difficult for other unions to buck the pattern these unions set, and
  • there will almost certainly be significant financial and legal costs if workers engage in an illegal strike. (And, given Kenney’s history as a federal politician, I suspect that any job action will be illegal or will become illegal almost as soon as it happens.)
I countered that unions are spending resources to develop the member infrastructure necessary for direct action. This suggests that unions (1) see direct action as a viable counter-weight (although perhaps more as a threat, than a weapon), and, (2) by mobilizing members, must be prepared to accept whatever risk of unplanned job action that accrues from having mobilize members. (I'd had a lot of coffee at this point and was maybe a bit amped up!)

Obviously, labour is not monolithic. Different unions (and even different locals within one union) can approach matters differently. For example, Alberta’s faculty associations have very different takes on how to proceed in the face of funding cuts and expected rollback demands. These sorts of tensions enable the government to pick off the weakest unions and reduce the size of the strike threat.

So far, the Alberta Union of Provincial Employees, the Health Sciences Association of Alberta, and the Canadian Union of Public Employees seem to be talking the toughest. I’ve no sense of where the United Nurses of Alberta are on job action. They have hired organizers and they are fighting with the government in court. But I wonder about the organization’s willingness to strike illegally. The willingness of the teachers to resist (they have taken 6 zeros in 7 years) is also an open question.

The answer may come down to how hard Kenney goes at unions. The harder the government attacks, the fewer incentives there are for unions to retrain calls for direct action. And the harder it is for the conservative elements within unions to resist demands for direct action.

A different way to look at this question is how far is the Kenney government prepared to go to achieve whatever its goals might be? The harder the government pushes, the greater the risk that it will end up triggering profound social disruption (e.g., workers walk out). What this would achieve is a bit of  mystery. Perhaps it could be used as a pretext for radical revision of the basic deal that underlies labour relations (although it's not clear who that benefits). Perhaps it is simply ideological or a distraction from some other project.

-- Bob Barnetson
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Tuesday, November 12, 2019

Athabasca seeks 2% rollback from support staff

Last week, Local 69 of the Alberta Union of Provincial Employees (which represents support staff at Athabasca University) received a letter from the university’s director of HR, Charlene Polege. The letter provides some insight into how public-sector labour relations are proceeding under the Kenney government.

Some quick background: AU and AUPE are presently in the last year of a three-year deal. This contract included a two-year wage freeze plus a wage-reopener in year three. If AU and AUPE could not agree on a wage settlement, the wage issue would be referred to arbitration. Negotiations on the re-opener never got started (in part, because Bill 9 stalled the arbitration process) but things appear to be getting back on track.

Consequently, AU sent AUPE a letter last Tuesday that read (in part):
This letter is to provide you with notice that Athabasca University has been given a mandate by the Alberta Provincial Government with respect to the 2019/2020 wage re-opener, and that as a result, Athabasca University anticipates that it will be tabling a proposal of negative two percent (-2%) when negotiations resume. 
We wish to be clear that the Board of Governors of Athabasca University is responsible for setting its mandate with respect to the 2019/2020 wage re-opener. There is sufficient certainty at this time that the Board of Governors will adopt the above-noted position in negotiations. As such, and regardless of whether or not Athabasca University was required to disclose its position in the circumstances, it wishes to provide this information to AUPE in the interest of transparency.
So, the government gave the university a bargaining mandate, but did not disclose what the mandate is. But, “as a result”, the university will be tabling a 2% rollback as its opening proposal (AU had previously proposed 0%). Given that this rollback jives with statements by the Minister of Finance about seeking a 2% rollback from AUPE at other tables, I think we can safety assume that the government’s mandate was -2%.

Yet, in the next sentence, Polege states that “the Board of Governors is responsible for setting its mandate with respect to the 2019/2020 wage re-opener.” That sentence sits oddly with the meaning of the word mandate (i.e., a binding directive from the government). Hmmm.

So let’s unpack this letter:
  • there is a (apparently secret) government mandate,
  • but somehow that mandate isn’t binding on the Board,
  • but the Board (miraculously) adopted the exact same mandate,
  • and is now seeking to grind the wages of the employees in its lowest paid, mostly female, and mostly Athabasca-based bargaining unit,
  • even though AU ran a $14m (~10%) operating surplus in 2018/19 and will run a big surplus again (~$10m) in 2019/2020 despite small cuts (~$3m) in operating grants and could easily afford a small cost-of-living adjustment,
  • all while the university continues to hire more and more senior administrative staff.
That messaging probably isn’t going to help with the pitifully bad morale among AU staff or concerns about the local economy.

And the tortured “there’s a mandate, but there isn’t, but there is” dance does nothing to remedy the large and growing number of employees who don’t trust senior administrators to be honest (or even coherent).

While this AUPE wage reopener is almost certain to go to arbitration, it matters because it shows us what the next full rounds of bargaining (starting in the spring of 2020) are going to look like at AU, in PSE, and the public sector more broadly.

I think we can reasonably expect:
  • secret government mandates for salary rollbacks (which may be unconstitutional),
  • PSE executives being used as human shields by conservative politicians (meh?), when this “I gotta talk to the manager in the back” bargaining tactic goes badly,
  • PSE students seeing significant disruptions in their studies when staff engage in strikes or get locked out, and
  • the fabric of the institutions (which, despite being big bureaucracies, run only because staff are conscientious and have long-standing relationships with coworkers) further fraying as staff decide “fuck it” and start doing the just minimum.
This is a shameful way for politicians, Board members, and university administrators to treat their staff (especially support staff). About the only bright spot is that many PSE employees are recognizing that they are workers and will need to fight their employers (and the government), just like every other worker.

-- Bob Barnetson

Tuesday, November 5, 2019

Budget 2019: Bad news for labour market training in Alberta

There has been much written about the Kenney government’s attack on organized labour in its 2019 budget (which include layoffs and wage freezes, as well as interfering in ongoing arbitrations and future collective bargaining). Alberta’s 2019 budget also purports to improve labour-market training opportunities in order to get Albertans back to work:
“Supporting a highly skilled labour force and a competitive business environment will make lasting contributions to Alberta’s economy. Alberta will once again become the destination of choice for investors and skilled workers.” Travis Toews, Minister of Finance
A closer examination of the labour-market training pieces of the budget suggests this is mostly smoke and mirrors. The government is reducing its funding of post-secondary institutions (which do most of the training) by 5 per cent this year. The institution-specific cuts are unevenly distributed with no suggestion that the cuts reflect anything other than capacity to absorb the cuts. 

These cuts hamstring institution’s ability to deliver the education and skills training alleged desired by the government. Even more concerning is analysis that suggests that additional cuts of 20 to 25% are planned by 2022/23.

These cuts are to be offset, in part, by rapid tuition increases, with institutions allowed to increase tuition by 7% per year for the next three years. Tuition increases, combined with eliminating the tuition tax credit, reducing the teen minimum wage, and closing the Summer Temporary Employment Program (STEP), will make it much harder for students to afford to enroll in post-secondary education and training.

So, if you are playing along at home, your bingo card now shows fewer training opportunities that are less accessible to future workers. Sounds promising, so far!

While governments frequently talk about addressing skills shortages, the evidence that skills shortages actually exist is weak to non-existent (there is a long line of research suggesting that a great many workers are actually under-employed). When there are skills shortages (which tend to be industry specific and geographically localized), such shortages are often difficult to predict and almost impossible for institutions to react to (because mounting and delivering training takes time and the labour tends to adjust). 

A new post-secondary funding mechanism (likely with labour market metrics) is to be introduced in the coming months. This was tried in the mid-1990s and basically didn't work. Meh.

Expected skill shortages in the skilled trades are a recurring UCP talking point. The key barrier to qualifying more trades people lies with employers’ unwillingness to offer adequate apprenticeship opportunities. The last data I saw showed that only 19% of employers that use qualified trades people participate in training apprentices. More money (or more directive finding mechanisms) for post-secondary institutions won’t alleviate that bottle neck.

The government also announced an additional $4 million to expand work experience and apprenticeship programs for elementary (!!!), junior and senior high-school students. The current Registered Apprenticeship Program (RAP) provides a useful pathway for students interested in the trades. But there are issues.

Research suggests that Alberta students sometimes struggle to find apprenticeships and the female participants struggle against long-standing gender discrimination. One in five students reports an occupational injury during a RAP apprenticeship. One in twenty RAP participants (whom we should remember, are kids) is injured so severely that they cannot work in the field.

Overall, there is little reason to believe that the Kenney government is serious about enhancing labour market training opportunities. Rather, this appears to be an elaborate rhetorical offensive to distract Albertans from the profound damage that public-sector cuts will do post-secondary education. These cuts, of course, are necessary only because the Kenney government gave away $4.5 billion in corporate tax breaks. (Which, as predicted, corporations pocketed, instead of creating jobs).

-- Bob Barnetson

Tuesday, October 29, 2019

Presentation: OHS convictions and fines in Sk and AB

Last Friday, the Alberta Workers’ Health Centre hosted a presentation by Sean Tucker (University of Regina). Tucker is in the process of examining OHS prosecutions, convictions and penalties in Alberta and Saskatchewan. Sean graciously consented to allow me to present some of his slides. This is still a work in progress, so the data and the conclusions should be considered tentative.

Both Alberta and Saskatchewan have secured about 110 OHS-related convictions between 2009 and 2019. Alberta has about four times the population of Saskatchewan. If you controlled for population, Saskatchewan would have secured twice as many convictions for fatalities and nearly 5 times as many convictions for serious injuries. Interestingly, Alberta has more than twice as many OHS prosecutors as Saskatchewan.



The median (midpoint, not average) fine associated with prosecutions of organizations is much higher in Alberta than in Saskatchewan. The same pattern holds true for prosecutions of individuals but the fines are much lower.


A compelling presentation of the data compares the average (and highest) files for OHS fatalities and serious injuries with the maximum potential fine. (One addendum to this slide: the maximum fine for a first conviction in Alberta is $500k; the $1m ceiling is for second and subsequent convictions).


What the slide above shows is that, despite general deterrence being a key purpose of fines, neither Alberta nor Saskatchewan has had much luck securing anywhere near the maximum penalty. There are a number of reasons for this (including sentencing considerations).

One of Tucker’s questions was whether increasing the maximum Saskatchewan penalty from $300k to $1.5m would result in higher fines. The answer, after 5 years, is no for fatalities but perhaps yes for serious injuries (although both fines remains well below the maximum). This analysis provides some support for criticisms that potential fines are often far higher than actual fines.



The post-presentation discussion (which continued during a small lunch gathering) was quite interesting. A key question was whether jailing employers who kill workers might serve as a greater safety incentive than increasing fine levels.

-- Bob Barnetson

Tuesday, October 22, 2019

OHS convictions and penalties talk Friday, Edmonton

This Friday, the Alberta Workers' Health Centre will be hosting a talk by Dr. Sean Tucker (University of Regina) in Edmonton that examines OHS convictions and penalties in Alberta and Saskatchewan. This should be an interesting talk and admission is free.

An analysis of financial penalties for OHS convictions in Alberta and Saskatchewan, 2009-2019

Friday, October 25, 10 to 11:30 am

Alberta Workers' Health Centre Board Room
6th Floor, 12323 Stony Plain Road
Edmonton, Alberta

Dr. Tucker will present results of an analysis of financial penalties resulting from OHS prosecutions in Alberta and Saskatchewan between 2009 and 2019. 

The analysis will highlight differences in the size of penalties within and between these two Prairie provinces, and by type of incident (i.e., serious injury vs. worker fatality). Implications for deterrence and injury prevention will also be discussed.

-- Bob Barnetson